H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.

----

FIRST APPEAL NO.213/2008

ORDERS RESERVED ON 18.3.2009.

DATE OF DECISION: 30.03.2009

In the matter of:



Shri Vinod Parkash Gupta son of late Shri Naval Kishore Gupta, Principal’s Residence, Dayanand Public School, The Mall, Shimla-171 001, H.P.

… … Appellant.



Versus



Himachal Pradesh Housing Board & Urban Development Authority through its C.E.O. Cum Secretary, Nigam Vihar, Shimla- 171 001.

… … Respondent.

-----------------------------------------------------------------------------------------------



Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekhar Sharma, Member.



Whether approved for reporting? No.



For the Appellant: Shri Vijay Arora, Advocate.

For the Respondent: Shri K.C. Sankhyan, Advocate, with S/Sh. Rajesh Sharma and Kalma Nand Sharma, officials of the respondent.

-----------------------------------------------------------------------------------------------



O R D E R



Justice Arun Kumar Goel (Retd.), President.



1. Appellant is aggrieved from the order passed by District Forum, Shimla, in Complaint No.218/2003, dated 24.6.2008. By means of this order, complaint filed by the appellant has been dismissed. Hence, this appeal.



2. Facts by and large giving rise to this appeal are admitted, and are being briefly noted. 6th Self Financing Scheme for residential complex below Bishop Cotton School in Kasumpti zone of New Shimla in Shimla area was floated by the then Shimla Development Authority. It may be clarified here that by efflux of time and change in law from time to time as on date admittedly respondent is successor-in-interest for all purposes of the said Authority. Appellant submitted his application for allotment of a plot in response to this Scheme. He was registered in the said scheme for plot Type (B) vide Annexure R.1 dated 21.12.1990. Tentative cost of this plot was Rs.96,000/-. Its final cost according to parties was Rs.2,84,427/-. Vide Annexure R.2, appellant on 18.5.1992 was informed that he has failed to deposit 15 monthly instalments from 3/1991 and thus he was to be charged interest @ 18% per annum. This was followed by reminder dated 20.7.1992, Annexure R.3. Vide Annexure R.4, dated 23.9.1992, it was pointed out to the appellant that completion and handing over of the unit registered in his name was going to be delayed beyond the stipulated time due to circumstances beyond the control of the Authority. Revised tentative cost was intimated to the appellant on 14.1.1994 at Rs.1,92,000/-. This is not relevant because appellant has not challenged the final cost worked out by the respondent of the plot in question at Rs.2,84,427/-.



3. Appellant vide Annexure R.8 on 10.7.1997 besides other things, agreed to pay Rs.15,102/- towards interest as also being prepared to deposit Rs.96,885/-, the remaining cost of the land. In this communication he also asked the appellant to allow equal amount of interest on the sum deposited by him as it was not in a position to allocate the plot within the stipulated period of time. This according to the appellant would be in consonance with justice, equity and fair play. Thus he called upon respondent to re-examine the matter after keeping in view what he had mentioned in his communication, R.8. Annexure R.8 of the appellant was acknowledged and replied to by the respondent on 16.7.1997 vide Annexure R.9, whereby he was called upon to deposit Rs.96,885/- immediately so as to execute the lease deed. In this letter claim of interest was also justified having been correctly levied on delayed payment. Delay in allotment of plot was tried to be justified by the respondent being not intentional. Thus, the appellant was further asked to take immediate action and also to deposit the interest as early as possible.



4. Vide Annexure C.1 dated 18.6.2002, a demand of Rs.30,648/- was created by the respondent towards interest against the appellant, and on his failure to do the needful, it was mentioned in this communication that the matter would be handed over to the Board’s Counsel for initiating eviction petition in the Court of law. Case of the appellant is that respondent was demanding interest on belated payments, and he is also entitled to interest at the same rate for the period the amount paid by him from time to time was utilized by the respondent until possession was delivered to him. He thus wanted to be allowed the interest vide Annexure C.2 dated 10.7.2002 on the same basis. His prayer was turned down vide communication of the respondent dated 27.7.2002. This forced the appellant to file Complaint No.218/2003.



5. After going through the complaint file what we understand is, that the appellant is claiming interest on the amount that was deposited by him from time to time, as the respondent failed to deliver possession of the plot within reasonable time without justifiable cause. His plea is very simple, that because the amount was retained by the respondent till possession was delivered to him, he cannot be deprived of the interest.



6. This is also being claimed on the analogy that the respondent as a high contracting party cannot claim interest on one hand so far its outstanding amount payable by him is concerned, and utilizing the amount deposited by him without its any productive use/benefit to him, (the appellant). Claim of the appellant was contested and resisted by the respondent, and by referring to Annexure R.1 to R.6, it justified its claim for interest while repudiating relief claimed by the appellant. In addition to this estoppel due to his acts, conduct, deeds and acquiescence is also set up as a ground for rejecting the complaint. It was also set up as defence by the respondent that after taking possession, an allottee cannot question the pricing in the light of the decisions of the Hon’ble Apex Court.



7. Allotment of ‘B’ type Plot No.89/3, Sector-3, New Shimla to the appellant is not in dispute under the 6th Self Financing Scheme, that was floated in the year 1988/89. At the time of hearing, copy of the scheme was produced by Shri Sankhyan, as directed on 8th January, 2009 by us.



8. In the aforesaid background, learned Counsel for the appellant submitted that the respondent was not only expected, but was duty bound in law to deliver the possession of the plot in question within reasonable time, and as a high contracting party it cannot be allowed to misuse and/or abuse its power in the matter of delivery of possession of the plot. Here the date when possession of the plot was delivered assumes significance and as already noted it is admittedly 14.10.1996. Appellant had deposited part of the price payable for this plot before this date is again not disputed by the respondent. It was being utilized by the respondent is a fact we cannot ignore. Therefore, the submission of Shri Sankhyan that in the face of the terms and conditions attached with Annexure R.1, appellant is not entitled to claim any interest on the amount deposited by him, does not appear to be prima facie sustainable in the eyes of law or equity.



9. We are alive to the situation that rights of the parties are fructified by terms of a contract, which in this case was to come into existence after the execution of the Hire Purchase Agreement of the plot in question between the parties. Then should the respondent which is a wholly Himachal Pradesh Government owned and controlled institution over which the State has pervasive control be allowed to say that it should be allowed to go scot-free by doing anything and everything? Our answer would be, no. For taking this view we place reliance on a decision of the Hon’ble Supreme Court in the case of Cental Inland Water Transport Corporation Ltd. and another V. Brojo Nath Ganguly and another, AIR 1986 SUPREME COURT 1571. Therefore, submission of Shri Sankhyan that his client is not liable to pay interest on the amount that was deposited by the appellant, does not hold good.



10. We have no hesitation by holding in this behalf, that the respondent is a high contracting party and the appellant is in no win situation so far allotment of plot to him by the former is concerned. Reason being that he has either to accept it on the terms howsoever heavily loaded those may be in favour of the respondent or else be satisfied to decline the allotment. Therefore, stand of the respondent in their reply as also urged at the time of hearing of this appeal, has no merit.



11. Faced with this situation Shri Sankhyan referred to a decision of the National Commission in the case of Himachal Pradesh Housing & Urban Development Authority V. Satish Kaul, Revision Petition No.1835 of 2004 dated 31.7.2007. While disposing of this revision petition, reference has been made by the National Commission to two decisions of the Hon’ble Supreme Court in the case of Chief Administrator, Puda and another V. Shabnam Virk (Mrs.), (2006) 4 Supreme Court Cases 74 and State of Punjab and Anr. V Mewa Singh, (2006)9 Supreme Court Cases 276, (=AIR 2006 SUPREME COURT 3491).



12. After having gone through these three decisions, we are of the view that they are not relevant in the context of the controversy involved in this appeal besides being distinguishable on facts. So far decision of the National Commission is concerned, the controversy involved in this case was that the District Forum and State Commission had allowed the excess amount charged by the appellant over and above the sum of Rs.11,86,000/- from other similarly situate allottees in the same block alongwith interest @ 12% per annum from the date of payment till the date of refund. That is admittedly not the controversy in the present appeal before us. Case of the appellant is not that he is not liable to pay the finally enhanced cost or interest thereon. As such, this decision of the National Commission has no relevance in the context of the controversy involved in this appeal.



13. So far decision of the Hon’ble Apex Court in the case of State of Punjab & Anr. V. Mewa Singh, supra, is concerned, the controversy in this case was that the respondent as co-sharer in the land applied under the scheme framed by the Development Authority for the outstees, filed writ petition claiming to be entitled as a group of co-sharers. While allowing the petition, no relief was granted to him, as his case was not pressed. He then petitioned to the Punjab Urban Development Authority praying for allotment on the basis of original application in oustees’ category. In his affidavit he agreed to pay the then prevalent land rate whereas High Court allowed the rates prevailing in 1985. In this background, Hon’ble Supreme Court held it not to be proper, as the Court proceeded on the presumption that in the earlier writ petition relief had been granted to respondent and further that he had agreed to the prevalent market rates. Again admittedly that is not the situation in the present case because appellant is not disputing the claim of the respondent, either towards cost or levy of interest as detailed in the preceding paras.



14. Similarly in the case of Chief Administrator, PUDA and another v. Shabnam Virk, supra, the respondent had undertaken to pay the enhanced price in case of any upward increase in price. Its binding effect was held in favour of Punjab Urban Development Authority, and the plea of the respondent that in the absence of any actual increase in the cost of construction he was not liable to pay increased cost, was held untenable. Again this decision is distinguishable and therefore no benefit can be derived by the respondent in this case. To the contrary on examination of this case, we are of the view that appellant is entitled to and respondent is liable to pay interest on the amount deposited by him at the same rate from Ist January, 1991 till 14.10.1996 i.e. till the date when possession was delivered to him and the District Forum fell into error while rejecting his said claim. This date 01.01.1991 we have fixed after allowing to the respondent time upto this date for delivery of possession by the respondent to the appellant. Ordered accordingly.



15. During the course of hearing, we specifically asked learned Counsel for the appellant as to what were the reasons for inordinate delay in the delivery of possession of the allotted plot to the appellant. Except for harping on what is contained in the communications of his client filed with reply to the complaint, he could not justify the delay. In a given case there may be plausible reasons for delay. But then those have to be properly explained on facts. Mere saying that delay was beyond control is no explanation giving reasons for delay. As such no leverage can be given to the respondent on this ground.



16. No other point was urged.



In view of the aforesaid discussion while allowing this appeal, order passed by the District Forum below is hereby quashed and set aside, and complaint No.218/2003 is allowed in the following terms:-



(a) Appellant is held entitled to interest on the amount that has been deposited by him from time to time at the rate at which it has been charged/being claimed by the respondent from him from 1.1.1991 till 16.10.1996;



(b) Respondent is directed to calculate and work out the amount of interest in terms of (a) above on the payments made by the appellant to it;



(c) In case the appellant has paid balance outstanding amount as well as interest claimed to the respondent, in such a situation, on calculation of the amount of interest, the same shall be paid to the appellant by the respondent by or before 30.4.2009;



(d) In the event of failure to comply with (a) and (b) above, appellant shall be entitled to recover the amount by levy of execution.



(e) Appellant is also held entitled to costs of the complaint as well as of this appeal quantified at Rs.10,000/-.



Subject to above modification, appeal stands finally disposed of.





Learned Counsel for the parties shall collect copy of this order free of cost from the Court Secretary as per Rules.



Shimla,

March 30, 2009.



( Justice Arun Kumar Goel ) (Retd.)

President





( Saroj Sharma )

Member





( Chander Shekhar Sharma )

/BS/ Member.