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

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FIRST APPEAL NO.75/2008.

ORDERS RESERVED ON 4.3.2009.

DATE OF DECISION: 18.03.2009



In the matter of:



Anil Kumar Sood son of late Shri Asha Ram Sood, Resident of 56, Block No.3-A, Lane-V, Sector 1, New Shimla-171 009.

… … Appellant.



Versus



H.P. Housing and Urban Development Authority, through its

CEO-Cum-Secretary, Nigam Vihar, Shimla-171 002.

… …. Respondent.

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

Honble Mrs. Saroj Sharma, Member.



Whether approved for reporting? No



For the Appellant: Mr. B.N. Mehta, Advocate.

For the Respondent: Mr. Pawan Kaprate, Advocate.

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O R D E R



Justice Arun Kumar Goel (Retd.), President (Oral).





1. Admitted facts giving rise to this case are, that the appellant applied for the grant of a flat under Self Financing Scheme floated by the respondent in May, 1986. He had deposited Rs.1,72,733/- upto 6.3.1987. Tentative cost of this flat was Rs.1,64,250/-. Final cost of the flat was Rs.3,20,397/- as per the respondent.. Since the appellant had opted for a particular flat, he paid Rs.19,224/-. For the purpose of this appeal, this fact is not relevant.



2. Possession was to be given in the year 1988. Admittedly it was handed over in May, 1995. Now the dispute starts.



3. Appellant filed an earlier complaint that was allowed and parties are not variance that appellant has been given benefit of the outcome of this litigation.



4. After delivery of possession, respondent demanded Rs.2,15,238/- being the interest component on the instalments from 4.5.1995 to 30.6.2002. This amount was not payable according to the appellant, whereas according to respondent since instalments were belatedly paid, therefore, it is legitimately entitled to recover the same from the appellant. Having felt aggrieved by this demand, appellant preferred Complaint No.385/2002. It has been dismissed vide impugned order dated 27.8.2007, hence this appeal.



5. From the narration of the above facts, it is evident that against the final cost of the flat in question being Rs.3,20,000/-, appellant has paid a sum of Rs.3,37,847/-. Receipt of this amount is again not in dispute. In these circumstances we are unable to understand muchless appreciate the stand of the respondent that the appellant is liable to pay a sum of Rs.2,15,238/- by way of interest from 1995 to 2002. In this bahalf it may be appropriate to notice that appellant had also filed a writ petition wherein stay against recovery was granted by the Hon’ble High Court. After its disposal, he filed the complaint wherein also stay was operative in his favour. Against the admitted sum of Rs.3,20,000/-, the final cost assessed by the respondent, appellant has admittedly paid Rs.3,37,847/- when he was put in possession. We may clarify here that part of this amount was deposited by the appellant and part of it was adjusted from interest that was held payable due to belated delivery of possession by the respondent. Once this conclusion is arrived at, then the decision of this appeal need not detain us because on 16.5.1995 he had already paid/got adjusted Rs.3,37,847/- and this works out to more than the agreed instalments between the parties. That being the position, the impugned order needs to be set aside in this appeal, and prayer to the contrary forcefully urged by the learned Counsel for the respondent is without merit.



6. At this stage Mr. Kaprate on behalf of the respondent submitted that appellant cannot be allowed to take benefit of the order of the Hon’ble High Court of Himachal Pradesh in the writ petition filed by him, as well as of the order passed by Foras under this Act in different proceedings. As according to him if this plea is upheld, it will tantamount to permitting the appellant to blow hot and cold in the same breath. We find no substance in this submission and the same is thus rejected.



7. If the contention of Mr.Kaprate is upheld that despite the appellant having paid a sum of Rs.3,37,847/-, a further sum of Rs.2,15,238/- is still due and outstanding payable by the appellant, it will tantamount to undue enrichment of the respondent-Authority. That being the position, the contention to the contrary urged by Mr. Kaprate has no substance and the same is accordingly rejected.



8. No other point was urged.



In view of the aforesaid discussion, we allow this appeal and consequently set aside the order passed by the District Forum below in Complaint No.385/2002 on 27.8.2007, the same is allowed by holding that no amount is payable by the appellant to the respondent.



Learned Counsel for the parties have undertaken to collect authenticated copy of this order free of cost from the Court Secretary as per Rules.



Shimla,

March 18, 2009.



( Justice Arun Kumar Goel ) (Retd.)

President





( Saroj Sharma )

Member.