C.C. No. 299 of 23.10.2008
Decided on : 23.4.2009

1. Darshan Singh S/o Gulzar Singh, R/o L.I.G 116, Model Town, Tehsil & District Bathinda.
   .... Complainant
   Versus
   
   Improvement Trust, Bathinda through its Executive Officer, Bathinda
   ..... Opposite party

Complaint under section 12 of the Consumer Protection Act, 1986


QUORUM:-
Dr. Phulinder Preet, Member
Sh. Amarjeet Paul, Member


For the complainant : Complainant in person
For the opposite party : Sh. M.R Gupta, Advocate


O R D E R.


DR. PHULINDER PREET, MEMBER:-

1. In brief, the case of the complainant is that he has purchased booth/shop No. 25 from the opposite party under the Development Scheme of Ahata Pritam Singh Sidhu, Bathinda for Rs. 72,000/- and paid a sum of Rs. 18,000/- 1/4th of the total amount to the opposite party at the time of allotment of shop. Remaining amount to the tune of Rs. 54,000/- was paid in five equal instalments plus interest thereon @ 12% P.A. The details of amount due and paid alongwith interest, due date of instalment and payment thereof are given hereunder :-

Instalment
Due date
Amount of instalment
Amount of interest
Amount of penal interest
Total amount paid
Date of payment
Ist
10/08/88


Rs.10,800/-
Rs.3,240/-
-
Rs.14,040/-
08/12/88


Second
16/2/1989
Rs.10,800/-
Rs.2,592/-
-
Rs,13,392/-
26/2/1990
Third
16/8/1989
Rs.10,800/-
Rs.1,944/-
-
Rs.12,744/-
26/2/1990
Fourth
12/02/90


Rs.10,800/-
Rs.1,296/-
Rs.131/-
Rs.12,227/-
08/03/90


Fifth
16/8/1990
Rs.10,800/-
Rs. 648/-
Rs.430/-
Rs.11,878/-
08/11/90


After making the payment as mentioned above, no demand was ever made from the complainant by the opposite party till 28.8.2008. He applied for issuance of No Due Certificate to the opposite party. To his utter surprise, opposite party has raised an illegal demand to the tune of Rs. 21,417/- from him vide letter No. 2287 dated 28.8.2008. Under compelled circumstances and by coercive methods adopted by opposite party, complainant deposited a sum of Rs. 21,739/- instead of Rs. 21,417/- vide receipt book No. 30311 dated 2.9.2008, but he wrote letter dated 29.8.2008 to the opposite party lodging protest. It is averred by him that as per the agreement, full and final payment was made by him on 18.11.1990 and after that, no further demand was ever made from him by the opposite party and opposite party was estopped by his act and conduct from raising the said demand after such a long period. In these circumstances, he alleges that the demand raised from him is illegal, null and void and there is deficiency in service on the part of the opposite party. Hence, this complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred as the 'Act') for directing the opposite party to refund him the amount of Rs. 21,739/- alongwith interest @ 18% P.A from the date of deposit till its realization and to pay him a compensation of Rs. 50,000/- on account of mental tension and agony suffered by him.

1. The opposite party filed written version taking legal objections that present complaint is not maintainable in its present form; as per clause 12 of Form-D and clause 15 of the agreement for sale, dispute is liable to be referred to the Arbitrator; intricate questions of law and facts are involved, as such, dispute should be relegated to the civil court; complaint is false and frivolous and is liable to be dismissed with special costs; complainant has not approached this Forum with clean hands and has concealed true and material facts from this Forum. On merits, it is admitted that booth No. 25 was allotted to the complainant and he deposited 25% of the amount of sale consideration as earnest money, but he did not pay the remaining amount in instalments within time as per the agreement, as such, opposite party is entitled to claim simple interest @ 12% and penal interest @ 6%. It is further submitted that as the complainant applied for No Due Certificate, the opposite party checked his account and found that there is balance amount due towards the complainant and the same was intimated through letter dated 28.8.2008 which was paid by him without any protest. Remaining averments in the complaint have been denied and a prayer has been made for dismissal of the complaint.
2. In support of his case, complainant tendered in evidence his own affidavit Ex.C.1 and copies of documents Ex.C.1 to Ex.C.9. On the other hand, learned counsel for the opposite party filed affidavit Ex.R.1 of Sh. Gora Lal, Executive Officer and also tendered in evidence the documents Ex.R.2 to Ex.R.7.
3. We have heard the complainant in person and the learned counsel for the opposite party at sufficient length and have gone through the record carefully and also considered the written arguments filed by the parties.
4. At the outset, complainant has himself submitted that he has paid all the instalments of sale consideration as per schedule of payment alongwith interest and penal interest as demanded by the opposite party. When he applied for No Due Certificate in August, 2008, opposite party raised demand of Rs. 21,739/- as a pre-condition to issue No Due Certificate which is illegal and void as he has already paid entire principal amount (All the five instalments plus interest and penal interest). He had to deposit this under coercion and duress, reserving his right to recover the same. The complainant has argued that demand of additional amount has been made by the opposite party after lapse of about 18 years after deposit of last instalment, as such, there is deficiency in service on the part of the opposite party, because of which he has been subjected to mental and physical harassment and has become entitled to seek refund of additional amount alongwith compensation and cost as prayed for in the complaint.
5. On the other hand, learned counsel for the opposite party Sh. M.R Gupta Advocate has submitted that clause 15 of Agreement between the parties provides for adjudication of controversy, if any, by an Arbitrator, as such, this Forum has no jurisdiction to entertain and try the complaint, as parties need to be referred for settlement of the dispute by Arbitrator.
6. At this stage, complainant has submitted that opposite party has not filed any application for referring the dispute to Arbitrator for adjudication at appropriate stage, as such, the objection raised in this regard at this fag end trial is not maintainable.
7. No-doubt, clause No. 15 of Agreement provides for settlement of dispute and differences between the parties, if any, to arbitration, but section 8 of the Arbitration & Conciliation Act, 1996 provides that a judicial authority before which an action is brought in a matter which is subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. Sub section 2 of the said provision further provides that the application referred to in sub-section 1 shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.
8. In the case in hand, no such application has been filed by the opposite party before filing of written version. Since the opposite party has allowed the complainant to proceed without resorting to above said provision at appropriate stage, therefore, objection raised by him against maintainability of the complaint is not sustainable and parties cannot be referred to Arbitrator for adjudication of controversy through arbitration in terms of above said clause contained in the agreement relied upon by the opposite party at the stage of final arguments. The argument advanced by the learned counsel for the opposite party thus stands repelled.
9. Learned counsel for opposite party has further submitted that complainant has committed default in payment of instalments, as such, he is liable to pay interest @ 12% on the amount due alongwith penal interest @ 6% and he has deposited the amount demanded on that score without protest, as such, he is estopped by his own act and conduct from filing the instant complaint.
10. We do not find merit in the argument advanced by the learned counsel for the opposite party because as per documents brought on record by the parties, complainant has deposited entire amount of instalments due upto 10.8.90. Even he has paid a sum of Rs. 131/- and Rs.430/- on last two instalments on account of delay in payment thereof. The opposite party was under obligation to issue No Due Certificate after deposit of last instalment within reasonable time even if no formal application was filed by the complainant for the said purpose. He has raised a demand of Rs.21,417/- on account of penal interest vide its letter dated 28.8.2008 i.e. after a period of more than 18 years. There is no document to show that opposite party ever served any notice upon the complainant to deposit the amount due on account of penal interest for delay in deposit of any instalment before service of notice Ex.C.3 upon him to deposit a sum of Rs. 21,417/-. In case, complainant was liable to pay interest on account of delay in instalments, then the officials posted in the office of opposite party were not expected to remain silent for such a long time and to accept last two instalments without penal interest. The complainant has brought on record copy of calculation sheet Ex.C.9 prepared by the officials of the opposite party wherein details of amount due on account of penal interest have been given as Rs.21,739/-. The same document has been tendered in evidence by the opposite party as Ex.R.5 with no change therein. There are over writings in these documents at several places which have not been initialed and signed by the authority or official. As such, much reliance cannot be placed on these documents as their genuineness is not free from suspicion.
11. The opposite party has produced on record the letter Ex.R.7 written by the complainant in response to its letter dated 28.8.2008 Ex.R.6. In the said letter, complainant has categorically mentioned that if any error or omission is found at any later stage, then the same is subject to rectification and he is depositing the amount of Rs. 21,739/- under protest. Therefore, we are unable to accede to the plea of the opposite party and submission made by his counsel that complainant has deposited the amount due on account of penal interest with his free consent and reliance cannot be placed on affidavit of Sh. Gora Lal, Executive Officer of the opposite party to conclude that he had deposited the above said amount with his free consent.
12. In the light of our above discussion, we have come to the conclusion that there is deficiency in service on the part of the opposite party so far as delay in issuance of No Due Certificate and raising of demand of Rs. 21,739/- from the complainant is concerned. Therefore, we also find merit in the plea of the complainant that he has been subjected to mental and physical harassment due to delay in issuance of No Due Certificate on the part of officials of the opposite party and raising of demand against penal interest after expiry of considerable time after he deposited last instalment. The complainant is entitled to the refund of the amount deposited by him alongwith interest @ 9% P.A from the date of deposit till date of actual payment. However, it is well settled law that interest and compensation cannot be simultaneously awarded in the complaint filed before the Consumer Fora. As we are inclined to award interest, therefore, complainant is not entitled to payment of any amount on account of compensation as claimed by him in the complaint. However, he is liable to be adequately compensated for the expenditure incurred by him for filing of the instant complaint.
13. For the aforesaid reasons, we accept the complaint and direct the opposite party to refund to the complainant the amount of Rs. 21,739/- deposited by him alongwith interest @ 9% P.A from the date of deposit i.e. 29.8.2008 till the date of actual payment and to pay him a sum of Rs. 1,000/- on account of costs of filing the instant complaint within a period of two months from the date of receipt of copy of this order.
14. The copies of this order be sent to the parties free of costs as per rules on the subject.