Per Hon’ble Shri K.M.Lawande, Member.
1. The appellant Bhagyawati Sharma has filed this appeal against the judgment and order dated 16/06/2018 passed by the learned District Consumer Forum, Nagpur in consumer complaint No.247/2016. The appellant is the complainant in the original complaint and respondent is the opponent (for all opponents) in the said complaint. The parties herein after are referred to as complainant and opponent as per their original status in consumer complaint. The District Consumer Forum Nagpur is herein after referred to as District Consumer Forum for the sake of convenience.
2. The case of complainant in brief is that she has booked shop No.5-J at New Cotton Market layout constructed by opponent. The area of the shop is 11.511 sq.mtr. The opponent has sanctioned the allotment on 13/07/2004 and vide letter dated 12/08/2004 demanded Rs.1,15,200/- . The complainant paid Rs.1,16,899/- from time to time in between 07/06/2004 to 20/11/2006. After receiving of the possession of the shop the complainant also paid ground rent to the O.P. till the year 2007. The opponent is not executing the lease deed in favour of the complainant, therefore the complainant has not paid further ground rent to opponent . The Complainant had requested the opponent to execute lease deed and informed that she is ready to pay ground rent but without any interest thereon. The complainant requested the local MLA to interfere in the matter for the execution of the lease deed execution by opponent. However, the opponent replied to MLA that the land allotted to the complainant is coming in reservation for parking. As the opponent has not executed lease deed, the complainant could not get loan from any bank and she could not start the business. She has invested her hard money for the purchase of said shop in the scheme of opponent in the year 2004. However the opponent is not executing the lease deed ,therefore there is deficiency on the part of opponent and therefore she has approached District Consumer Forum Nagpur to give directions to opponent to execute the lease deed by accepting the arrears of lease rent from her without any interest and if the opponent is not in a position to execute lease deed, the opponent be directed to pay of the amount of Rs.15,00,000/- considering the existing market price of the shop. Further prayer is made for the directions to the opponent to to pay Rs.1,00,000/- towards mental and physical agony and Rs.5000/- towards the cost of litigation.
3. The opponent filed written version before the District Consumer Commission Nagpur and denied the adverse allegations. However ,the opponent has admitted allotment of shop No.5 near bus stand layout on 05/07/2005 and also admitted that the possession of the plot is given to complainant on 08/07/2005. It is also admitted payment/deposition of Rs.1,15,200/- to opponent by complainant. It is admitted that opponent has not executed lease deed in favor of the complainant till this date. The opponent contended that there is clause No.5(A) in the allotment letter dated 05/07/2005 stating cancellation of allotment of shop in case there is failure in payment of ground rent by the allottee. It is contended that the complainant has failed to comply with the terms and conditions of the allotment of letter and not paid ground rent from year 2007 onwards and therefore liable for cancellation of allotment of the shop. It is also submitted that the land of 4.98 acres situated near S.T.Bus Stand in the layout of New Cotton Market was earlier handed over to Nagpur Municipal Corporation for the purpose of market. However, the Nagput Municipal Corporation without their prior permission had given land to Krishi Uttpanna Bazar Samitee. Therefore ,the board of opponent in their meeting dated 07/02/1996 resolved to get the said land back /returned from Nagpur Municipal Corporation and accordingly land is taken back and on the said land 158 shops were further constructed and allotted including complainant. It is submitted by opponent that the shop of the complainant is affected by reservation as per development plan of Nagpur City and the land is now reserved for parking and market reservation. It was therefore resolved by the opponent to handover the three acres land of Krishi Uttpanna Bazar Samitee and opponent has also submitted proposal to Government. The Government of Maharashtra has also resolved to handover this land to Krishi utpanna Bazar samitee. The opponent requested to dismiss the complaint.
4) The District Consumer Forum Nagpur allowed the complaint partly and directed the opponent to refund the amount of Rs.1,16,899/- with rate of interest of 16% p.a. from the date of filing of the complaint till payment along with direction to pay Rs.10,000/- towards mental and physical agony and Rs.5000/- towards cost of litigation.
5) Being aggrieved by judgment and order of the District Consumer Commission the complainant has filed this appeal on the main grounds that District Consumer Forum has erred in deciding the entitlement of the date from which interest is to be paid. Complainant has paid the amount in the year 2004 to 2005 which is not appreciated by the District Consumer Forum Nagpur. The District Consumer Forum Nagpur erred in not appreciating the fact that the cost of the shop is not less than Rs.15,00,000/- as per existing market value. However, the District Consumer Forum Nagpur directed to refund the amount of Rs.1,16,899/- only. The complainant has invested the huge amount in the year 2005 and she is not able to carry business at the spot as the opponent failed to execute the lease deed in her favour. The District Consumer Commission has not appreciated this fact in assessing the compensation.The district Forum also awarded less compensation towards mental and physical agony and cost of litigation.
6) The ld. Advocate Mr.Sawal argued for the complainant in the line of consumer complaint filed by the complainant and further argued that, District Consumer Forum has erred in deciding the entitlement of the date from which interest is to be paid. It is not appreciated by the District Consumer Forum Nagpur that the complainant has paid the amount in the year 2004 to 2005. The District Consumer Forum Nagpur erred in not appreciating the fact that the cost of the shop is not less than Rs.15,00,000/- as per existing market value and the District Forum directed to refund only the amount of Rs.1,16,899/- which is paid by the complainant in past. The District Consumer Commission has not appreciated the fact that the complainant has invested the huge amount in the year 2005 and she is not able to carry business at the spot for want of lease deed in her favor while assessing the compensation. The district Forum also failed to award appropriate amount towards compensation for mental and physical agony and cost of litigation.
7) The ld. Advocate Mrs. Dabhalkar argued for the opponent that the complainant is given possession in the year 2005 only and she has paid Rs.1,16,899/- only. She has paid ground rent up to the year 2007 only and failed to pay for the further period. The land has now come under the reservation plan for marketing committee. The Government of Maharashtra had also resolved resolution dated 07/08/2014 to handover this land to Krishi Uttpanna Bazar Samitee. Therefore, it is not possible for the opponent to execute the lease deed. The ld Advocate further submitted that there are similar cases of other persons where in possessions given and no execution of lease deed . It is contended that the District Consumer Commission Nagpur has rightly decided the complaint and therefore the appeal deserves to be dismissed.
8) Admittedly, the complainant is allotted the shop No.5 in the layout in the Commercial Complex at New Cotton Market area ,Nagpur city by the opponent in the year 2004 and she is directed to pay 50% of the cost i.e. Rs.57,600/- vide letter dated 12/08/2004. There is a document of delivery of possession to the complainant on 08/06/2005.Though, during the oral arguments complainant has denied the actual possession. However ,it can not be ignored that the complainant has pleaded in her complaint that she has already received possession and has paid land rent till 2007. It is the contention of the complainant that she has not paid land rend after year 2007 because the opponent is not executing lease deed in her favor. In our opinion, It is possible for the person to refuse or delay payment towards ground rent in the circumstances when the lease deed is not being executed by the opponent. It is contended by the complainant that she is not able to carry business at the site for want of lease deed and therefore she has approached the District Consumer Commission Nagpur for refund of cost of shop at the current price of market rate i.e. Rs.15,00,000/- if lease deed is not possible for the opponent to execute. The District Consumer Commission Nagpur has directed to refund the amount of Rs.1,16,899/- paid by the complainant with 16% p.a. interest from the date of filing of the complaint. It appears that the complainant is not happy with the award passed by the District Forum. In our opinion the District Consumer Commission Nagpur has rightly considered the fact that the opponent is not able to execute the lease deed and therefore complainant is entitled for refund of the amount she paid .However , the District Forum has directed to pay the interest of 16% p.a. from the date of filing of the complaint. It reveals that the complainant has paid the total amount of Rs.1,16,899/- during the period of 2004 to 2006 and major of the amount i.e. of Rs.1,15,200/- is paid by 05/10/2004.Therefore, in our opinion complainant is entitled to receive the interest from the date of 05/10/2004. The complainant has also prayed for the interest on the amount of compensation and cost. However, in our opinion, there requires no interference in the order of District Consumer Forum Nagpur on that account.
9) In view of the aforesaid discussions, there requires interference in the order of District Forum for the date to be considered for interest to be paid from. Therefore, the appeal deserves to be partly allowed. In the circumstances, we pass the following order.
// ORDER //
- Appeal No.A/18/418 is partly allowed.
- The clause No.4 of the impugned judgment of District Consumer Forum Nagpur in Consumer Complaint No.C.C./247/16 is modified as below.
“Clause No.4 - The O.P. is directed to refund the amount of Rs.1,16,899/- with interest @ Rs.16% p.a. from the date of 05/10/2004.”
iii) There is no intervention in the rest of the clauses of the
impugned judgment and order .
iv) No order as to cost.
iiv) The copy of order be furnished to both parties free of cost.
