State Consumer Disputes Redressal Commission
The Greater Mohali Area Authority vs Jones Masih, on 29 April, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SCO NO.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.354 of 2010.
Date of Institution: 08.03.2010.
Date of Decision: 29.04.2011.
The Greater Mohali Area Authority, PUDA Bhawan, Sector-62, SAS Nagar,
Mohali, through its Chief Administrator.
.....Appellant.
Versus
Jones Masih, 1035, Sector-69, Mohali.
...Respondent.
First Appeal against the order dated
14.01.2010 of the District Consumer
Disputes Redressal Forum, S.A.S. Nagar
(Mohali).
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellant : Sh. Balwinder Singh, Advocate.
For the respondent : Sh. Jones Masih Bhatti, in person.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
The Greater Mohali Area Authority, appellant (In short "the appellant") has filed this appeal against the order dated 14.01.2010 passed by the learned District Consumer Disputes Redressal Forum, S.A.S. Nagar (Mohali) (in short "the District Forum").
2. Facts in brief are that Sh. Jones Masih, respondent/complainant (in short, "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant, pleading that the Punjab Urban Planning and Development Authority (now Greater Mohali Area Development Authority, in short "GMADA") vide allotment letter no.15944 dated 29.09.1995, allotted a plot measuring 400 sq.yds. bearing no.1035 in Sector-69 to the respondent and its physical possession was given to him after about four years of the allotment i.e. on 20.04.1999. PUDA after obtaining four annual installments of the plot @ Rs.70,000/- along with 10% interest, issued the said First Appeal No. 354 of 2010 2 allotment letter and the physical possession was to be handed over immediately, but that was not done.
3. The respondent filed complaint no.158 on 20.09.2000 before the District Forum, Ropar, which was decided on 27.12.2000 and the appeal against that order was also dismissed by this Commission on 05.09.2006. The PUDA (now GMADA) filed a review petition in the Hon'ble National Commission, just to harass him which is pending.
4. The subject matter of the present complaint is imposition of penal interest on the late payment of 5th and 6th annual installments of the plot whose principle and normal @ 10% p.a. has already been paid by him. The GMADA after about seven and a half years issued the demand notice of the penal interest. There is no provision in the terms and conditions of the allotment letter for imposition of penal interest on the late payment of annual installments.
5. The reason for late payment of two installments was that GMADA did not give any response to his application for granting conditional permission to mortgage the plot on 2nd charge to ICICI Bank, to avail of Rs.4.00 lacs @ 7- 1/2% interest as home loan for payment of outstanding installments and for construction of his house. He had to borrow Rs.1,61,200/- from private sources and paid under protest, to Estate Officer, GMADA, Mohali vide its receipt No.3167 dated 20.05.2009 for execution of the conveyance deed but on the last date, the date of execution of the conveyance deed was extended. It was prayed that the appellant be directed to refund the amount of the impugned demand notice for Rs.1,61,200/- of penal interest along with interest @ 18% till the actual payment and to pay compensation for harassment.
6. In the reply filed on behalf of the appellant, the preliminary objections were taken that there is no deficiency in service on the part of the appellant and the interest was charged for the late deposit of 5th and 6th installments of the price of the plot and the complaint is not maintainable. There is no cause of action and the Forum has no jurisdiction. On merits, filing of the First Appeal No. 354 of 2010 3 previous cases and the decisions given was admitted. It was also admitted that the respondent was allotted plot no.1035 in Sector-69 vide allotment letter no.15944 dated 29.09.1995 and the physical possession was delivered on 20.04.1999. It was also admitted that the appellant has received four annual installments along with interest @ 10% p.a. as per terms and conditions of the allotment letter. The respondent has not deposited 5th and 6th installment amounting to Rs.84,000/- and Rs.77,000/- respectively as per the schedule of the installments given in the allotment letter. The 5th and 6th installments were deposited by the respondent on 18.02.2009 and 02.04.2008 after a delay of 2698 days and 2377 days respectively. The penal interest was charged as per the rules and instructions for the late deposit of the installments. The respondent after having accepted the allotment of the plot, is under obligation to deposit the installments as per the terms of the allotment, but he has not done so. Clause-16 of the allotment letter specifically provides that no separate notice for payment of installments, is required. Similar pleas were repeated and denying all the allegations contained in the complaint, it was prayed that the complaint may be dismissed with costs.
7. Parties led evidence in support of their respective contentions by way of affidavits and documents.
8. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the penalty of Rs.1,61,200/- has been demanded without following the due procedure of law as laid down in Section-45(1) and 45(2) of the 1995 Act and quashed the demand of the same demanded vide letter Ex.C3 and also awarded compensation to the tune of Rs.5,000/- for deficiency in service and litigation expenses to the tune of Rs.2000/-. The appellant was given liberty to pass a fresh order regarding imposition of penalty by giving show cause notice and reasonable opportunity of hearing to the respondent as required U/s 45 (1) and 45(2) of the Punjab Regional & Town Planning & First Appeal No. 354 of 2010 4 Development Act, 1995 ( in short, " the 1995 Act"), within two months from the receipt of certified copy of the order and if no fresh order is passed, then the appellant shall refund the said amount along with interest @ 9% p.a. from the date of deposit till payment.
9. Aggrieved by the impugned order dated 14.01.2010, the appellant has come up in appeal.
10. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellant as well as by Sh. Jones Masih Bhatti, respondent, in person.
11. Learned counsel for the appellant contended that admittedly, 5th and 6th installments of the price of the plot were not paid by the respondent as per the terms and conditions of the allotment letter Ex.C7 and accordingly, penalty was imposed on the delayed payment of installments. As per allotment letter Ex.C7, 5th installment of Rs.84,000/- was due on 29.09.2000 and the 6th installment of Rs.77,000/- was due on 29.09.2001, but the same were not paid in time and the penalty has been rightly demanded and the order passed by the District Forum is illegal and incorrect.
12. The respondent contended that the allotment of the plot in question was made in the year 1995, whereas the possession was delivered in the year 1999 and the appellant cannot demand any penal interest as there is no penal clause. The respondent applied for home loan, but the same was not given and unnecessary harassment was caused and the District Forum has passed the order which is legal and the appeal may be dismissed.
13. We have considered the submissions made by the learned counsel for the appellant as well as by the respondent.
14. We have also perused the document Ex.C7 which is allotment letter and as per Clause-2, the tentative price of the plot was fixed as Rs.5,60,000/- calculated @ Rs.1400/- per sq.yds. and the respondent was First Appeal No. 354 of 2010 5 liable to pay any variation in the price after the actual measurement of the site as well as in case of enhancement of compensation by the courts or otherwise and the said additional price was to be paid within 30 days of the demand and in case of default, the respondent was liable to pay interest @ 18% p.a. in addition to any other action which the authority may take.
15. Except the above clause, there is no other condition, authorizing the appellant to impose penal interest. Thus, from the above terms and conditions of the allotment letter, the appellant can charge only interest @ 18% p.a. on the late payment of the installments. As per the allotment letter, 5th installment was to be paid on 29.09.2000 and the 6th installment was to be paid on 29.09.2001. As per memo no.GMADA/Milakh Officer/2010/10690 dated 19.03.2010, the 5th installment of Rs.84,000/- was deposited on 18.02.2008 and the 6th installment of Rs.77,000/- was deposited on 02.04.2008. The appellant imposed the penalty of the said amount, adding Rs.200/- to it, making the total penalty to the tune of Rs.1,61,200/- which was deposited by the respondent vide receipt no.3167 dated 20.05.2007.
16. Thus, as per the terms and conditions of the allotment, the appellant was entitled to recover interest @ 18% p.a. in case of default and in this case, the default was committed on 29.09.2000 when the amount of Rs.84,000/- was not paid and then the default was committed don 29.09.2001 when Rs.77,000/- were not paid and on these amounts, the appellant is entitled to recover interest @ 18% p.a. from 29.09.2000 and 29.09.2001 till the date when the amount was paid. On the amount of Rs.84,000/-, the appellant is entitled to recover interest @ 18% p.a. from 29.09.2000 to 18.02.2008 (date of payment) and on Rs.77,000/- from 29.09.2001 to 02.04.2008 (date of payment). The terms and conditions of the allotment letter Ex.C7 were clear and the respondent has been paying the installments and admittedly, paid four installments. No additional demand or any other demand could be made against the terms and conditions of the agreement. The appellant has failed to First Appeal No. 354 of 2010 6 bring on record or produce any term or condition vide which, any penalty could be imposed, except the charging of interest as detailed above. Strangely enough, the appellant imposed the penalty equivalent to the installments which were delayed, but under what rules or regulation and on what basis, penalty equivalent to the delayed payment or the installments could be made, is not on record. The appellant is a statutory body and the officials of the appellant work as per the rules and procedure and they have no right to impose any penalty as per their own whims and wishes. There is no stipulation as to how much penalty is to be imposed if the installment is delayed by 10 days, 100 days, 1000 days etc. etc. The amount demanded as penalty to the tune of Rs.1,61,200/- is without any basis and the appellant or its officials have no right to impose this penalty without there being any term and condition in the letter of allotment. Therefore, the demand of penalty to the tune of Rs.1,61,200/- is illegal, null and void and the respondent is not liable to pay the same. But the same has been deposited by the respondent under protest. However, the appellant is entitled to charge interest @ 18% p.a. on the delayed payments.
17. In view of above discussion, the appeal is partly accepted and the impugned dated 14.01.2010 under appeal is modified to the extent that the appellant is entitled to charge interest @ 18% p.a. on the amount of Rs.84,000/- from 29.09.2000 to 18.02.2008 (date of payment) and on Rs.77,000/- from 29.09.2001 till 02.04.2008 (date of payment). Therefore, after charging interest on the above amounts, remaining amount out of Rs.1,61,200/- deposited by the respondent be refunded to him within two months from the receipt of copy of the order failing which, the respondent shall be entitled to recover interest @ 12% from the date of deposit till realization.
18. The appellant had deposited an amount of Rs.3500/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a First Appeal No. 354 of 2010 7 crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum.
19. The arguments in this appeal were heard on 25.04.2011 and the order was reserved. Now the order be communicated to the parties.
20. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member April 29, 2011.
(Gurmeet Singh)