State Consumer Disputes Redressal Commission
Sh. Charu Kholia vs Kumaon Mandal Vikas Nigam And Another on 7 June, 2006
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARANCHAL - 8 - STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARANCHAL DEHRA DUN FIRST APPEAL NO. 125 / 2005 Sh. Charu Kholia ......Appellant / Complainant Versus Kumaon Mandal Vikas Nigam and another .....Respondents FIRST APPEAL NO. 261 / 2005 Kumaon Mandal Vikas Nigam and another ......Appellants Versus Sh. Charu Kholia .....Respondent Sh. J.K. Jain, Learned Counsel for the Complainant Sh. J.P. Kansal, Learned Counsel for Kumaon Mandal Vikas Nigam Coram: Hon'ble Justice Irshad Hussain, President Ms. Luxmi Singh, Member Dated: 07.06.2006 ORDER
(Per:
Mr. Justice Irshad Hussain, President):
Both these appeals bearing Nos. 125 / 2005 and 261 / 2005 have arisen out of order dated 03.05.2005 passed by the District Forum, Nainital.
2. Background facts briefly stated are that Kumaon Mandal Vikas Nigam floated a scheme known as Multipurpose Tourist Complex in which shops and commercial floor were proposed at Kaladungi Road Crossing, Nainital Road, Haldwani and a brochure of the scheme was published (Annexure - I of the record of the District Forum). It contained terms and conditions for the prospective allottees and those were to be ultimately given the possession of the shops on lease / rent against the premium for different categories as stipulated in charts at page 4 of the brochure. The complainant Sh. Charu Kholia registered himself as a prospective allottee / lessee of one category three shop by depositing required sum of Rs. 50,000/- on 14.07.2003. The shop of this category carried premium of Rs. 9,00,000/- and after the completion and delivery of the possession of the shop, the rent @ Rs. 700/- per month was payable for it. The mode of payment of the premium was also described in the brochure and one of its term stipulated that in case the allottee after the registration deposits the entire premium as advance, 5% rebate shall be paid to such allottee.
3. Complainant besides the registration fee of Rs. 50,000/-, also deposited Rs. 1,35,000/- on 18.11.2003 and Rs. 7,15,000/- on 28.04.2004 (vide receipts, Annexure - II of the record of the District Forum). This way, total sum of Rs. 9,00,000/- was deposited by the complainant by 28.04.2004. Complaint was filed on 17.12.2004 with the allegations that despite repeated demands and notice amount of 5% rebate of the advance premium has not been paid to him; that ultimately after several requests, a cheque of Rs. 22,250/- only was given by the opposite party No. 2 [Assistant Engineer (Nirman), Kumaon Mandal Vikas Nigam] with the letter dated 06.11.2004 mentioning that the 5% discount benefit had been allowed on the amount of Rs. 4,45,000/-; that non-payment of discount benefit on the entire amount of Rs. 9,00,000/- amount to deficiency in service; that despite huge investment of money complainant has not been able to establish his shop to earn livelihood for himself and his family and that the opposite parties are, therefore, liable to pay compensation also for deficiency in service. The complainant prayed for the following reliefs:
That in the light of the above submission, the opposite parties be directed to pay the balance / rest amount of cash discount benefit in tune of Rs. 23,250/-.
That the opposite parties be directed to pay 18% interest on Rs. 9,00,000/- from the date of registration of the shop i.e. 14.07.2003 till the handing over of the actual possession of the shop to the complainant.
That to award the compensation in tune of Rs. 15,000/- on account of mental agony and pain suffered by the complainant along with the cost of the present complaint of Rs. 5,000/- be awarded.
Any other relief which may be deem fit also be awarded to the complainant.
4. The opposite party Nos. 1 & 2, Kumaon Mandal Vikas Nigam and Assistant Engineer (Nirman) Kumaon Mandal Vikas Nigam contested the case and pleaded that the dispute raised is not a consumer dispute; that the complainant deposited one installment of Rs. 1,35,000/- on 18.11.2003 after four months of the registration / allotment of the shop while it ought to have been deposited latest by 14.08.2003; that the complainant had not deposited the second and third installment on the due dates and a sum of Rs. 7,15,000/- had been deposited on 28.04.2004 towards full and final payment of the premium; that although the complainant has not fulfilled the terms and conditions of the brochure, the discount of 5% of the premium of Rs. 4,45,000/- had been given to the complainant and he was not entitled for any rebate for the default of payment of two premium installments and that there was no deficiency on their part making them liable to pay any further amount or compensation to the complainant and also any interest on the deposited amount.
5. The District Forum on an appreciation of the material on record and after considering the respective submissions of the parties came to the conclusion that since the complainant had not deposited the first installment in time he was rightly given discount benefit of 5% on a sum of Rs. 4,45,000/- and was rightly paid Rs. 22,250/-. The District Forum, however, was of the view that it does not appear justifiable that despite receipt of due sum of Rs. 9,00,000/- by 28.04.2004, the opposite parties have not been able to deliver possession of the shop to the complainant and as such there being deficiency in service, they were liable to pay reasonable interest on the amount of Rs. 9,00,000/- to the complainant. The opposite parties were thus held liable to pay interest on the said amount of Rs. 9,00,000/- @6% p.a. w.e.f. 28.04.2004 till the date of the delivery of the possession of the shop to the complainant. The complaint was thus allowed to that extent and a sum of Rs. 1,500/- was also awarded to the complainant as expenses of the litigation. Claim for compensation was disallowed. Aggrieved by the impugned order, both the complainant and the opposite parties preferred these appeals.
6. We have heard the Learned Counsel for the parties and have carefully considered their submissions in the light of the facts of the case and the material on record. At the outset, it need to be stated that the controversy involved in the case is definitely a "consumer dispute" because the relationship of landlord and tenant between the parties shall commence on completion and delivery of the possession of the shop to the complainant and till such time, the complainant under the scheme in question fall in the category of "consumer" as defined under Section 2(1)(d) of the Consumer Protection Act, 1986 and who as such hired "service" for consideration in regard to housing construction as provided under Section 2(1)(o) of the Act. Therefore, the defence plea was rightly not accepted by the District Forum.
7. The schedule of the payment of the installments as given in the brochure indicate that the first installment of Rs. 1,35,000/- was to be deposited at the time of the allotment. In this case, the registration and allotment of a shop of a particular category had been simultaneous as is evident from the terms and conditions of the brochure and also from the receipts of deposit of the amounts wherein the number of the shop allocated or ear-marked or allotted to the complainant had been duly mentioned. Shop was registered / allotted on 14.07.2003 at the time of the registration itself and there could be no doubt that as urged on behalf of the Kumaon Mandal Vikas Nigam, the first installment of Rs. 1,35,000/- ought to have been deposited latest by 14.08.2003 as stipulated under the schedule. Complainant deposited the first installment of Rs. 1,35,000/- on 18.11.2003 after a delay of about three months and as such under the said terms and conditions, the complainant cannot legally insist that he was entitled to avail 5% discount rebate in view of the deposit of entire sum of Rs. 9,00,000/- by 28.04.2004. The complainant had been given discount benefit of Rs. 22,250/- against a sum of Rs. 4,45,000/- taking a liberal view by the Kumaon Mandal Vikas Nigam and in a situation like this the District Forum was justified in coming to the conclusion that there was no deficiency at all in that regard on the part of the said agency and the complainant was not entitled to 5% discount rebate against the entire sum of Rs. 9,00,000/-.
8. Learned Counsel for the complainant submitted that the complainant had paid full premium and thus had legitimate expectation that he will be given actual possession of the shop within the time schedule as stipulated in the brochure and since the complainant had not only been deprived of the use of large sum of Rs. 9,00,000/-, he has also not been able to establish himself suitably in life to earn livelihood for himself and his family and in these peculiar circumstances of the case, the interest @18% p.a. from the date of deposit of the amount till the delivery of the possession of the shop should have been awarded and that the District Forum fell in error in awarding interest @6% p.a. w.e.f. 28.04.2004 till the date of delivery of the possession. Learned Counsel also referred to one of the term and condition which stipulate that in the event of delay to the maximum period of three months in the payment of due installment of the premium, the allottee shall be liable to pay the due installment together with interest @18% p.a. and submitted that in the face of the rate of the interest stipulated as such, the agency should have been held liable to pay interest at the same rate i.e. 18% p.a. on the advance deposit of the premium. On the other hand, Learned Counsel for the agency the Kumaon Mandal Vikas Nigam claimed that mere deposit of the premium in advance would not make the complainant entitled to interest because the premium was payable within 24 months of the allotment in nine installments and possession of the allotted shop was to be given thereafter and also because as per the stipulation, the discount credit was already given to the complainant. In the view of the Learned Counsel the District Forum fell in error even in awarding interest @6% p.a. w.e.f. 28.04.2004 till the date of the delivery of the possession.
9. Having carefully considered the respective submission, there can be no doubt that the Kumaon Mandal Vikas Nigam failed to observe the time schedule of delivery of the possession of the shop in as much as after the expiry of 24 months from the due date of the payment of the first installment i.e. 14.08.2003, the shop had not been constructed and possession had not been delivered to the complainant. This way, Kumaon Mandal Vikas Nigam failed to fulfill the legitimate expectation of the complainant who got the required registration and allotment of a shop of a particular category and deposited the entire premium amount in order to establish himself in life to earn his livelihood. Merely because the discount rebate on the advance payment of the premium had been paid it would not mean that the Kumaon Mandal Vikas Nigam cannot be held liable to pay interest for not adhering to the time schedule as fixed as regards the delivery of the possession of a constructed shop to the complainant. Therefore, on equitable considerations the complainant was entitled to be paid reasonable interest on the deposited amount for delay in delivery of possession of the shop and the conclusion to that effect drawn by the District Forum was justified.
10. In regard to the rate of interest which may be appropriate and proper in the circumstances of the case, we may indicate that the stipulated term as referred above may not be a just criterion to fix the rate of interest. The reason being that the complainant had been given discount credit and therefore interest @18% p.a. would be inappropriate. The Learned Counsel for the complainant referred to the decisions including those of the National Commission in support of his argument that interest @18% on the deposit amount till the date of the handing over of the possession has been held to be justified. In the case of Ghaziabad Development Authority Vs. Krishna Kumarji; 2004 (2) CLT 299, the interest @18% p.a. for delayed delivery of possession was held just and proper by the National Commission. No doubt interest @18% p.a. had been held justified but the facts of the reported case were at variance in as much as in that case or in any other case cited at the bar, there was no provision of discount credit for deposit of installments of premium in advance and therefore, we do not think that interest @18% p.a. in the instant case can be held to just and proper. Keeping in view the attending circumstances and the quantum of the premium deposited by the complainant, we are of the view that interest @15% p.a. would be just and proper. The District Forum was not justified in awarding interest @6% p.a. only. In our view, the interest payable to the complainant need to be enhanced to 15% p.a. on the amount of Rs. 9,00,000/- and that too w.e.f. the date when the time schedule as given in the brochure stand expired i.e. 24 months from the latest date of payment of the first installment i.e. 14.08.2003. This way the 24 months stand expired on 14.08.2005 and the complainant is to be held entitled to interest @15% p.a. w.e.f. 15.08.2005 till the date of delivery of the actual possession of the shop. It need to be stated here that the complaint was filed on 17.12.2004 and when the appeals were pending grant of interest from the above date which fall after the date of filing of the complaint itself is equitable and legally justified.
11. The claim for compensation for harassment and mental agony is however not sustainable in view of the interest being awarded on the amount deposited by the complainant.
12. For the reasons aforesaid, Appeal No. 125 of 2005, Sh. Charu Kholia Vs. Kumaon Mandal Vikas Nigam and another filed by the complainant is partly allowed and the impugned order dated 03.05.2005 of the District Forum is modified to the extent that the complainant shall be entitled to interest @15% p.a. on a sum of Rs. 9,00,000/- w.e.f. 15.08.2005 till the date of the delivery of the possession of the shop. Appeal No. 261 of 2005, Kumaon Mandal Vikas Nigam and another Vs. Sh. Charu Kholia is dismissed. Costs of the appeals are made easy.
13. Let a copy of the judgment be kept on the record of Appeal No. 261 of 2005.
(MS.
LUXMI SINGH) (JUSTICE IRSHAD HUSSAIN)