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CASE NO.: Appeal (civil)  5884 of 2002

PETITIONER: Haryana Urban Development Authority

RESPONDENT: Smt. Dropadi Devi

DATE OF JUDGMENT: 24/09/2004

BENCH: S.N. VARIAVA & A.K. MATHUR

JUDGMENT: J U D G M E N T

S. N. VARIAVA, J.

       Before this Court a large number of Appeals have been filed by  the Haryana Urban Development Authority and/or the Ghaziabad  Development Authority challenging Orders of the National Consumer  Disputes Redressal Commission, granting to Complainants, interest at  the rate of 18% per annum irrespective of the fact of each case.  This  Court has, in the case of Ghaziabad Development Authority vs. Balbir  Singh reported in (2004) 5 SCC 65, deprecated this practice.  This  Court has held that interest at the rate of 18% cannot be granted in all  cases irrespective of the facts of the case.  This Court has held that the  Consumer Forums could grant damages/compensation for mental  agony/harassment where it finds misfeasance in public office.  This  Court has held that such compensation is a recompense for the loss or  injury and it necessarily has to be based on a finding of loss or injury  and must co-relate with the amount of loss or injury.  This Court has  held that the Forum or the Commission thus had to determine that  there was deficiency in service and/or misfeasance in public office and  that it has resulted in loss or injury.  This Court has also laid down  certain other guidelines which the Forum or the Commission has to  follow in future cases.

       This Court is now taking up the cases before it for disposal as per  principles set out in earlier judgment.  On taking the cases we find that  the copies of the Claim/Petitions made by the Respondent/Complainant  and the evidence, if any, led before the District Forum are not in the  paper book. This Court has before it the Order of the District Forum.   The facts are thus taken from that Order.   

In this case, the Respondent was allotted a plot bearing No.  11/14(P) Sector, Hisar on 21.8.1986.  The Respondent paid substantial  amounts but the possession was not delivered.  The Respondent filed a  complaint.  On these facts, the District Forum awarded interest @ 15%  p.a. on the entire deposited amount from the date of re-allotment till  offer of possession.  

The State Forum dismissed the Appeal and confirmed the Order of  the District Forum.  The Appellants went in Revision before the National  Commission.  The National Commission dismissed the Revision filed by  the Appellants relying upon its own decision in the case of Haryana  Urban Development Authority v. Darsh Kumar and observing that  interest @ 18% p.a. has been allowed by them under similar  circumstances.  As has been stated in so many matters, the Order of  the National Commission cannot be sustained.  It cannot dispose of the  matters by confirming award of interest in all matters irrespective of the  facts of that case.  It must, on facts of a case, award  compensation/damage under appropriate heads if it comes to the

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conclusion that such award is justified/necessary. Accordingly the Order  of the National Commission is set aside.

       We are informed that the Appellants have offered possession on  11th March 1998.  Possession has been taken on 26th March 1998

We are informed that the Respondent has paid a sum of  Rs.1,05,913/-.    We however find from the copy of the allotment letter,  filed in this Court along with the affidavit of the Estate Officer dated 29th  July 2004, that only a sum of Rs.78,720/- was payable.  As per the  affidavit interest payable to the Respondent, as per the Orders  mentioned hereinabove, is supposed to have been adjusted against  alleged outstanding dues and only a sum of Rs.11,602/- has been paid  to the Respondent on 27th May 2004.          Counsel had no instructions and could not explain what were the  amounts due from the Respondent.  As stated above Respondent has  paid more than what he was bound to pay.  Also neither before the  District Forum or the State Forum or the National Commission and even  in the Appeal Memo before this Court is there a claim that Appellants  have to recover amounts from the Respondent.   When the dispute has  been subjudice the Appellants are bound to put before the Court/Forum  not just their defence but also their claim/counterclaim, if any.  Without  permission of Court the Appellants cannot set at naught awards of the  Forum by raising, outside Court, demands against the Respondents.   It  must be remembered that it is the Appellants who had failed to deliver  possession within a reasonable period.  They do not offer possession till  11th March 1998.    As they were not in a position to deliver possession  they cannot expect parties like the Respondent i.e. allotees to keep on  paying installments to them. In such cases i.e. where Appellants are not  in position to deliver possession they cannot charge interest on delayed  payments till after they offer possession.  Clause 6 of the letter of  allotment also so provides.  It reads as follows: "6.     The balance amount i.e. Rs.59,040/- of the above  tentative price of the plot/building can be paid in lump sum  without interest within 60 days from the date of issue of the  allotment letter or in six equal instalments.  The first  instalment will fall due after the expiry of one year of the  date of issue of this letter.   Each instalment would be  recoverable together with interest on the balance price at  10% interest on the remaining amount.  The interest shall,  however accrue from the date of offer of possession."    

Thus, interest could only have been charged from date of offer of  possession.  

       As we are unable to understand and Counsel has no instructions  to be able to explain why extra payment has been collected and what  adjustments are purported to have been made, we direct that  Appellants shall now recalculate in the manner set out hereunder.  In  this case, Appellants must pay interest at 15% from date of each  deposit till date of payment.  They will not charge interest on delayed  payments prior to 11th March 1998.  If by that date the original price of  Rs.78,720/- had been paid they will not be entitled to and will not  charge any interest.  If anything extra is recovered they will repay that  back to the Respondent with interest thereon at 15% from the date of  such wrongful recovery/deduction till payment.  We, however, clarify  that if Appellants have a claim and feel that they have to recover  amounts from Respondent, they are at liberty to approach this Court for  clarification/modification of the Order and if on that application they are  permitted to so recover they may.  But in the absence of any such  permission, they shall not recover anything extra/over and above the  allotment price of Rs.78,720/-.

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       Further, if TDS amount is deducted they will now pay that over to  the Respondent with interest thereon at the rate of 15% from date it  was so deposited till payment.  Such recalculation to be made within 15  days from today and the amounts found due and payable to the  Respondent to be paid to him within 15 days thereafter.  A compliance  report to be filed in this Court within one month from date.  A copy of  the recalculation to be annexed to the compliance report.    

We clarify that this Order shall not be taken as a precedent in any  other matter as the order is being passed taking into account special  features of the case.   The Forum/Commission will follow the principles  laid down by this Court in the case of Ghaziabad Development Authority  vs. Balbir Singh (supra) in future cases.          

With these observations, the Appeal stands disposed of with no  order as to costs.