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CASE NO.: Appeal (civil)  5882 of 2002

PETITIONER: Haryana Urban Development Authority

RESPONDENT: Mrs. Raj Mehta

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.  181/P.L.A. Sector, Hisar on 9th October 1989.  The Respondent paid  substantial amounts but the possession was not delivered.   The  Respondent thus filed a complaint.   On these facts, the District Forum  awarded interest @ 18% p.a. on the amounts deposited from the date  of deposit till actual possession is delivered.  

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 awarding interest @ 18% in all matters irrespective of the  facts of that case.  The Order of the National Commission is hereby set  aside.

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In this case possession has been offered on 12th May 1997.   Respondent has not taken possession as the Appellants have not  complied with the Orders for payment of interest in spite of there being  no Orders of stay i.e. their favour.   The Appellants have purported to  deduct a sum of Rs.1,99,453/- against alleged dues of the Respondent.   Respondent has paid a sum of Rs.1,63,391/-.

We find in a number of matters that Appellants unilaterally seek  to set off amounts directed to be paid by them against amounts claimed  to be due to them.  It therefore needs to be clarified that when a matter  is sub-judice, then the Appellants have to place before the Court, all  their defences/claims.  If amounts are allegedly due and payable to  them they must so state before the adjudicating body.  Then the  veracity o their claim can be tested.  If before the District Forum or the  State Forum or the National Commission, no such claim is made, then  unilaterally they cannot raise a claim and seeking to adjust amounts  directed to be paid by them.  If this is allowed this would be a method  of defeating decrees/awards of Courts/Forums.  It would unnecessarily  lead to another litigation.

In this case, even in the Appeal Memo before this Court, it has  not been stated that amounts were recoverable from the Respondent.    Counsel had no instructions and could not explain how amounts were  allegedly due from the Respondent.   Admittedly the Respondent has  paid Rs.1,63,391/-.  As possession was not being offered till 12th May  1997 the Appellants are not entitled to charge interest even though  there may be delayed payments by the Respondent.  If Appellants are  at fault in not delivering possession they cannot expect  Respondent/allottees to go on paying instalments to them.  Also as  stated in so many matters Appellants cannot deduct TDS as these are  payments towards compensation/damages for mental agony and  harassment and escalation in costs of construction.    

Thus Appellants shall now within 15 days from date of this Order  recalculate in this following manner.  They shall pay interest at the rate  of 12% per annum from date of each deposit till 17th March, 2004 and  thereafter @ 15% per annum till payment.    They will not be entitled to  charge any interest on delayed payments, if any.  They will also not be  entitled to charge any escalation in price as delivery has to be given at  the agreed rate.  If TDS has been deducted they shall now pay that  over also to the Respondent with interest thereon at 12% per annum  from date it was deducted till payment.  After recalculating on these  basis they will forward to the Respondent the amounts found due and  payable to him within one month from date of this Order.  They must  also send a calculation sheet to the Respondent indicating how they  have recalculated.  Appellants to also file a compliance report in this  Court.  Along with the compliance report they must annex the  calculation sheet.

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.