24 September 2004
Supreme Court
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H.U.D.A. Vs SHANTI DEVI

Case number: C.A. No.-005872-005872 / 2002
Diary number: 12096 / 2002
Advocates: Vs RR-EX-PARTE


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CASE NO.: Appeal (civil)  5872 of 2002

PETITIONER: Haryana Urban Development Authority

RESPONDENT: Shanti 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.  1489, Sector-14(P), Hisar. 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 @ 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

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the 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  24th February 1998.  Counsel had no instructions whether Respondent  had taken possession or not.  Undoubtedly the Respondent will be  entitled to take possession, if he has not already taken possession.   Appellants will deliver possession without demanding any further or  other amounts.

We are informed that the Respondent has paid a sum of  Rs.1,64,810/-.  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 200, that only a sum of Rs.1,23,700/- was payable.  As per  the affidavit a sum of Rs.89,126/- being interest payable to the  Respondent, as per the Orders mentioned hereinabove, has been paid  to the Respondent on 25th July 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 the Appellants were to  deliver possession within a reasonable time.   They do not offer  possession till 24th February 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.92,775/- 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 24th February 1998.  If by that date the original  price of Rs.1,23,700/- 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 till payment.  We, however, clarify  that if Appellants have a claim and feel that they have to recover such  amounts from Respondent, they are at liberty to approach this Court  for clarification/modification of the Order and if on that application

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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.1,23,700/-.   

       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.