24 September 2004
Supreme Court
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HARYANA URBAN DEVELOPMENT AUTHORITY Vs MANOJ KUMAR

Case number: C.A. No.-007553-007553 / 2002
Diary number: 12588 / 2002
Advocates: Vs BALBIR SINGH GUPTA


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CASE NO.: Appeal (civil)  7553 of 2002

PETITIONER: Haryana Urban Development Authority

RESPONDENT: Manoj Kumar & Anr.

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  Respondents/Complainants 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 Respondents were allotted a plot bearing No.  SSB-3, Old Court Area, Hisar.  The Respondents paid substantial  amounts but the possession was not delivered.  The Respondent,  therefore, filed a complaint.  On these facts, the District Forum  awarded interest @ 15% p.a. on the entire deposited amount from the  date of deposit till offer of possession.  

The State Forum directed allotment of an alternate plot at the  rate payable for the old plot.  It also directed that interest at 15% per  annum will be payable after 2 years of date of deposit.  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.  would be allowable after two years from the date of the respective  deposits of amounts by the Respondent.  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

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interest in all matters irrespective of the facts of that case.  The  National Commission must, if it is satisfied on facts of a particular  case, award compensation/damages under specific heads.  The Order  of the National Forum is accordingly set aside.   

We are informed that the Appellants have offered possession on  7th October 1997.  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.1,80,510.50.  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.1,76,000/- was payable.   As per the affidavit interest in a sum of Rs.1,74,900/- payable to the  Respondent, as per the Orders mentioned hereinabove, has been paid  to the Respondent on 16th October 1998.          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 7th October 1997.  As can be seen from the Order of the  District Forum possession was not being offered because development  work had not taken place.  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 5  of the letter of allotment also so provides.  It reads as follows:

"5.     The balance amount i.e. Rs.1,32,000/- of the above  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 ten half yearly 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% (ten percent) 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 7th October 1997.  If by that date the original price  of Rs.1,76,000/- had been paid they will not be entitled to and will not  charge any interest.  If anything extra is recovered they will repay that

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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  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.1,76,000/-.   

       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.