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CASE NO.: Appeal (civil)  5877 of 2002

PETITIONER: Haryana Urban Development Authority

RESPONDENT: Saurabh Aggarwal

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.  4/13(P) Sector, Hisar on 4th April 1986.  The Respondent paid  substantial amounts but the possession was not delivered.  Thus the  Respondent filed a complaint.   On these facts, the District Forum  

awarded interest @ 18% p.a. on the deposited amount.  

The State Forum confirmed the Order of the District Forum but  reduced interest from 18% to 15%.   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

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compensation/damage under appropriate heads if it comes to 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  22nd July 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.1,68,338.25.  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 a sum of Rs.1,68,186.50 was payable.  In the affidavit  the following statement is made: "The interest on the amounts deposited by the  respondent has been adjusted on 25.5.1998 for an amount  of Rs.2,49,829.65 at the interest rate of 15% p.a."          Counsel had no instructions and could not explain what were the  amounts due from the Respondent which are supposed to have been  adjusted.  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 22nd July 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 6 of the letter of allotment also so  provides.  It reads as follows: "6.     The balance amount i.e. Rs.1,26,139/50 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/or 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 22nd July 1997.  If by that date the original price of  Rs.1,68,186.50 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

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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.1,68,186.50.  

       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.