ANSAL HOUSING & CONSTRUCTION LIMITED & 2 ORS vs BIRENDER SINGH YADAV

K. S. Chaudhari, Presiding Member

[1] This revision petition has been filed by the petitioners against the order dated 18.4.2013 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ''the State Commission'') in First Appeal No. 97 of 2013 Ansal Housing & Constructions Ltd. & Ors. Vs. Birender Singh Yadav; by which, while allowing appeal partly, order of District Forum allowing complaint was modified.

[2] Brief facts of the case are that complainant/respondent applied for one residential plot of 100 sq. yards in the residential project of Ansal Housing Construction Limited i.e. of the opposite parties/petitioner by sending a cheque of Rs. 2 lacs. It was on the printed proforma of the opposite parties mentioning terms and conditions inter alia that allotment of plot would be made within six months of registration of application, that the said amount was to be adjusted against the booking amount as and when offer of allotment was made. If the allotment of plot was made after six months, then simple interest @ 10% p.a. was to be paid for the period beyond six months of registration of application up to the date of offer of allotment, that in case opposite parties were not in a position to make offer of allotment within 12 months from the date of registration of application, then the complainant would have right to withdraw his money by giving 30 days notice with interest @ 10% p.a. from the date of payment; that the opposite parties shall allot plot @ Rs. 4800/- per sq. yard and the complainant would be entitled for discount @ Rs. 300/- per sq. yard meaning thereby that the allotment of the plot to the complainant was to be made @ Rs. 4500/- per sq. yard. The said cheque of Rs. 2 lac of the complainant was received and acknowledged by the opposite parties vide their receipt dated 03.03.2005. Thereafter, the opposite parties vide their registered letter dated 17.01.2006, demanded another sum of Rs. 2,05,000/- from the complainant, as part payment of advance registration and the complainant paid that amount to the opposite parties vide receipt dated 06.06.2006. Thereafter, the opposite parties vide their letter dated 04.10.2007 offered allotment of residential plot No. C-150 in Ansal Town Rewari, Haryana, by further demanding Rs. 1,15,689.15 from him, giving its payment plan schedule of the total allotment money. In this manner, allotment of the plot was made after about 25 months of the registration of application of the complainant dated 01.03.2005 despite the fact that promise was given to the complainant that the allotment was to be made within six months. The opposite parties gave their permission dated 13.10.2007 to mortgage said plot No. C-150 by him with Punjab National Bank, to raise loan to pay instalments of total amount of Rs. 11,99,335/-. On the basis of the aforesaid assurance of the opposite parties on 18.10.2007, the complainant got financed the instalments of that amount from Punjab National Bank and then the complainant paid all the due instalments demanded from him from time to time and paid total amount of Rs. 11,52,244/- with last instalment of Rs. 70,636/- dated 04.09.2008. Opposite party failed to give possession even after lapse of seven years. Alleging deficiency on the part of opposite party, complainant filed complaint before District Forum. Opposite party resisted complaint and submitted that they would provide the possession of the plot to the complainant within a short period after the completion of the amenities and government formalities; the complainant was not entitled for interest amount of Rs. 75,834/- with or without 21% interest as at his own will, he had accepted the offer or allotment, according to which he was not entitled to this amount. It was admitted that the complainant could have demanded simple interest @ 10% p.a. beyond the period of six months of registration of his application in case the complainant had declined to accept the offer of allotment or when the opposite parties were not in a position to provide him the residential plot. The complainant was bound to pay EEC charges. The opposite parties had denied providing said assurance to the bank for providing sale-deed by 31.03.2010. Thus, denying any kind of deficiency in service and unfair trade practice, the opposite parties prayed for dismissal of the complaint. Learned District Forum after hearing both the parties allowed complaint and directed opposite party to deliver possession of the plot or to pay 21% p.a. interest with quarterly rests on amount received and further directed to pay same rate of interest on Rs. 75,834/- from 5.10.2007 till payment and compensation of Rs. 2.00 lakhs with litigation cost of Rs. 1,100/-. Appeal filed by opposite party was partly allowed and 21% p.a. interest with quarterly rests was modified to 21% simple interest against which this revision petition alongwith application for condonation of delay has been filed.

[3] Heard Learned Counsel for the parties finally at admission stage and perused record.

[4] As there is delay of only 8 days in filing revision petition. Delay stands condoned for the reasons mentioned in the application.

[5] Learned Counsel for petitioner submitted that delay in delivery of possession was due to stay from High Court and there was no clause for interest on refund in the agreement and Learned District Forum committed error in allowing complaint with huge compensation and Learned State Commission further committed error in allowing appeal partly, hence, revision petition be allowed and impugned order be set aside and petitioner be directed to refund the amount without interest. On the other hand, Learned Counsel for respondent submitted that order passed by Learned State Commission is in accordance with law, hence, revision petition be dismissed.

[6] It is not in dispute that complainant applied for allotment of plot on 1.3.2005 and plot was allotted on 4.10.2007 whereas plot was to be allotted within a period of six months.

[7] Learned Counsel for petitioner submitted that on account of stay by Hon''ble Punjab & Haryana High Court, possession of plot could not be given. He has referred order of High Court in Civil Writ Petition No. 21692 of 2008- Babu Lal & Ors. Vs. State of Haryana & Ors., and Hon''ble Apex Court in SLP No. 12625/2009 filed by petitioner against order of High Court and it appears that on account of litigation pending before High Court and Supreme Court, plot could not be offered by petitioner to the complainant. Learned Counsel for respondent rightly pointed out that this plea was not taken by opposite party in the written statement filed before District Forum or State Commission. No doubt, opposite party should have taken this plea at the earliest but that fact cannot be denied that litigation was pending before Hon''ble High Court and Hon''ble Supreme Court, so possession of plot could not be given by opposite party to the complainant and in such circumstances, grant of interest @ 21% p.a. was not justified. Learned Counsel for respondent submitted that as opposite party was charging 21% interest on delayed payment, Learned State Commission rightly allowed 21% p.a. interest. Admittedly, there is no clause for grant of interest on refund of amount but as plot was not allotted for a long period and possession was not given to the complainant in spite of lapse of seven years, complainant is entitled to get interest on deposited amount but certainly not to the extent of 21% p.a. as opposite party was not solely responsible for delayed possession as possession could not be delivered due to pending litigation. In such circumstances, it would be appropriate to allow interest @ 12% p.a. on deposited amount from the date of deposit till payment.

[8] Learned District Forum allowed interest @ 10% p.a. on amount deposited towards allotment and has further allowed 21% p.a. interest on the aforesaid interest amount which is, apparently, not proper.

[9] Learned District Forum, further, allowed compensation of Rs. 2.00 lakhs on account of harassment. No doubt, complainant could not get possession of plot even after lapse of 10 years and complainant is certainly entitled to compensation but this amount should be reduced as complainant has already been allowed to get interest @ 12% p.a. In such circumstances, compensation of Rs. 2.00 lakhs is reduced to Rs. 1.00 lakh.

[10] Consequently, revision petition filed by petitioner is partly allowed and order dated 18.4.2013 passed by Learned State Commission in First Appeal No. 97 of 2013 Ansal Housing & Constructions Ltd. & Ors. Vs. Birender Singh Yadav; and order of District Forum dated 26.11.2012 passed in Consumer Complaint No. 261 of 2010- Birender Singh Yadav Vs. Ansal Housing & Construction Ltd. & Ors. is partly modified and opposite party is directed to refund amount with 12% p.a. interest from the date of deposit till payment and further directed to pay compensation of Rs. 1.00 lakh and litigation cost of Rs. 1,100/- as allowed by District Forum.

[11] Parties to bear their own costs.