AVAS AYUKT, UTTAR PRADESH AVAS EVAM VIKAS PARISHAD vs Mukesh Kumar

THIS is an appeal against the judgment and order dated 3.6.1993 passed by District Consumer Forum, Ghaziabad in Complaint Case No. 523/1992.

THE facts of the case stated in brief are that the complainant applied for a plot in the year 1985 after depositing a sum of Rs. 1,000/-. By letter dated 18.1.1991 the appellant, Avas Evam Vikas Parishad, allotted plot No. 13/313 measuring 58.86 sq. mts. to the complainant. It was indicated that as soon as the entire payment of the plot is made, the possession of the same will be given to the complainant. THE complainant deposited the entire amount of Rs. 82,360/- by 30.8.1991. THE complainant wanted to construct a house over this plot after availing a loan of Rs. 1,50,000/- from the Bank which has been sanctioned to him. Inspite of the fact that the amount has been deposited, the possession has not been delivered by Avas Vikas Parishad. THE complainant has prayed for possession of the plot along with interest at the rate of 21% on the deposited amount from August, 1991. Cost of the proceedings is also demanded. The opposite party in its written version has argued that on account of the stay order dated 11.3.1991 passed by the Civil Judge the possession could not be delivered. The complainant could have taken possession by getting the documents of Registry by 31.12.1992. The complainant is not entitled to any damages.

The learned District Forum, after considering the case of the parties and after hearing both the parties, directed the U.P. Avas Vikas Parishad for payment of interest at the rate of 18% per annum on the deposited amount of Rs. 82,360/- from 1.11.1991 to 28.3.1993 which was to be paid within a period of one month. It was further provided that if this is not paid by 3.7.1993 then with effect from 3.7.1993 Rs. 40/- per day will have to be given as compensation.

AGGRIEVED against the order of the learned District Forum, U.P. Avas Evam Vikas Parishad has come in appeal and has challenged the correctness of the order passed by the District Forum. We have heard the learned Counsel for the appellant. None was present on behalf of respondent inspite of notice sent on service postage stamps. Hence the appeal was decided ex-parte.

LEARNED Counsel for the appellant has argued that the possession has already been delivered on 29.3.1993 which fact was disclosed before the learned District Forum. According to learned Counsel, the possession was not taken in pursuance of the letter of possession. It has further been argued that on account of the stay order of the Civil Judge the possession could not be delivered earlier. No copy of the order of the Civil Judge has been filed in order to indicate as to whether any stay order was granted by the Civil Judge from taking possession or from the development of the plot in dispute. Therefore, this argument of the learned Counsel for the appellant cannot be accepted. Similarly the appellant has not filed any copy of letter indicating that the complainant refused to take possession in pursuance of the possession letter. It is not possible to believe that the complainant who has deposited the amount in August, 1991 would not have taken possession of the plot in view of the fact that he has been granted loan from the Bank for construction of a house over the plot. Thus keeping in view these facts, the order of the learned District Forum granting interest is perfectly correct and requires no interference. It has further been argued that the damages at the rate of Rs. 40/- per day has been awarded in addition to the interest on Rs. 82,360/-. No doubt the amount of Rs. 40/- per day is very much on the higher side and will amount to penal damages. It has not been indicated by the learned Counsel for the appellant as to whether the amount of interest has been paid or not. This amount was to be paid by 3.7.1993 as indicated by the learned District Forum in its order. A period of eight years has lapsed and if the complainant has not been paid this amount as interest, then the complainant will be entitled to claim interest over this amount. It was the duty of the appellant to have also paid this amount within the time prescribed by the learned District Forum. The interest has been awarded from the date of deposit of the amount till the date of possession. Therefore, instead of Rs. 40/- per day it is provided that the interest at the rate of 12% per annum shall be payable on Rs. 82,360/- from 3.7.1993 till the date of its payment. Interest over interest can be awarded in appropriate cases and it is an appropriate case in which the interest is allowed treating this amount of interest as principal amount because the complainant has not been paid this amount for a period of about eight years. This view is supported by the observations of the Hon''ble Supreme Court in the case of Oil and Natural Gas Commission v. M.C. Celland Engineers SA, IV (1999) SLT 170=(1999) 4 SCC 327. Thus keeping in view the facts of the case the appeal is liable to be dismissed, however, with the modification that instead of Rs. 40/- per day as damages the appellant shall pay interest at the rate of 12% per annum on Rs. 82,360/- from 3.7.1993 till the date of payment. Order The appeal is partly allowed to the extent that instead of damages at the rate of Rs. 40/- per day the appellant shall pay interest at the rate of 12% per annum on Rs. 82,360/- from 3.7.1993 till the date of payment. The rest portion of the judgment and order of the learned District Forum are confirmed.

LET compliance of the order be made within a period of six weeks from today.

LET copy as per rules be made available to the parties. Appeal partly allowed.