BHUBANAESWAR DEVELOPMENT AUTHORITY & ANR vs BHASKAR CH. MOHAPATRA

The challenge in this revision petition has been made to the impugned order dated 17.05.2010, passed by the Odisha State Consumer Disputes Redressal Commission, Cuttack (hereinafter referred to as "the State Commission") in C. D. Appeal No. 833/2004, Shri Bhaskar Ch. Mohapatra vs. Secretary, Bhubaneswar Development Authority (BDA) & Anr., vide which, while partly allowing the appeal, the order dated 21.09.2004, passed by the District Consumer Disputes Redressal Forum, Khurda, in Consumer Complaint No. 191/2001, dismissing the said complaint, was set aside.

Briefly stated, the facts of the case are that the complainant/respondent, Bhaskar Chandra Mohapatra filed the consumer complaint in question before the District Forum, saying that he applied for a shop-cum-residence unit under Chandrasekharpur, Phase-I scheme by depositing Rs. 20,000/- on 14.10.1988 with the petitioner Bhubaneshwar Development Authority (BDA) and he was assigned registration no. SR-26. The OP/BDA allotted the shop-cum-residence to him vide letter no. 3048 dated 18.02.1989, stating that the outright cost of the said shop-cum-residence was Rs. 2,04,000/-. In case the allottee wanted to purchase on outright basis, he was required to pay the entire amount before the execution of the sale deed. However, if he wanted to purchase on instalment basis, he was required to deposit a sum of Rs. 61,200/- as down payment before execution of the agreement and the balance amount was to be paid in 32 quarterly instalments @ Rs. 7,863/- per quarter. It was also stated in the said letter that the amounts indicated above under both the schemes should be paid within 30 days from the date of issue of the letter with the concerned branch of the State Bank of India. The complainant stated that he obtained house building advance from the Government and he paid various amounts from time to time as per the details below:-

Sl. No. Date Amount

1 14.10.88 Rs. 20,000/-

2 20.6.90 Rs. 41,200/-

3 03.9.91 Rs. 55,000/-

4 03.9.91 Rs. 52,300/-

Total Rs. 1,68,500/-

The complainant made a further payment of Rs. 35,500/- on 01.06.1992 and in this way, he made a total payment of Rs. 2,04,000/- by 01.06.1992. The case of the complainant is that he had purchased the said property on ''outright basis'', and although he was required to deposit the amount of Rs. 2,04,000/- within 30 days of the allotment letter dated 18.02.1989, i.e. by 19.03.1989 (30 days), the BDA may charge suitable interest from him for late payment. On the other hand, the stand taken by the BDA is that the complainant had taken the property on ''instalment basis'' and hence, he was required to make the entire payment on instalment basis i.e. Rs. 61,200/- as down payment and balance money of Rs. 2,51,616/-, which was the amount of 32 equal quarterly instalments @ Rs. 7,863/- each. In the meantime, the possession of the property was given to the complainant in the year 1991 and the property is being occupied by him since then. By filing the consumer complaint in question, the complainant sought directions to the OPs to execute the sale deed immediately and also to award a compensation of Rs. 1 lakh for mental harassment and Rs. 5,000/- as litigation cost.

The complaint was resisted by the OP/BDA by filing a written statement before the District Forum in which they stated that since the amount of Rs. 2,04,000/- was not deposited within 30 days of the letter dated 18.02.1989, the complainant was required to pay the consideration amount under the instalments scheme i.e. a total sum of Rs. 3,12,816/- including initial payment of Rs. 61,200/- and a sum of Rs. 2,51,616/- payable in 32 quarterly instalments.

The District Forum, after taking into account the averments of the parties, dismissed the complaint, concluding that the allotment was to be considered under instalment basis and hence, the complainant was required to pay the same under instalment plan as demanded by BDA. Being aggrieved against the said order, the complainant challenged the same by way of an appeal before the State Commission. Vide impugned order dated 17.05.2010, the State Commission allowed the appeal and stated as follows:- "We direct the opposite parties to compute/calculate interest in respect of the amounts already paid subsequent to 18.03.1989 till 01.06.1992, when the last of such payments was made, at the rate at which the other allottees are charged."

Being aggrieved against the above order of the State Commission, the OP/BDA is before this Commission by way of the present revision petition.

During one of the hearings on the revision petition, the learned counsel for the BDA was asked to file a statement, giving calculations of the demand raised by the BDA against the complainant/respondent. The petitioners filed the calculation sheet on 22.07.2016, stating that the authority was entitled to charge interest @ 18% on the balance payment from the complainant till 01.06.1992. Based on these calculations, a sum of Rs. 97,264/- was outstanding against the complainant on 01.06.1992. On the said amount, the complainant was required to pay interest @ 9% p.a. till date and also damage charges @ Rs. 50/- per day. The Authority raised a total demand of Rs. 4,32,661/- against the complainant. On the other hand, the learned counsel for the complainant/respondent vehemently argued that full payment of Rs. 2,04,000/- had been made by the complainant to the OP/BDA, although there was delay in payment of a portion of the said price. The OP/BDA could charge any reasonable interest for the period of delay, as they had done from the other allottees and they were prepared to pay the said interest for the period of delay.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

It shall be worthwhile to reproduce the contents of the allotment letter dated 18.02.1989, sent by the OP/BDA to the complainant, which says as follows:- "We are pleased to inform you that you have been provisionally selected for allotment of shop-cum-residence in Chandrasekharpur Market Complex. The outright cost of the shop-cum-residence is Rs. 2,04,000/-. In case you want to purchase on outright basis, you have to pay the entire amount before execution of the sale deed. In case you want to purchase on instalment basis, you shall deposit Rs. 61,200/- as down payment before execution of an agreement as and the balance amount in 32 quarterly instalments @ Rs. 7,863/- per quarter.

If you are interest to purchase the property, you may deposit the amount indicated above within 30 days from the date of issue of the letter in the State Bank of India, Main Branch Bhubaneswar in favour of Bhubaneswar Development Authority in S.B. Account No. C-232 failing which it will be construed that you are not interested for the same and the offer of allotment shall stand automatically cancelled."

It is evident from the above letter that the cost of the shop-cum-residence is Rs. 2,04,000/-. In case a person wants to purchase it on outright basis, he is required to pay that amount within a period of 30 days. However, if the said allottee wants to purchase it on instalments, he has to make payment of Rs. 61,200/- within a period of 30 days from the date of issue of the letter and the balance money is to be paid in 32 quarterly instalments of Rs. 7,863/- per quarter, meaning thereby that a period of 8 years is given to such an allottee to give complete payment and that period would have expired in the year 1997. In the present case, the complainant made the entire payment of the price of the units i.e. Rs. 2,04,000/- in five instalments between the period 14.10.1988 and 01.06.1992. It is clear, therefore, that the complainant did not follow the schedule laid down by the OP/BDA for making the payment, either on outright basis or on instalment basis. The OP/BDA is asking him to make payment on instalment basis and have taken the stand that the entire payment of Rs 3,12,816/-, payable on instalment basis, should be deposited by the complainant . with them. This contention of the OP/BDA obviously defies logic, because if the complainant wanted to take the property on instalment basis, he could have continued to make payments in 32 quarterly instalments and would have made the last payment in the year 1997. In the present case, however, the last payment was made on 01.06.1992. It is clear that the amount of Rs. 2,51,616/- in 32 quarterly instalments of Rs. 7,863/- for each instalment, contains the element of interest as laid down by the OP/BDA till the year 1997. Since the entire price of the plot was paid before 1997, the complainant is not required to make payment of interest for the period subsequent to the date of payment made by him. It shall, therefore, be in the fitness of things that considering the fact that part payment for the property was made later than 30 days of the date of allotment, the complainant should pay interest to the OP/BDA for the period of such delay. It shall be prudent if the OP/BDA charges same interest from the complainant, as was done from other allottees, or the interest levied while calculating the quantum of money payable in 32 quarterly instalments. As directed by the State Commission, the OP/BDA should do the calculations of interest and charge interest on delayed payment at the same rates, as was charged from the other allottees.

The calculations sheet provided by the OP/BDA during the time of hearing mentions the rate of interest to be charged from the complainant as 18% for certain period and 9% for rest of the period. It has not been explained, however, as to how such interest is proposed to be charged @ 18% or 9%. The calculations made by the OP/BDA are, therefore, without any basis and cannot be accepted.

Based on the discussion above, this revision petition is disposed of with direction to the OP/BDA for charging interest from the complainant for the period of delay committed in paying part of amount of Rs. 2,04,000/-, which was the total price on outright basis. Such interest shall be charged at the same rate as realised from other allottees in accordance with the policy of OP/BDA. The contention of the OP/BDA for realising the full amount payable on instalment basis till the year 1997 is rejected. The Revision Petition stands disposed of as ordered above. There shall be no order as to costs.