DATTA VISHWANATH SHETE vs PRABHA P.SHETTY

PETITIONER was the complainant before the District Forum, where he had filed a complaint, alleging deficiency in service on the part of the respondent.

VERY briefly the facts of the case are that the parties entered into an agreement for construction of a flat on 22.12.1991 and for development of the said property. As per terms of the agreement, the total cost of the flat was Rs. 6,00,000 of which Rs. 1,66,000 already stood paid and the balance of Rs. 4,34,000 was to be payable in instalments starting with August 1998 to December 1998. It was the case of the complainant that he had made the payment in time and there was delay in delivery of possession. There were also defects in the complainant''s building. The respondent has also not given the promised rebate of 3% as also the issue relating to maintenance charges. Since issue was not getting settled, a complaint was filed before the District Forum, who allowed the complaint in following terms: "2. The applicant was given the possession of flat with delay of four months and ten days. Hence, as per agreement, the non-applicant should pay the interest on Rs. 6,00,000 @18% p.a. for the period starting from 1 January, 1999 upto the date of receipt of judgment. Said interest is to be paid within six weeks from date of receipt of the copy of judgment. If said order is not implemented in time, the non-applicant should pay the interest on Rs. 6,00,000 @ 24% p.a. Besides that, the non-applicant should give full completion certificate of the Municipal Corporation to the applicant within six weeks from the date of receipt of the copy of judgment. 3. Even though the applicant had paid full amount of the flat, the work of non-applicant was of sub-standard quality and consequently the applicant has to suffer mental harassment. Hence the non-applicant should pay Rs. 10,000 to the applicant within six weeks from the date of receipt of the copy of judgment. 4. As per agreement the electrical bell should be installed in the flat of the applicant. 5. The non-applicant should pay Rs. 500 towards the expenses of the case."

Aggrieved by this order, the respondent/opposite party filed an appeal before the State Commission, who after hearing the parties partly allowed the complaint and passed the order in following terms: "1. Appeal is partly allowed. 2. In place of Clause No. 1 of the operative part of the order of the impugned judgment we direct that appellant shall pay on the amount of Rs. 5,70,000 instead of Rs. 6,00,000 interest @ 18% from 1.1.1999 till 9.3.1999. 3. Rest of the order is confirmed...."

Dissatisfied with this order, this revision petition has been filed before us.

WE heard the learned Counsel for the petitioner at some length. It is admitted position that the reliefs given by the District Forum were not challenged by the petitioner/complainant before the State Commission, hence they would be deemed to have attained a finality as far as petitioner is concerned.

IN the order passed by the State Commission on appeal filed by the respondent, only modifications made relate to the amount on which interest was to be payable, which reduced from Rs. 6,00,000 to Rs. 5,70,000 and the period of interest was also reduced "from 1.1.1999 up to the date of receipt of judgment" as ordered by the District Forum to 1.1.1999 till 9.3.1999. Rest of the reliefs were confirmed. In view of the above changes in the order passed by the State Commission, we deal with these two points only. Learned Counsel for the petitioner drew our attention to letter dated 9.3.1999, which is addressed to the complainant stating that the flat is ready and the petitioner can take possession after paying the last instalment. The amount was deposited on 9.4.1999 (page 39 of the paper book) and possession was given on 9.4.1999 itself. Since as per the terms of the agreement, the possession was to be given in December 1998, since offer was made on 9.3.1999, i.e., after delay of 3 months and 9 days, the State Commission is quite correct in awarding the interest for the period from 1.1.1999 to 9.3.1999 for the simple reason that the petitioner, in any case, was to get the flat completed by 31st December, 1998. Any period after that date, i.e., 31.12.1998 would amount to delay till the offer is made by the respondent, i.e., on 9.3.1999 (page 37 of the paper book). It is the petitioner/complainant who took one month to pay the balance amount and since the possession was given same day, the delay after 9.3.1999 cannot be attributed to the respondent. Hence this part of the order calls for no interference. It is also admitted position that out of Rs. 6,00,000 of the cost of the house upto 31st December, 1998 only Rs. 5,70,000 had been paid and rest of the amount was paid on 9.4.1999. Since Rs. 30,000 paid after that date, i.e., on 9.4.1999 the petitioner cannot expect interest and that too @18% p.a. for amount not deposited in time, i.e., on 9.3.1999. The petitioner also wishes to draw our attention to letter dated 28.4.1999 (page 40 of the paper book) through which the respondent had sought ''part completion certificate''. We are afraid we cannot take any cognizance of this issue at this stage as this issue was settled by District Forum order and petitioner did not file any appeal against that order. Since the order passed by the District Forum had attained finality, as far as the petitioner is concerned, the petitioner is now ''estopped'' from raising this issue at this stage.

IN the aforementioned circumstances, we see no merit in this revision petition. The order passed by the State Commission if at all has erred in favour of the complainant when they have granted rate of interest @ 18% p.a. whereas as per settled law they should be given interest @ 12% p.a. since the possession has already been given to the petitioner.

THE revision petition has no merits and is hereby dismissed. Revision Petition dismissed.