EKTA BUILDERS vs Ram Autar

THESE two appeals arise out of a common judgment passed by District Consumer Forum, Lucknow in Complaint Case Nos. 250/1993 and 251/1993. THESE complaint cases were initiated by Ram Autar and Om Prakash Verma respectively with the allegation that since the appellant/opposite party in the complaint did not honour the commitment of handing over possession of two shops, Nos. 4 and 5 in the proposed constructed tenement, the amounts deposited by them should be refunded with up-to-date interest.

THE admitted position is that Om Prakash had deposited Rs. 61,350/- by 14.4.1991 whereas Ram Autar had deposited Rs. 38,350/- by 10.4.1991. When the complaints were heard before the District Consumer Forum, notices were issued to the appellant who filed detailed objections and written statements. The pleadings of the opposite party/appellant consistently was that since the complainants did not deposit the entire agreed amount and the total deposits made by them fell short of the agreed amount, they were neither entitled for allotment of shop nor could they claim any interest on the deposited amount. The District Consumer Forum has proceeded to decree the complaints for the amounts deposited by both the complainants as noted above along with 18% per annum interest and Rs. 2,000/- as costs in both the complaints. Mr. M.H. Khan, learned Counsel for the appellant and Mr. R.K. Gupta, learned Counsel for the respondents/complainants in both the appeals have been heard at length. The entire record has been placed by them which have been scrutinized thoroughly.

It is argued by Mr. M.H. Khan, learned Counsel for the appellant that in the instant case the complaint also admits that at no point of time the amount deposited was sought (sic.) over possession of two shops, Nos. 4 and 5 in the proposed constructed tenement, the amounts deposits by them should be refunded with up-to-date interest.

THE admitted position is that Om Prakash had deposited Rs. 61,350/- by 14.4.1991 whereas Ram Autar had deposited Rs. 38,350/- by 10.4.1991. When the complaints were heard before the District Consumer Forum, notices were issued to the appellant who filed detailed objections and written statements. The pleadings of the opposite party/appellant consistently was that since the complainants did not deposit the entire agreed amount and the total deposits made by them fell short of the agreed amount, they were neither entitled for allotment of shop nor could they claim any interest on the deposited amount.

THE District Consumer Forum has proceeded to decree the complaints for the amounts deposited by both the complainants as noted above alongwith 18% per annum interest and Rs. 2,000/- as costs in both the complaints. Mr. M.H. Khan, learned Counsel for the appellant and Mr. R.K. Gupta, learned Counsel for the respondents/complainants in both the appeals have been heard at length. THE entire record has been placed by them which have been scrutinized thoroughly. It is argued by Mr. M.H. Khan, learned Counsel for the appellant that in the instant case the complaint also admits that at no point of time the amount deposited was sought back from the appellant by the two complainants. Factually the complaint itself having been placed from cover to cover by Mr. R.K. Gupta, the aforesaid arguments could not be negativated. The position, therefore, remains that the complainants went to the District Forum with the two complaints with the prayer of refund of the amount with interest without having asked back the money from the appellant. It was then contended by Mr. Khan that awarding of interest would be dependable only on full payment having been made by the complainants. Since admitted position is that required amount was not deposited, the interest payability has been wrongly awarded in favour of the complainants.

THE last argument by Mr. Khan was that the appellant is liable to pay only the deposited amount and not interest. In this connection he pointed out that whatever interest may have accrued on the decretal amount of Rs. 38,350/- in one complaint and Rs. 61,350/- in the other complaint by bank interest on the two FDRs, the complainants could get that very amount and not even the bank interest.

MR. R.K. Gupta, on the other hand, argued with equal vehemence that there is no error in the awarding of 18% interest by the District Consumer Forum. He further contended that the entire amount deposited in the shape of F.D.R. and the interest accrued on it should be directed to be released in favour of the complainants/respondents and the balance interest should be asked to be paid by the appellant. MR. R.K. Gupta in this connection has relied upon the finding recorded by the District Consumer Forum that the constructions made by the appellants were not in accordance with law inasmuch as they were unauthorised and illegal. He further contended that there was misuse of space allotted to the complainants, as a result of which the required number of shutters could not be provided by the appellants to the complainants and that became the bone of contention between the parties are a result of which remaining amount has not been paid. It may be pointed out that the complainants have not obtained possession of the shops. Their prayer in the complaint itself is only for refund of the amount deposited. In view of the aforesaid discussion, the only point to be examined is what should happen to the order relating to the interest of 18% per annum as passed by the District Consumer Forum. It has to be said here that on the facts involved in the present case, the said order suffers on the side of illegality. The deposit of the amounts made by the complainant was in terms of some agreement. This is not denied. Consequently, no demand for refund been made at any point of time by the complainant or for return of the deposited amount, the payability of interest on the said amount is stopped and does not begin at all.

Coming now to the question of the deposited amount of Rs. 38,350/- and Rs. 61,350/- vide FDR in the District Consumer Forum in the execution proceedings, it may be stated that the said amount is duly payable to the complainants with whatever interest may have accrued in those two FDRs. The decree was not stayed by a blanket order. The stay order was with the condition of deposit to be made because of the decree in favour of the complainant/respondent. Therefore, the interest in the two FDRs have to go to the complainant.

COMING now to the question of cost awarded by the District Forum in the two complaints, the net result is that parties are to put 50-50, the cost shall be shared by the parties concerned. These two appeals are disposed of with the following directions : (1) The amount of Rs. 38,350/- and Rs. 61,350/- lying in deposit with the District Consumer Forum in the shape of FDRs shall be payable to the respective complainants with up-to-date interest on those two FDRs. (2) The order of the District Forum awarding interest/compensation to the complainants/respondents is set aside. (3) The parties will bear their cost.

The original judgment shall be kept in the record of Appeal No. 2973/SC/1994 and a certified copy thereof shall be kept in the records of Appeal No. 2974/SC/1994 which shall also be governed by this judgment. Let copy as per rules be made available to the parties. Appeals disposed of.