HARYANA URBAN DEVELOPMENT AUTHORITY vs ATUL DHINGRA

-THIS appeal is directed against the order dated 5. 10. 2000 passed by the District Consumer Disputes Redressal Forum, Kurukshetra whereby while accepting the complaint of the respondent-complainant, following conclusion has been drawn: "for the foregoing reasons, I accept this complaint partly and quash the impugned notice dated 5. 10. 1999 whereby the demand of Rs. 1,23,931 has been raised by the O. P. which includes an amount of Rs. 1,17,330 on account of payment of instalments only to that extent which is to be re-calculated in the light of observations made above, but raised of the amount on account of extension fee and on account of penalty will remains the same, within a period of one month of passing this order, failing which the complainant shall be at its liberty to seek his remedy under Section 27 of the Consumer Protection Act for the compliance of this order. "

PUT shortly, the facts of the case as set out in the complaint are that the complainant had applied for the allotment of the residential plot to the opposite party and had deposited Rs. 24,115 on 4. 5. 1992 along with his application. He was allotted plot No. 63 measuring 13 x 25 mtrs. located in Sector-4, HUDA, Kurukshetra on a tentative price of Rs. 2,41,150, as per allotment letter bearing Memo No. 962 dated 10. 2. 1993. Thereafter, he paid Rs. 36,172. 50 so as to constitute 25% of the total tentative price. The balance price of Rs. 1,80,862. 50 was to be paid in six instalments each of Rs. 30,143. 75. The complainant paid four instalments of Rs. 30,143. 75 each on 10. 2. 1994, 10. 2. 1995, 9. 2. 1996 and 5. 2. 1997 respectively as detailed in para No. 4 of the complaint. He also paid the additional price of Rs. 3,710 for the increase in area of the plot from 325 sq. mtrs. to 330 sq. mtrs. on 18. 6. 1996. In terms of Clause 6 of the allotment letter the possession of the allotted plot was to be offered after completion of the development work in the area. The complainant received a letter dated 11. 12. 1995 whereby he was asked to take possession of the said plot. It is the case of the complainant that no development work in the area such like laying of sewerage, water line, electricity and sheets had been completed and for that reason the complainant did not approach the opposite party for taking possession of the said plot. He also could not deposit two instalments of Rs. 30,143. 75 each and in this manner the total amount of Rs. 60,287. 50 was payable to him towards the instalments amount. The grievance of the complainant is that he had approached the opposite party to develop the area but no action was taken by it, rather, he was served with a demand as per letter bearing Memo No. 11033 dated 5. 10. 1999 for Rs. 1,23,931 which included Rs. 1,17,330 as payment of instalments due from him and Rs. 6,600 as extension fee. In addition they had demanded the penalty amount of Rs. 11,733 for which show cause notice was also issued to him. Terming the above stated demand made as illegal, the complainant filed the present complaint seeking direction against the opposite party to develop the area where the plot in question is located, by providing the necessary amenities; to pay interest @ 18% per annum on the deposited amount from 4. 5. 1992 till the date of payment; to hand over the possession of the plot to him after receipt of two instalments amount and further to pay Rs. 1,00,000 as compensation on account of mental agony and harassment caused to him. The complaint was contested by the opposite party. In the written statement filed a preliminary objection was taken with regard to the complaint being hopelessly barred by time under Section 24a of the Consumer Protection Act, 1986 (hereinafter referred to as the Act, 1986); that the complainant had no locus standi to file the present complaint and that he had concealed the material facts in the complaint because he was a defaulter of the instalments amount. On merits, it was maintained that the possession of the plot was offered to the complainant on 11. 12. 1995 after carrying out the necessary development in the area where the allotted plot is located and as he had failed to take possession of the plot, he was liable to pay interest @ 15% on the balance amount. Thus, they justified the demand made in terms of the above stated notice issued to him. Accordingly, it was prayed that the complaint merited dismissal. On the basis of above pleadings of the parties and evidence adduced on record the District Forum accepted the complaint as per order dated 5. 10. 2000 noticed above. It is against the said order the present appeal has been filed.

Learned Counsel representing the appellant-opposite party has been heard at length. None has chosen to appear to argue the matter on behalf of the respondent-complainant.

LEARNED Counsel representing the appellant-opposite party while assailing the order of the District Forum has made two fold submissions. Firstly, it was contended by him that the District Forum had recorded a definite finding rejecting the stand of the complainant that the development work in the area was not completed and despite the admission of the complainant that he had not deposited the outstanding instalments amount issued the directions to deny the claim on account of the amount payable by the complainant to the opposite party because of the default committed in payment of the instalment amount as he had incurred liability to pay interest for the delayed period. Secondly, it was contended by him that the complaint was clearly barred by time and despite the objections raised, no clear finding has been recorded by the District Forum and the complaint deserved to be rejected on the short ground. In order to appreciate the submissions made, the notice has to be taken of the findings recorded by the District Forum in para No. 5 of the judgment which reads as under: "at the outset, the plea of the complainant being time barred raised by the O. P. deserved to be noticed and rejection because the complainant has got the security cause of action till actual delivery of possession and also a demand of Rs. 1,23,931 has been raised vide notice dated 5. 10. 1999 which also gave or arise the cause of action to the complainant who challenged the correctness of the demanded amount. The facts are admitted by and enlarge by both the parties i. e. , the allotment of the plot was made on 10. 2. 1993 and the possession of the same was offered by the O. P. vide its letter dated 11. 12. 1995. The copy of which is marked in Annexure-B on the record. The short point amongst the parties is that the area where the plot in question is situated is not developed till the date as alleged by the complainant whereas the O. P. contended that the area is fully developed and is capable to give the physical possession. The complainant supported his allegation with his own affidavit and referred the copies of Annexures C to E on the record by the O. P. and arrived at the conclusion that the area where the plot in dispute is situated is fully developed and the claim of the complainant only on the basis of Storm Water Drainage is not developed, cannot be taken to be true, because the contents of Annexure-D has been misread by the Counsel which stand explained by the Annexure-C wherein it is specifically mentioned that the plot bearing Nos. 1 to 104 of Sector-4 are ready to be offered for possession, this memo is dated 31. 3. 1994, therefore, the contention of the complainant that the sector as a whole is not developed yet, even if for the argument sake is admitted to be correct then the same is of no consequence to the complainant because the area where his plot in question fall is fully developed. Therefore, it is the fault of the complainant not to take the possession of the plot in question when the same was offered by the O. Ps. vide its letter dated 11. 12. 1995 that too offered within a reasonable period of 3 years from the date of allotment letter, as is settled in various rulings of the State Commission as well as of the National Commission, etc. For that the complainant is not entitled to any interest on the amount he deposited with the O. P. on account of instalment, etc. Rather he is liable to pay the possession interest after the offer of possession on dated 11. 12. 1995 on the instalments amount falling due thereafter till the date of actual payment @ 15% per annum in accordance with the Clause 6 of the terms and conditions of the allotment along with delayed interest on the amount of the instalments in accordance with Clause 6 of the allotment letter. He is also liable to pay the extension fee, etc. for the non-construction of the building within a period of 2 years from the date of offer of possession on 11. 12. 1995 as per allotment letter. Since the O. P. has not explained/filed the details of the amount of Rs. 1,17,330 mentioned in the impugned notice dated 5. 10. 1999 on account of payment of instalments, this Forum cannot reach at any conclusion whether the same has been calculated in terms of the allotment letter. Therefore, the O. Ps. are directed not to charge any compound interest on account of possession interest and delayed payment of instalments amount and if the same has included in the aforesaid amount of Rs. 1,17,330. 85 ps. then the same has to be re-calculated and a fresh demand may be raised on the complainant. It is also made clear that the O. P. is at its will to proceed with the proceedings under Section 17 (1) of the HUDA Act and to recover the penalty thereof from the complainant strictly in accordance with the provisions of the aforesaid Act. The complaint is liable to be accepted to the extent of aforesaid facts and circumstances. "

The above findings clearly show that the stand of the complainant has been totally negated and thus he has taken a false plea that the area where the plot in question is situated is not developed and for that reason he has withheld the instalments amount. The stand of the opposite party that the complainant has committed the default in this regard has to be upheld. The above stated findings have attained finality so far as the complainant is concerned as he has not filed any appeal against the said order. In view of the above position the District Forum was duty bound to take into account the provisions of Section 24 of the Act, 1986. It is clearly established on record that the possession of the plot in question was offered to the complainant on 11. 12. 1995 by the opposite party. The present complaint came to be filed on 20. 10. 1999. Section 24a cast a duty on the District Forum to dismiss the complaint unless the complainant satisfied the District Forum that the complainant had sufficient cause for not filing the complaint within the period of two years from the date of cause of action had arisen. In this case, the cause of action had arisen to the complainant from the date when he received the letter dated 11. 12. 1995 whereby offer of possession of the plot was made to him. Similar, question arose in case of Surinder Mohan v. Municipal Corporation and Anr. , III (2006) CPJ 136 (NC), wherein the complainant had alleged the allegation of non-providing of the basic amenities in respect of the allotted booth and in that case allotment letter was issued to the complainant in the year 1992 whereas the complaint was filed in 1999. Taking into account the provisions of Section 24a of the Act, 1986, the complainant had a continuing cause of action was not accepted and the complaint was held to be not maintainable, as being barred by limitation. In this case, as well though no application for condonation of delay has been filed from the side of the complainant, consequently it has to be held that the complaint was barred by limitation and on that account the complaint was liable to be dismissed. The District Forum has not taken into consideration all these aspects while accepting the complaint and for that reason the order of the District Forum on the face of record being illegal is accordingly set aside. For the aforesaid reasons, while accepting the appeal the impugned order is set aside and the complaint is accordingly dismissed. Appeal allowed.