HEM RAJ MAHAJAN vs H.P. NAGAR VIKAS PRADHIKARAN

THIS appeal is directed against the order of the learned District Forum, Shimla, dated 29.4.1997, whereby the complaint of the appellant/complainant (hereinafter to be referred to as the complainant) has been dismissed by the District Forum.

IN the complaint, the main prayer of the complainant was confined to the payment of interest @ 18% per annum on the amount deposited by the complainant till the date of delivery of the possession of the house. The learned District Forum in paragraph 7 of the order, by relying upon the judgment of the National Commission in Sarthak Behuria & Another v. The Orissa State Housing Board and Another, III (1993) CPJ 384 (NC), has dismissed the complaint on the ground that the complainant had filed the complaint after taking over the possession of the house and that he cannot be heard to say that there has been unnecessary delay in the construction of the house, and therefore, he is not entitled to any relief of interest.

In fact, we have also decided this question accordingly in Sant Ram Sharma v. Shimla Development Authority, Original Complaint No. 51 of 1993 and other connected cases. While deciding this question in the aforementioned cases, we had one distinction in mind that the aforementioned principle would apply only in cases where no protest in any form, whatsoever, was made by the complainant at the time of taking over the possession or entering into Hire Purchase Tenancy Agreement. In the present case, we notice that at the time of taking over the possession of the house and entering into Hire Purchase Tenancy Agreement, the complainant has raised serious protest vide Annexure All dated 29.4.1993, which may be reproduced below : "Possession of independent House No. A5 Type A in Sector No. I Lane No. V having a total plot area of 95.29 sq. mt, plinth area 50.74 sq. mt. under 2nd SFS for Residential Complex below B.C.S., Shimla Development Authority, Kasumpti, Shimla-9 vide letter No. SDA-Admn. (h) 2nd SFS/IH(A)4227-14928-30 dated 24.12.1992 taken over from the Assistant Engineer, Const. Sub-Divn. No. IV, Shimla Development Authority, Pateog, Shimla-9 today the 29th April, 1993, without prejudice to my rights qua escalation in cost, interest, general conditions of the house, delay etc. in respect of house in question"

THIS is apparent that the possession of the house has been taken over by the complainant without prejudice to his rights qua the escalation in cost, interest, general conditions of the house, delay in respect of taking over the possession of the house etc. Not only that, he has also made a representation dated 1.6.1994 (Annexure A-14) before filing the complaint, wherein he has made a grievance that he has not been paid interest @ 18% per annum for delayed delivery of the possession of the house and that should be paid to him accordingly and ultimately within the period of limitation, admittedly, the complaint was filed by the complainant. Prior to making such representation, the complainant was under reasonable expectation that the opposite party will pay him interest, as was awarded in similar cases by the Consumer FORA. Therefore, the present case is distinguishable from the case of Sant Ram Sharma (supra), as in the present case, the possession was taken over under protest. Even the decision of the National Commission supra may not apply in the present case and is distinguishable as in that case, the possession appears not to have been taken over under protest and this question was not raised before the National Commission. Furthermore, the letter written by the complainant to the CEO-cum Chief Engineer, Shimla Development Authority dated 11.8.1992 (Annexure A-9) thanking the Authority for allotment of the house is hardly of any relevance as the same was written much before taking over the possession of the house and entering into Hire Purchase Tenancy Agreement. THIS letter also does not show in any form, whatsoever, that the complainant has given up his right of interest for delayed delivery of the possession and the reliance placed on this letter by the District Forum is wholly mis-conceived. Having regard to above circumstances, we are of the opinion that the complainant is entitled to interest @ 18% per annum in consonance with our decision in Vijay Kumar Joshi v. State of Himachal Pradesh & Others, Original Complaint No. 21 of 1990 decided on 20.12.1996, which also relates to 2nd Self-Financing Scheme. It may be noticed that the tentative cost of the house was Rs. 1,44,000/- which, admittedly, was deposited by the complainant before December, 1988 or at any rate before delivery of the possession of the house and the possession was offered to be delivered on 24.12.1992 and, therefore, the complainant is entitled to interest @ 18% per annum on the amount of Rs. 1,44,000/- with effect from 1.1.1990 to 24.12.1992.

IN view of above discussions, the appeal is allowed and the order of the District Forum is set aside. The opposite party is directed to pay interest to the complainant on the amount of Rs. l,44,000/- with effect from 1.1.1990 to 24.12.1992, @ 18% per annum. The amount of interest so ordered to be paid can be adjusted by the opposite party against the balance payment the complainant has to pay if not already paid within a period of one month. IN case the balance amount already stands paid, the amount of interest as directed shall be payable within one month to the complainant. IN case of failure to do so, the complainant shall further be allowed interest @ 18% per annum on the aforementioned amount from the date of order till actual payment. No other points were urged. There is no orders as to costs. Appeal allowed.