Himachal Pradesh Housing vs Kusum Lata Vasisht

PER JUSTICE V.B. GUPTA, PRESIDING MEMBER By way of present petition, there is challenge to order dated 19.11.2008 passed by State Consumer Disputes Redressal Commission, Shimla (for short "State Commission") vide which it dismissed the appeal of the petitioner and upheld the order dated 3-02-2007, passed by District Consumer Disputes Redressal Forum, Una (For short "District Forum").

BRIEF facts of this case are that respondent herein, filed a complaint under Section 12 of the Consumer Protection Act, 1986 (for short "Act") against petitioner alleging that she applied for allotment of house HIG-I and entered the Hire Purchase Tenancy Agreement with petitioner on 22.7.1998. She also paid Rs.10,000/- as earnest money and Rs.93,855/- being 15% of the cost of the house, against total cost of Rs.6,25,700/-. She was put in possession of HIG-I House in June, 1998. Balance cost of the house i.e. Rs.5,21,845/- was paid to the petitioner, vide letter dated 10.8.99 of Estate Manager, H.P. Housing Board,. After receiving the balance cost of the house, it was obligatory on the part of the petitioner to intimate the details of penal interest or any amount standing against her. But petitioner remained silent for more than 10" months. Thereafter, it issued letter dated 16.2.2000 informing her that after adjustment of Rs.5,21,845/-, a sum of Rs.58,608/- is still pending, without giving any details of the account. Respondent asked for the details but petitioner did not reply. Thereafter, petitioner issued letter dated 5.8.2002 intimating the interest of Rs.77,496/- as calculated upto 31.7.2002, without giving any detail. These act and conduct of the petitioner, amounts to deficiency in service on its part with intention to exploit the respondent by charging undue penal interest to which she is not liable to pay and cause the respondent great agony, inconvenience and harassment.

Petitioner in its written statement admitted that House No.26 in Housing Colony, Una Phase-II was allotted to the respondent vide allotment letter dated 29.6.1998 on Hire Purchase basis at a sale price of Rs.6,25,700/-. In the allotment letter, it was made clear that in case respondent wants to make the payment of the house in lump sum i.e. Rs.6,15,700/-, the same was required to be deposited within 30 days from the issue of allotment letter, but respondent instead of making balance lum sum payment of the house which was required to be deposited within 30 days from issue of allotment letter dated 29.6.1998, failed to make the payment in lump sum within 30 days and rather she opted to make payment in installments. Thereafter, respondent was requested to make payment in lump sum by raising loan, first from her employer and thereafter from State Bank of Patiala. Thus, petitioner is entitled to charge interest on the delayed payment as per terms and conditions of the allotment letter and clause 2(q) of Hire Purchase Tenancy Agreement. Balance payment was made only after one year from the issue of the allotment letter and as such respondent is liable to pay penal interest on the delayed amount and the balance due comes to Rs.88,297/- upto 31.3.2003.

WE have heard learned counsel for the parties and have gone through the record. Initially, the complaint of respondent was dismissed by District Consumer Forum vide its order dated 4th February, 2004, on the ground that intricate question of fact and interpretation of provisions of Hire Purchase Tenancy Agreement and terms and conditions of allotment is involved.

FEELING aggrieved by the dismissal of the complaint, respondent filed appeal (No. 41/2004) before State Commission, which vide its order dated 31st August, 2006 set aside the above order of the District Forum and remanded back the matter. After remanding, District Forum on 3rd February, 2007 passed the following order:- "Admittedly, the sum of Rs.5,21,845/- was received in the office of the opposite party on 29-07-1999 and on receipt of this amount, the opposite party has not claimed interest/penal interest, however, after lapse of period of more than 10" months, the opposite party claimed that after adjusting of Rs.5,21,845/- an amount of Rs.57,926/- is still payable by the complainant if paid in lump sum by 30-06-2000. By accepting the amount of Rs.5,21,845/- without reserving the right for further claim, the time limit of 30 days to deposit the balance cost in lump-sum as per Para No. 4 of the allotment letter (Annexure R-I) is presumed to have been extended in view of acceptance of balance amount of Rs.5,21,845/- without reserving the right of claim of interest/penal interest. Since the balance amount was received by the opposite party on 29-07-1999, therefore, they are ordered and directed to calculate the penal interest only on delayed payment of seven monthly installment for the months of January, 1999 to July, 1999 and on delayed payment of 2nd 15% of the cost of the house for eight months i.e. from December, 1998 to July, 1999 only and shall add the interest with the due balance amount as on 29-07-1999 and then shall calculate the balance amount as on 29-07-1999 and shall communicate the complainant the total amount due as on 29-07-1999 and the balance amount recoverable from the complainant after deducting Rs.5,21,845/- and amount already deposited on account of earnest money and 1st 15% of the cost of the house, within a period of 30 days from the receipt of copy of this order and thereafter the complainant shall deposit the amount so calculated by the opposite parties within a period of 30 days from the receipt of intimation from the opposite parties regarding the amount to be deposited by the complainant. If the complainant feeling aggrieved and dis-satisfied with the calculation of the opposite parties, she is at liberty to approach this Forum again."

It is contended by the learned counsel for the petitioner that respondent had only paid earnest money of Rs.10,000/- and the first installment of 15% cost i.e. Rs.93,855/- and had taken over possession of the house by executing Hire Purchase Tenancy Agreement. As such, she was to pay the second installment of 15% of the cost i.e. Rs.93,855/- within 6 months from the date of Allotment Letter i.e. by 29-12-1998 and the balance 168 monthly installments by 10th of each month, starting from 10th January, 1999. Clause Q of the Hire Purchase Tenancy Agreement had clearly stipulated that in case of late payment, penal interest @ 1.5% per month is payable. As such, respondent is liable to pay penal interest on delayed payment @ 18% per annum on the delayed payment of the 2nd installment of 15% of the cost and also on the subsequent monthly installment till balance amount is paid. Moreover, respondent has also admitted her liability to pay the penal interest.

ON the other hand, it is contended by learned counsel for the respondent that petitioner after receiving the balance cost of the house remained silent for more than 10" months and thereafter informed the respondent about pending balance amount and asked for the penal interest, which is illegal. Moreover, there are concurrent findings of the two fora below and no legal issue is involved in this petition.

SHORT question involved in this revision petition is as to whether respondent is liable to pay penal interest for the delayed payment of installment and if so, for what period. State Commission, vide impugned order has concurred with the findings of the District Forum and observed: -- "After having heard learned counsel for the parties and in the face of the above extracted facts, as well for the reasons be recorded hereinafter, we are of the view that impugned order suffers from no infirmity so as to call for interference in this appeal. We at the risk of repetition notice here that receipt of aforesaid Rs.6,25,700/-, (i.e. Rs.10,000/- + Rs.93,855/- + Rs.5,21,845/-) between 22-07-1998 to 29-07-1999 is not in dispute. As such the core question that needs to be determined is as to whether the appellant no. 1 is entitled to claim interest together with penal interest as was urged by learned counsel for the appellants or not. In this behalf, we are of the view that the District Forum below has taken most reasonable; pragmatic as well as legal view of the whole matter by directing the respondent to pay the amount as is evident from the operative portion of its order, extracted hereinabove. Faced with this situation learned counsel for the appellants persisted with vehemence, that his clients are entitled to the amount as detailed in the communication dated 5-08-2000 i.e. Rs.77,496/- together with future interest/penal interest from 1-08-2002 till the date of payment/deposit. If this submission is taken on its logical end, we are of the view it will be allowing the appellants to become unduly enrich without there being any basis either in law or otherwise. Interest of justice, fair play, besides equity also demands that so long the installments were in default, respondent is liable to pay interest/penal interest in terms of the allotment letter. Once the total cost of the property in dispute was received by appellant no. 1, it cannot be allowed to reiterate that it is entitled to interest as well interest on interest and or penal interest. Such a demand is not only illegal and unconscionable, but is also unreasonable, besides being opposed to public policy."

We find no reason to disagree with the above findings of both the Fora below. Admittedly, petitioner after having received a sum of Rs.5,21,845/- on 29th July, 1999 from the respondent did not claim any interest/penal interest. All of a sudden after more than 10" months after receiving the above payment, petitioner woke up and demanded further sum of Rs.57,926/- being outstanding. This demand, by any stretch of imagination, cannot be said to be legal or justified.

SUPREME Court in Mudigonda Chandra Mouli Sastry vs. Bhimanepalli Bikshalu and others, (AIR 1999 (SC) 3095) observed; "It was also not open to the High Court in exercise of its revisional jurisdiction to have indulged in a reassessment of evidence and thereby interfered with the finding of the facts recorded by the two Courts below."

Recently, Supreme Court in Rubi (Chandra) Dutta vs. United India Insurance Co. 2011 (3) Scale 654 observed; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. IN this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora."

SINCE two Fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, the present petition being not maintainable, is hereby dismissed with costs of Rs.20,000/- (Rupees twenty thousand only). Petitioner is directed to deposit the costs by way of cross cheque in the name of "Consumer Legal Aid Account" within four weeks from today. In case, the costs are not deposited within prescribed period, the petitioner shall be liable to pay interest @ 9% p.a. till realization.

LIST for compliance on 12th August, 2011.