HIMACHAL PRADESH HOUSING BOARD vs MASTER HARAMB MITTAL

THE challenge in this appeal is to the order of the learned District Forum, Solan, dated 23.4.96.

THE brief facts of the case necessary to be mentioned for determining the point in controversy are that the respondent/complainant (hereinafter to be referred to as the complainant) who is a minor, through his guardian Dr. Mrs. Manju Mittal, applied for category I type of flat in the month of April, 1989 to the appellant/opposite party H.P. Housing Board (hereinafter to be referred to as the opposite party). As per terms of the allotment, Annexure R-4, the flat was to be constructed tentatively within a period of two and half years. THEre is no dispute that initially the complainant paid the amount to the opposite party demanded by them. However, the dispute arose between the parties when the complainant was asked to pay another sum of Rs. 73,500/- to the opposite party within 45 days of the letter, Annexure R-6, so that the possession of the flat could be delivered to him. THE amount of Rs. 73,500/- was demanded from the complainant because of the escalated price of the flat. THE complainant did not pay the amount and challenged the escalation of the price in this complaint. It appears that vide letter dated 23.3.94, Annexure R-12, the allotment of the flat was cancelled. The opposite party has resisted the complaint on the ground that the allotment of the flat has been cancelled vide letter dated 25.3.94. Annexure R-12, and, therefore, no complaint would lie. Further that the opposite party has every right to enhance the price of the flat. Again, the date of construction of the flat was only tentative and this date could be extended by the appellant.

The learned District Forum has Held that the demand for payment of escalated price vide letter dated 31.7.93 is arbitrary and the complainant is entitled to interest @ 16% per annum on the sum of Rs. 1,75.000/- with effect from 1.4.92 to 31.7.93. The District Forum has further directed not to charge interest on the enhanced amount demanded vide letter dated 31.7.93, Annexure R-6, till actual payment of enhanced price was made by the complainant. It is not disputed that the possession has been delivered to the opposite party in June, 1996 and the actual payment had been made in May, 1996.

MR. Deepak Gupta, learned Counsel for the opposite party submits that the opposite party could not have been burdened with interest @ 16 per annum on the sum of Rs. 1,75,000/- with effect from 1.4.92 till 31.7.93 by the District Forum as the date by which the flat as required to be completed as given in letters Annexures R-3 & R-4, is only tentative. In our judgment in Complaint No. 21 of 1990 Vijay Kumar. Joshi v. State of Himachal Pradesh and Others, decided on 20.12.96, we have Held that where the date given for the completion of the flat is tentative, period of which can be reasonably extended by one year. Therefore, according to the principle laid down in that order, the flat should have been completed by 1st April, 1993 and possession delivered thereafter. Therefore, in our opinion, the complainant is entitled to interest on the sum of Rs. 1,75,000/- from 1.4.93 to 31.7.93 and we hold accordingly.

MR. Deepak Gupta, learned Counsel for the opposite party further strenuously urges that the letter dated 25.3.93 for cancellation of the flat, Annexure R-12, could not have been set aside by the District Forum as this was not the subject matter of the complainant. We are unable to accept this contention. There is no dispute that the escalated price has been challenged by the complainant in his complaint and the cancellation of the flat vide Annexure R-12 is a necessary consequence of the non-payment of the escalated price. Further, this letter was issued, after the date of filing of the complaint i.e. 27.11.93. In the aforementioned circumstances, therefore, in our opinion., non-challenging of the afore-mentioned letter of the cancellation of flat is not fatal to the case more particularly when it was a subsequent development and this controversy was present in mind between both the parties in the trial before the Court. Moreover while giving relief in appropriate cases/the Court has ample powers to mould the relief in the-interest of justice. Therefore, such a contention must fail. The next contention of Mr. Gupta which was repeated and stressed time and again is that the enhanced price was demanded vide letter dated 31.7.93, Annexure R-6. No doubt, this escalated price was made subject matter of the complaint but ultimately the District Forum has upheld the escalated price. Now the opposite party can charge the interest on the amount of Rs. 73,500/- demanded from the complainant vide above letter till actual payment. The District Forum has erroneously directed the opposite party to issue fresh demand notice to the complainant within one month after receipt of the order and the complainant then shall be bound to pay such amount within 30 days of the demand notice. In other words/ the opposite party shall not be entitled to charge interest from the date when originally escalated price was demanded from the complainant vide letter dated 31.7.93 till actual payment. No doubt, the escalation of price vide letter dated 31.7.93, Annexure R-6, has been up Held but it cannot be disputed or denied that such matter was under challenge between the parties and the District Forum after coming to the conclusion that prima facie a case has been made out, had issued an interim order dated 19.5.94 that the respondent i.e. H.P. Housing Board is restrained from resuming the flat and also ordered not to enhance the price of the flat and the possession of the flat was also ordered not to be delivered to the complainant till the decision of the complaint. From these circumstances, it is apparent that even according to the District Forum, there was arguable dispute between the parties regarding the payment of escalated price whether or not such escalated price could be charged by the opposite party. Further no doubt the complainant cannot challenge the escalated price because the dispute is not a consumer dispute. Nevertheless it cannot be denied and overlooked that the complainant has suffered because of enhancement of the cost of construction due to the negligence of the opposite party in not completing the construction within time. The Court in these facts and circumstances of the case, with a view to prevent mis-carriage of justice and hardship to the parties has rightly extended the time for payment of such a price within 30 days of fresh demand notice.

IN a similar case Complaint No. 25 of 1990, Bhag Singh Saini v. Shimla Development Authority, decided on 5.8.92 II (1992) CPJ 1043, this Commission in these peculiar facts and circumstances of the case extended the time for payment of the enhanced/escalated price. So, once the date for payment of escalated price has been extended by the District Forum and rightly so it cannot be said that there is any belated payment by the complainant and the question of payment of interest in these circumstances can not arise. This contention of the learned Counsel fails.

IN the light of what is discussed above, the appeal of the opposite party is partly accepted only to the extent that the complainant shall be entitled to interest on the sum of Rs. 1,75,000/- for the period with effect from 1.4.93 to 31.7.93 and the order of the learned District Forum stands modified accordingly. However, no interference is called for in respect of other relief(s) granted to the complainant by the District Forum. The appeal stands disposed of accordingly.

There is no orders as to costs. Appeal partly accepted. ___________