Himanshu Aneja vs Ansal Properties And Infrastructure Ltd

THIS revision is directed against the order of the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, the State Commission) dated 30.11.2012 whereby the State Commission allowed the appeal preferred by the opposite party, set aside the order of the District Forum and dismissed the complaint.

BRIEFLY put, facts relevant for the disposal of the revision petition are that the petitioner filed a consumer complaint before District Forum, Panipat alleging that M/s Sam Buildwell Pvt. Ltd. has purchased plot No.D -1666 measuring 300 sq. yards from the respondent/opposite party vide agreement dated 1.2.2007. The complainant purchased aforesaid plot from M/s Sam Buildwell Pvt. Ltd. for Rs.3,75,000/ - vide agreement dated 26.2.2008. Thereafter, as per the final call notice of the respondent, the complainant deposited the development charges including external development charges, internal development charges and interest vide eight receipts for total amount of Rs.3,23,815/ -. It is the case of the complainant that the respondent/opposite party after having collected the development charges including interest during the period w.e.f. 27.2.2008 to 3.6.2009 has issued demand notices dated 6.1.2011, 22.3.2011 and 18.5.2011 calling upon the complainant to pay a sum of Rs.1,83,857/ - on account of interest on EDC charges. The said demand according to the complainant is against the terms of agreement between the parties as well as the Rules and Regulations and amounts to deficiency in service. The complainant has thus filed consumer complaint praying for direction to the respondent/opposite party to withdraw its demand notices as also to pay compensation to the tune of Rs.50,000/ - besides the cost of litigation.

THE respondent/opposite party resisted the complaint. In the written statement it was pleaded that the demand of interest on EDC charges has been rightly raised as per Clause (II) of the agreement between the parties which reads as under: Apart from the above internal services if any external and/or peripheral services are provided by any Government or local authority for any bigger zone and any charge is levied thereof and or any other charges are levied in any respect, the same shall also be payable in addition to the aforesaid price of the plot and be paid pro -rata by the buyer as determined by the Director, Town & Country planning Haryana. The opposite party has, thus, prayed for dismissal of complaint. Learned District Forum on appraisal of the pleadings and the evidence allowed the complaint and directed the respondent/opposite party not to demand Rs.1,83,857/ - and withdraw the letter of demand dated 22.3.2011.

BEING aggrieved of the order of the District Forum, respondent/opposite party approached the State Commission in appeal and the State Commission vide impugned order allowed the appeal and set aside the order of the District Forum with following observations: - Learned counsel has also drawn our attention to Section 20 of the Indian Contract Act, 1982, which is reproduced as under: -

Agreement void where both parties are under mistake as to matter of fact. Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement the agreement is void. Explanation. An erroneous opinion as to the value of the thing which forms the subject -matter of the agreement, is not to be deemed a mistake as to a matter of fact. The explanation added to section 20 of the Indian Contract Act makes it clear that where some mistake has occurred in the value of subject matter, same can be rectified and it will not make the contract ab initio, as is mentioned in Section 20 of the Indian Contract Act. Learned counsel for the appellant has further drawn our attention to Section 69 of the Indian Contract Act, which is reproduced as under: - Reimbursement of person paying money due by another, in payment of which he is interested. A person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other. So far as Section 69 of the Indian Contract as well as law laid down in the case titled Urban Improvement Company Private Limited vs. Sardar Ujagar Singh, 1996 HRR 337 is concerned, we are of the view that same are not applicable to the facts and circumstances of the case and same are entirely different on a different prospect.

LEARNED counsel for the petitioner/complainant has contended that the order of the State Commission is based upon incorrect appreciation of fact as also incorrect interpretation of Clause -2 of the agreement between the parties and Section -20 of the Indian Contract Act. Expanding on the argument it is contended that perusal of Schedule -II of the agreement between the parties would show that this schedule provides for the payment of external development charges in instalments. Learned counsel has contended that all the instalments as per schedule have been paid. Therefore, there is no question of the opposite party asking for any interest on the EDC charges. Thus learned counsel has urged us to allow the revision petition and set aside the order of the State Commission.

LEARNED counsel for the respondent on the contrary has argued in support of the impugned order and pressed for dismissal of the revision petition.

ON careful consideration of the submissions made on behalf of the parties and the material on record, we find merit in the contention of the petitioner. On careful reading of Clause -2 of the agreement between the parties reproduced above, it is clear that as per this clause if any external and/or peripheral services are provided by HUDA or any local authority for which any charges are levied the same shall be payable by the purchaser in addition to the price of the flat on pro -rata basis. On perusal of the copy of the agreement between the parties particularly the Schedule -II to the agreement we find that this schedule provides for the time bound manner in which the external development charges were required to be paid by the complainant. Undisputedly, the external development charges in terms of the above schedule have already been paid by the complainant. This means that while entering into agreement with the complainant the opposite party was aware of EDC charges and he had received the payment of the complainant s share of EDC charges in terms of Schedule -II of the agreement. There is no evidence on record that after entering into agreement with the complainant the opposite party received any demand either from HUDA or any local authority for EDC or any other charges levied in respect of some external or peripheral services. Therefore, the opposite party had no right to raise further demand in violation of the terms and conditions of agreement. If the opposite party for any reason has delayed the payment of EDC charges for which he is required to pay interest, he cannot shift the liability on the complainant who as per the terms of agreement has paid the external development charges in accordance with the payment schedule annexed to the agreement.

THE State Commission in the impugned order has also taken a view that payment schedule pertaining to the EDC charges was agreed upon between the parties under mistaken impression of the fact pertaining to pro -rata liability of the complainant and, therefore, in view of Section 20 of the Indian Contract Act that part of the contract itself is void. We do not find merit in this contention. Section 20 of the Indian Contract Act reads as follows: - 20. Agreement void where both parties are under mistake as to matter of fact. Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement the agreement is void. Explanation. An erroneous opinion as to the value of the thing which forms the subject -matter of the agreement, is not to be deemed a mistake as to a matter of fact. "Explanation. An erroneous opinion as to the value of the thing which forms the subject -matter of the agreement, is not to be deemed a mistake as to a matter of fact."

ON bare reading of the above provision, it is clear that an agreement is void where both the parties are under mistake as to matter of fact. In the instant case the opposite party at the time of agreement with the complainant was fully aware of the EDC charges demanded by the authority and because of this reason only the payment schedule was agreed upon. If at all while preparing the payment schedule the Opposite Party was under mistake as to the Complainant s share he cannot take shelter of Section 20 of the Contract Act which is attracted where both the parties to contract are under mistake as to the matter of fact. Further, the explanation to Section 20 makes it clear that an erroneous opinion as to value of the thing which forms subject matter of the agreement is not to be deemed as a mistake as to matter of the fact. At best, the case of the Opposite Party is that he was having an erroneous opinion pertaining to the liability of the Complainant in respect of EDC charges on prorate basis. That being the subject matter of the agreement, explanation makes it clear that it cannot be termed as a mistake of fact as envisaged under Section 20 of the Indian Contract Act. Thus, it clear that the order of the State Commission is against the agreement between the parties and also based upon wrong interpretation of Section 20 of the Indian Contract Act. As such it cannot be sustained. On the contrary, we find that the District Forum in its order dated 27.8.2012 has rightly appreciated the facts and allowed the complaint.

IN view of the discussion above, we are of the opinion that the impugned order of the State Commission is not sustainable because of material irregularity. We accordingly allow the Revision Petition, set aside the impugned order and restore the order of District Forum.