HOUSING COMMISSIONER, U.P. HOUSING AND DEVELOPMENT BOARD vs HIRDAYA NARAIN SINGH

THIS is an appeal against the judgment and order dated 24.6.1999 passed by District Consumer Forum, Allahabad in Complaint Case No. 879/95.

THE facts of the case stated in brief are that the complainant was allotted a Plot No. B-20 in auction for a sum of Rs. 18,944.40. THE complainant deposited the entire amount between 1.1.1981 to 29.8.1981. As this plot was disputed one on account of Kabristan, the possession of the same could not be given to the complainant. THE complainant has applied for refund of the amount deposited by him alongwith interest and compensation of Rs. 25,000/-. The opposite party has admitted that the plot was auctioned but the possession could not be delivered to the complainant.

The learned District Forum after considering the case of the parties, came to the conclusion that on account of the fault of the appellant, the possession could not be delivered to the complainant, hence it ordered for refund of the amount alongwith interest at the rate of 11% per annum which will be added onwards the principal amount. That amount will carry further interest at the rate of 18% per annum if the compliance of the order be not made within the stipulated time. It also awarded a sum of Rs. 200/- as cost.

AGGRIEVED against the order of the learned District Forum, the appellant has come in appeal and has challenged the correctness of the order passed by the District Forum. We have heard the learned Counsel for the appellant without issuing notice to the complainant for the reason that he will be put to unnecessary burden by coming to this place because the question raised by the learned Counsel for the appellant has been settled by the various decisions of this Commission, the Hon''ble National Commission and the Hon''ble Supreme Court. The issuing of notice will add to the cost of the opposite party and the judgment would be the same even if the complainant is also heard.

IT is an admitted fact that the plot was auctioned for a sum of Rs. 18,944.40 but the possession of the plot could not be delivered to the complainant. According to the learned Counsel, the possession could not be delivered to the complainant on account of fact that some unauthorised person has taken possession over the plot in dispute, even though the letter of possession was issued on 27.5.1981. Thus, there is deficiency on the part of the appellant in not delivering the possession of the plot in dispute which was sold by auction to the complainant. If the possession of the property was not to be delivered by the appellant then plot should not have been auctioned before getting it vacated from the persons who have taken unauthorised possession of the plot. The learned Counsel has further argued that District Forum has no jurisdiction to entertain the complaint as the plot was purchased in auction. According to the learned Counsel, it was an out-right sale and no element of service was involved in it. No doubt, if it is an out-right sale then the complainant will not be a consumer as per Consumer Protection Act, but in the present case, the facts will go to show that the amount was deposited by the complainant in instalments and element of service was involved. In the grounds of appeal in para No. 4, it has been specifically mentioned that the entire amount was deposited by the complainant in four instalments. When these instalments were allowed by the opposite party for the said plot then the element of service is there because the plot was not sold on the out-right basis but on the instalments basis. Therefore, in view of the facts of the case, the complainant will be a consumer and the learned District Forum was perfectly justifying in coming to the conclusion that the complainant is the consumer and there is deficiency in service on behalf of the opposite party.

THE learned Counsel for the appellant has further argued that the amount of interest which has been awarded has been added to the principal amount and thereafter the interest at the rate of 18% per annum has also been awarded. THE facts of the case did not justify for adding the amount of interest in principal amount and allowing the interest over the same. In the present case, the interest has been allowed at the rate of 11% per annum from December, 1981 till the date of payment. It is also provided that the amount if not paid within the period of two months then the interest will run at the rate of 18% per annum. In this way the learned District Forum has committed a mistake in treating the interest as principal amount as the facts of record do not justify it. This amount has not to be added in the principal amount, therefore, the order of the learned District Forum will have to be modified to the extend that on the principal amount of Rs. 18,940/- the complainant will get simple interest at the rate of 18% per annum till the date of payment alongwith Rs. 200/- as cost has already been ordered.

THE learned Counsel for the appellant has argued that the principal amount has already been paid on 30.6.1995. If it is so then the interest at the rate of 18% per annum on the amount deposited will run upto 30.6.1995. THE interest part shall be paid within a period of two months from the date of this judgment. THE appellant has not paid interest for such a long period of 5 years, therefore, in view of the inordinate delay in payment of interest it cannot be ordered at this stage that on this amount of interest which is payable from the date of payment of the amount till the date of judgment by this Commission. THE appellant shall pay interest at the rate of 12% per annum. Thus, the appeal is liable to be allowed in part. Order The appeal is partly allwed. The judgment and order of the learned District Forum regarding the refund of entire deposited amount of Rs. 18,940/- alongwith 18% per annum interest from September, 1981 till the date of payment of the amount is upheld. The judgment of District Forum shall stand modified accordingly. Let compliance of this order be made within a period of two months from the date of this order. Let copy be made available to the parties as per rules. Appeal partly allowed.