LUCKNOW DEVELOPMENT AUTHORITY vs PANKAJ SACHAN

BOTH these appeals have been filed against the judgment and order dated 4.9.1997 passed by District Consumer Forum-I, Lucknow in Complaint Case No. 1023/1994.

THE facts of the case stated in brief are that the complainant had applied for a house in Wazir Hasan Road Scheme and he was allotted House No. 4/218/G in the said scheme. THE complainant had paid all the instalments in terms of the payment schedule within the stipulated time. One instalment was not paid in time for which penal interest was paid. In this way the amount of Rs. 1,75,000/- was deposited by the complainant with the opposite party, Lucknow Development Authority. It is alleged that the possession was to be delivered upto 31.10.1993 but the same has not been delivered so far. Hence the complaint has been filed. It is further alleged that the house allotted is not in ground floor while the house in ground floor was to be allotted to the complainant. The complainant has, therefore, prayed for possession of the house, registration of sale deed, compensation and cost, etc.

The opposite party in the written version has alleged that in the newspapers dated 2.12.1994 it was published that the allottees who have paid the last instalments are entitled to get possession of the house after completing the formalities. The complainant took the step in pursuance of that advertisement. In view of level plain two houses of the ground floor are on ground floor and remaining two on parking lot but all the four are ground floor houses. The cost of the house was tentative which was likely to increase.

THE parties led evidence in support of their respective contentions before the learned District Forum who after considering the facts came to the conclusion that there was deficiency on behalf of the Lucknow Development Authority and hence it directed the opposite party to deliver possession of house No. 4/218/G of Wazir Hasan Road to the complainant within sixty days and to pay interest on the sum of Rs. 1,75,600/- at the rate of 21% per annum with effect from 25.6.1992 till the date of possession. A sum of Rs. 300/- was also awarded as cost. Aggrieved against the order of the learned District Forum, both the complainant as well as opposite party have come in appeals.

WE have heard the learned Counsels for the complainant as well as opposite party, Lucknow Development Authority. Learned Counsel for the Lucknow Development Authority has argued that the possession has been delivered on 2.11.2001. According to learned Counsel in the year 1994 an advertisement was published to the allottees to take possession of the house after completion of formalities. A perusal of file goes to show that even after delivery of the judgment by the learned District Forum in the month of September, 1997 the possession of the house was not given. In appeal an order was passed on 23.2.1998 in the presence of both the parties that the possession is to be taken by the complainant on payment of enhanced cost of Rs. 83,385/-. It was, therefore, ordered that the delivery of the possession be effected within a period of three months from the date of payment of enhanced cost. In pursuance of this order the possession of the house was delivered on 2nd November, 2001. Thus it goes to show that the publication of advertisement in the newspapers was merely a formality and the possession was not delivered to the allottees because enhanced cost of the house was to be charged from the allottees. There is no evidence in record to show that some other allottees in the same scheme were given possession of these houses on payment of Rs. 1,75,000/- as mentioned in the brochure. Thus we find that the Lucknow Development Authority did not adhere to its commitment to deliver possession on payment of Rs. 1,75,000/- only. Even in the written statement filed on 21.8.1995 it was alleged that the possession be taken but in spite of that the possession was not given. The deficiency, therefore, is proved to be of the Lucknow Development Authority in not handing over possession of the house in dispute. Thus we find that the complainant is entitled to get interest over the amount deposited by him for the delayed period in handing over the possession. Learned Counsel for the appellant has argued that the rate of interest at the rate of 21% per annum should not be awarded. Learned Counsel for the complainant has placed reliance on the case of George Thomas & Ors. v. Ghaziabad Development Authority, I (1999) CPJ 18 (NC), in which the National Commission has awarded interest at the rate of 18% per annum on the ground that the Development Authority is charging the same rate of interest from their allottees in case they fail to pay the instalments in time. The National Commission in another case of Dr. Ramesh Chandra Ramaniklal Shah & Ors. v. Lata Construction Company & Ors., I (1996) CPJ 81 (NC), also awarded interest at the rate of 18% per annum. The Full Bench of the Allahabad High Court in the case of Smt. Vrinda Gujrati & Ors. v. Bareilly Development Authority & Ors., 1996 (II) Allahabad Rent Cases 363, has held that the petitioners are entitled to get interest at the rate of 18% per annum for the delayed delivery of possession on the amount deposited by him till the actual date of delivery of possession. The Hon''ble Supreme Court in the case of Ghaziabad Development Authority v. Union of India & Ors., II (2000) CPJ 1 (SC)=IV (2000) SLT 654=2000 CTJ 205, has held that the principle underlying assessment of damage is to put the aggrieved party monetarily in the same position, as far as possible, in which it would have been if the contract would have been performed.

IN the case of Haryana Urban Development Authority v. Rajnish Chander Sharde, VII (2000) SLT 142=JT 2000 (8) SC 154, the Hon''ble Supreme Court has allowed interest at the rate of 18% per annum on the amounts that had been deposited by the respondent from time-to-time till a new plot is allotted to him and possession thereof is delivered. The interest awarded by the National Commission at the rate of 18% per annum was upheld by the Hon''ble Supreme Court. IN the latest case of Ghaziabad Development Authority v. Dhanesh Chand Goel, Special Leave Petition (Civil) No. 11315/2000, (three Judges) the Hon''ble Supreme Court has considered the judgment in the case of Ghaziabad Development Authority v. Union of INdia, II (2000) CPJ 1 (SC)=IV (2000) SLT 654=2000 (6) SCC 113, and has held that on the facts of the case the rate of interest of 18% per annum is in accordance at a reasonable rate. The special leave petition was dismissed.

THUS we find that the Hon''ble Supreme Court has awarded interest at the rate of 18% per annum as was being held by this Commission right from the very beginning on the ground that the Development Authority is charging penal interest at the rate of 18% per annum to 21% per annum on late deposits of instalments by the allottees. On equitable grounds the Development Authority should also pay the same rate of interest which it is charging from its allottees. THUS the rate of interest which is allowed to the complainant against the Development Authority will be 18% per annum. Thus the interest at the rate of 18% per annum is allowed. The interest awarded by the District Forum at the rate of 21% per annum is reduced to 18% per annum. With this modification the Appeal No. 1859/SC/1997 is liable to be allowed in part.

Appeal No. 3283/SC/1999 has been filed by the complainant against the same order passed by the District Consumer Forum. In this appeal the appellant has not filed the certified copy of the judgment of the learned District Forum. He has merely filed the typed legible copy of the judgment. The appellant should have filed the certified copy of the judgment against which the appeal is filed. Therefore, this appeal is incomplete. Moreover it is argued that this appeal is barred by limitation. It appears that the complainant has not filed the appeal within the period of limitation. Hence the copy of the judgment has not been filed. As seen in the earlier part of the judgment, the District Consumer Forum had decided this matter on 4.9.1997. Even in the grounds of Appeal No. 1859/SC/1997 filed by the Lucknow Development Authority against the complainant, the complainant had moved an application in compliance of order dated 23.2.1998 of this State Commission for hearing in this appeal. The application was drafted on 23.10.1998 and was moved on 23.11.1998. A perusal of the order sheet of that appeal also goes to show that Mr. G.N. Sachan had appeared before this Commission on 17.11.1997 and received copy of the order dated 23.11.1998. This shows that the complainant had knowledge of the judgment on 15.12.1997 if not earlier. He could have filed the appeal within one month of the delivery of judgment of the District Forum. This appeal was filed on 22.11.1999 which is highly time-barred and as such the appeal is liable to be dismissed on this ground itself. Therefore, this appeal is dismissed as barred by limitation. ORDER Appeal No. 1859/SC/1997 is allowed in part to the extent that the rate of interest awarded by the District Forum is reduced to 18% per annum. Appeal No. 3283/SC/1999 is dismissed as barred by limitation. No order as to costs. Let compliance of the order be made within a period of two months from the date of this order. The original judgment and order shall be kept in the records of Appeal No. 1859/SC/1997 and a certified copy thereof shall be kept in record of Appeal No. 3283/SC/1999 which shall also be governed by this judgment and order. Let copy as per rules be made available to the parties. Appeal allowed.