MEERUT DEVELOPMENT AUTHORITY vs SHOBHIT AGGRAWAL

THIS is an appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter called the ''Act'') against judgment and order dated 15.6.1993 passed by District Consumer Forum, Meerut in Complaint Case No. 112 of 1991.

INITIALLY a complaint under Section 12 of the Act was filed by the complainant with the allegation that a plot No. 3/33 in the Rakshapuram Housing Scheme was allotted to the complainant vide letter dated 12.7.1988. It was alleged that it was desired that the complainant should deposit a sum of Rs. 26,000/- towards allotment amount which was complied with. Subsequently the scheme was available for the allottees to avail the facility of payment of instalments. The same was disclosed vide letter dated 11.1.1991 wherein it was specifically made clear that a plot measuring 300 sq. mtrs. bearing No. 3/33 has been allotted to the complainant on 12.7.1988 and the total cost was Rs. 1,05,000/- at the rate of Rs. 350/- per sq. mt. and after deductions made he has to pay Rs. 64,000/-. Through complaint it was ventilated by the complainant that instead of complying with the aforesaid letter dated 11.1.1991, the opposite party sent a notice dated 30.1.1991 alleging that he was liable to pay only the balance amount of Rs. 64,000/- in six monthly instalments of Rs. 8,000/- and not interest thereon. The complainant alleging that the opposite parties committed deficiency in service, a complaint has been filed before the learned District Forum. The opposite party filed a written statement and stated that in accordance with Rule 32 of the Rules framed relating to Rakshapuram Housing Scheme, the amounts of instalments were calculated and the complainant was legally bound to pay the same. Since, instead of depositing the same amount of Rs. 64,000/- in lumpsum, instalment procedure was adopted, the complainant was under obligation to pay the instalments as per the details given in Annexure 5.

The learned District Forum after perusing the material available on record and hearing the submissions of the Counsel for the parties, passed the impugned order.

AGGRIEVED against the same, present appeal has been filed. We have heard learned Counsel for the appellant Mr. B.P. Dubey and learned Counsel for the respondent/complainant Mr. Sanjeev Bahadur Srivastava and have also perused the material available in record.

THE only grievance which has to be adjudicated, as argued by Mr. Dubey, is that in the light of Annexure 5 permitting the complainant to opt for the mode of payment in instalments, it was not available to the District Forum to hold that no interest was payable on the instalments and should not have proceeded at all to hold that the interest is not chargeable. Mr. Srivastava on the other hand submitted that once Annexure 5 has been issued, it has been made clear that the complainant is under obligation to make payment of Rs. 64,000/- only, it was not open for the appellant to have charged exorbitantly on the pretext of penal interest. Needless to emphasise that the proceedings before the Forum is summary in nature and it has got a limited scope to look into these matters as to whether any deficiency in service at all has been committed. If the consumer is in a position to make out the case that there is deficiency in service, there is no restriction that the Consumer Forum cannot set aside such order and pass a suitable order. Sub-section 2(1)(o) of Section 2 defines the word "Service" as under: " ''Service'' means service of any description which is made available to potential (users and includes but not limited to the provision of) facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, (Housing construction), entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."

THE term of "deficiency" too has been defined in Section 2(1)(g) which reads as under: " ''deficiency'' means any fault, imperfection, shortcoming or inadequacy in the quality, nature of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service."

To make out a case of deficiency in service, what is required under the law is that the service of any description must be made available to the potential user and in providing such service there cannot be any fault in the nature and manner of performance. The appellant is a Development Authority. The complainant, being applicant, deposited the registration money and subsequently it was decided by the appellant to allot a plot measuring 300 sq. mt. known as plot No. 3/33. The mode of payment was described and the approximate cost would be, at the rate of Rs. 350/- per sq. metre. Rs. 1,05,000/-. It was made further clear that after deduction of registration as well as allotment money, the total money to be paid was Rs. 64,000/- which was payable in eight equal 6-monthly instalments along with interest. It is further clear from the perusal of the Annexure 5 that it was clearly stipulated that in case the instalments as per provisions would not paid by the date fixed, the appellant will be entitled to charge interest by way of penalty. It is further clear that all the eight instalments have been detailed showing the money and date by which each instalment has been paid meaning thereby that it makes the complainant under an obligation that if the first instalment is to be paid, it has to be paid by 28.2.1991 and so is the case for the next instalment. In case those instalments, as per specifications and provisions, are not paid the development authority will also be entitled for charging interest. In the instalments shown, the interest is already shown. Rs. 64,000/- which was required to be deposited was towards the capital money and the instalment was the part of the capital plus interest and if it is calculated the total comes to Rs. 87,920/-. That means over and above it was made amply clear by the appellant that whatever money was charged, i.e., Rs. 23,920/- additionally, was charged by way of interest for not making the payment of capital in lumpsum. It may be that the drafting of the letter in question may suffer from certain faults. The eight instalments are not equal. The purpose of eight equal 6-monthly instalments means the instalment of Rs. 8,000/- plus interest thereon and that is already shown by the chart. The first instalments is for Rs. 8,000/- because in making that payment the interest is not being clubbed. Subsequently after reducing the first instalment, i.e., on Rs. 56,000/- interest has been charged to the tune of Rs. 4,000/- and further the interest has been reduced. Thus there is no wrong in it. There is no deficiency in the service. The argument of Mr. Srivastava that this letter is itself arbitrary, penal and obsessing is not acceptable. This forum only exercises the summary proceedings and is only possesses quasi-judicial powers. This Forum does not possess any other power to declare the letter as ultra vires. For that the Forum is entirely different. The learned District Forum in our considered view while asking for realization of capital money only and thereby wiping the interest has exercised the power not vested in it and the exercise has been done in a most arbitrary manner. The order has no legal standing and is not substantiated. Therefore, the order is liable to be set aside.

HOWEVER, in the circumstances if the complainant is interested in getting the allotted plot in view of the terms and conditions, that can be done, subject to payment of instalments as shown in Annexure 5. The appellant in that contingency will not charge any sum by way of penal interest over and above what has been discussed above. In case the complainant is not interested in getting the plot, a request in writing can be made for refund of the money so deposited according to law as per terms and conditions contained in the brochure. ORDER The appeal is allowed. The judgment and order of the learned District Forum is set aside and the complaint is dismissed. No order as to the costs. Appeal allowed.