MEERUT DEVELOPMENT AUTHORITY vs VISHNU BEER RASTOGI

THIS is an appeal against the judgment and order dated 4.3.1999 passed by District Forum, Meerut in Complaint Case No. 848/1997.

THE facts of the case stated in brief are that the complainant applied for a ''B'' type plot in Sector 5, Phase I of Shatabdi Nagar Scheme. On 26.10.1989 the complainant deposited a sum of Rs. 25,000/- as reservation amount. By letter dated 14.3.1990 plot No. B/209 measuring 250 sq. mts. was allotted to the complainant valued at Rs. 1,12,500/-. By letter dated 17.11.1990 the money was demanded in 8 instalments which was to be paid between 30.11.1990 to 15.11.1994. THE complainant in all deposited a sum of Rs. 1,41,885/-including interest of Rs. 942/-. Inspite of the payment of the entire amount, the possession of the plot has not been delivered because there was no development worth the name on the land as the same was being cultivated by the farmers. Even the sewerage, drainage, water, electric supply etc. were not provided and the roads were also not laid. THE plot allotted to the complainant was not identifiable at the spot. THE complainant is, therefore, entitled to get back the entire amount deposited by him alongwith interest at the rate of 18% per annum as the opposite party charges the same rate of interest on delayed payment. THE complainant has also claimed Rs. 50,000/- as damages alongwith cost of Rs. 1,100/-. The opposite party in the written statement has alleged that the price which was indicated to the complainant was merely estimated price. It is correct to say that the possession of the plot was to be given in 1992 but due to unforeseeable circumstances it could not be done. But it is wrong to say that the possession has not been delivered intentionally. No application for refund was given by the complainant. The refund can be made according to rules. No doubt interest at the rate of 18% per annum is charged according to rules but the complainant is not entitled to this interest.

The learned District Forum, after hearing the Counsel for the parties and considering the evidence on record, came to the conclusion that there was a deficiency on the part of the opposite party and ordered for refund of the entire deposited amount alongwith 15% interest as well as cost of Rs. 500/-.

AGGRIEVED against the order, 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 parties. The opposite party put in appearance at the time of admission. Hence the appeal was heard on merits.

THE only question which is to be decided in the present case is whether the possession could not be delivered by the opposite party on account of some unforeseeable reasons in the year 1992 or whether the opposite party is guilty of not delivering the possession intentionally. THE rate of interest has also been challenged. From the perusal of the order it is clear that there was no development work on the plot as alleged by the complainant. The cultivation was going in this plot even after expiry of the date of handing over the possession. What was the reasons why the possession was not delivered by the opposite party has not been indicated. Merely saying that the possession could not be delivered due to unforeseeable reasons is not sufficient. Special reasons should have been pointed out by the opposite party appellant on account of which the possession could not be delivered. No reasons have been disclosed by the opposite party. Thus the only conclusion which can be drawn is that the opposite party is guilty of deficiency in service and in not handing over the possession of the developed plot to the complainant as promised. If the appellant was not in a position to hand over the possession of the disputed plot due to certain reasons, then he should have on his own refunded the amount to the complainant but it kept on retaining the amount and utilised the same for its own purpose. It does not lie in the mouth of the appellant to say that the refund will be made in accordance with the rules of the appellant. According to the rules the entire amount is not refunded but a portion of it is to be deducted out of the amount deposited by the complainant. The provisions of this rule shall only apply when the fault lies with the complainant and the complainant refuses to take delivery of the plot when it is fully developed and is offered for delivery to the complainant by issuing letter of possession. Nothing of this sort happened in the present case. Thus the complainant is entitled to get the entire amount deposited by him.

THE next question is about the rate of interest. THE complainant has claimed interest at the rate of 18% per annum but the learned District Forum has allowed interest at the rate of 15% per annum. THE learned District Forum had admitted during the course of arguments that in the brochure it is mentioned that penal interest at the rate of 18% is chargeable if the amount due on instalments is not paid within the time. When the Development Authority charges interest at the rate of 18% per annum on default, when allottee had not deposited the amount in time, then this rate of interest is liable to be paid by the appellant, if there is a deficiency of service on its part. This aspect of the matter was considered by the National Commission in the case of George Thomas & Ors. v. Ghaziabad Development Authority & Ors., I (1999) CPJ 18 (NC). It has been held that "in our opinion it will meet the ends of justice if the complainants are awarded interest at the rate of 18% per annum by way of compensation on the amount which the Authority is required to refund. This is also so, because under Clause 3.6 of the Scheme reproduced above, the Authority recovers interest at the rate of 18% per annum on defaults on the amounts payable to it. THErefore, the rate of interest that should be allowed to the complainant must be the same".

THE learned Counsel for the appellant has placed reliance on the case of United India Insurance Company Limited v. M.K.J. Corporation, III (1996) CPJ 8 (SC). THE Hon''ble Supreme Court in that case was dealing with the case under the Insurance Act. THE rate of interest allowed by the Apex Court in that case is not applicable in the case of Development Authority because in this case it has been specifically held that the complainant had to pay penal interest at the rate of 18% per annum after a default is committed by him in payment of instalments. THE interest has been allowed in the form of loss which has been suffered by the complainant during the period the amount remained with the appellant. But as the claimant has not filed any appeal no interference is required in the judgment. Thus we do not find any force in the appeal and it deserves to be dismissed. ORDER The appeal is dismissed with cost of Rs. 1,000/-. Let the compliance of this order be made within two months from the date of this order.

Let the copy of this order be made available to the parties as per rule. Appeal dismissed with costs.