Prakash Wadhwani vs Ghaziabad Development Authority

PETITIONER who was the original complainant-decree holder before the UP State Consumer Disputes Redressal Commission (hereinafter referred to as ''the State Commission'' for short) has filed the present Revision Petition against the order dated 5th October, 2005 in Execution Case No. 3 of 2001 wherein the State Commission has directed the petitioner-decree holder to refund the sum of Rs. 1,84,541 to the Ghaziabad Development Authority, respondent herein, which had been received in excess, within a month.

BRIEFLY stated, the facts of the case are: The petitioner applied for allotment of a Two Room Apartment on 30th December, 1989 under Kaushambi Apartments (Phase-Ill) Scheme floated by the respondent. He deposited registration amount of Rs. 46,500 on 30th December, 1989 with the respondent. Respondent vide its letter dated 30th January, 1990 informed the petitioner that it had reserved a Two Room Apartment (Deluxe) for him. Estimated cost of the apartment was fixed at Rs. 4,65,000. In the said letter respondent also gave the schedule of payment to be made towards the cost of the apartment in five instalments. Respondent vide its letter No. 19816/THA/90 informed the petitioner that it had allotted apartment number DHAULAGIRI/404 under the said scheme to him.

PETITIONER, thereafter, made the payment of Rs. 4,65,000 as per schedule provided by the respondent details of which are as under: Date Particulars Amount 30.12.1989 Registration fees Rs. 46,500 1.12.1992 1st and find instalment Rs. 1,86,000 21.12.1992 3rd installment Rs. 93,000 1.2.1993 IVth instalment Rs. 93,000 20.2.1993 Vth instalment Rs. 46,500

ON 11th January, 1994 respondent sent a letter to the petitioner informing him that the apartment allotted to him was ready for possession and the final cost of the said apartment was determined at Rs. 5,10,000. Petitioner was directed to pay the balance amount of Rs. 45,000 together with Rs. 3,000 as lease rent. Petitioner deposited the aforesaid balance amount on 27th January, 1994. Thus, from 30th December, 1989 to February, 1994 petitioner paid a total sum of Rs. 5,17,441.

IN February, 1994 when the petitioner visited the apartment he found that the respondent, instead of two rooms apartment, had allotted a one room apartment. Petitioner did not accept the offer of one room apartment. He then approached the officers of the respondent who advised him that since all the flats had already been allotted he should apply for refund of the amount deposited by him. Petitioner ran from pillar to post requesting for allotment of a double room apartment, but in vain. Finally, in July 1995, when he found that all his efforts were of no avail submitted an application for refund of the amount along with interest @ 18% p.a. He sent all the original documents relating to the allotment of apartment for the purpose of refund to the respondent on 4th August, 1995. Respondent after the receipt of the application from the petitioner refunded Rs. 1,60,000 on various dates details of which are given as under: Date Amount 22.9.1995 Rs. 40,000 13.10.1995 Rs. 25,000 8.11.1995 Rs. 25,000 1.12.1995 Rs. 50,000 6.1.1996 Rs. 20,000 Total: Rs. 1,60,000

Thus, till 6th January, 1996 respondent refunded Rs. 1,60,000 to the petitioner.

ON 17th April, 2000 during the pendency of the complaint with the State Commission respondent made a further payment of Rs. 3,45,816 to the complainant. In this manner, respondent refunded an amount of Rs. 5,05,816(Rs. 1,60,000+ Rs. 3,45,816) to the petitioner till the disposal of the complaint by the State Commission on 4th January, 2001. The State Commission disposed of the complaint in the following terms: "Thus we find that the complaint is liable to be allowed. A sum of Rs. 3,45,816 has been paid to the complainant on 17.4.2000, therefore, the interest on this amount shall cease with effect from 17.4.2000 and the remaining principal amount, if any, along with the interest at the rate of 18% per annum shall be payable. The complaint is allowed with the remark that the amount already paid shall be deducted from the amount which is to be paid to the complainant by Ghaziabad Development-Authority. The Ghaziabad Development Authority shall pay the cost of Rs. 3,000 to the complainant."

ON 5th March, 2001 petitioner filed the Execution Application before the State Commission claiming a sum of Rs. 5,88,636. During the pendency of the execution petition the State Commission passed an interim order on 17th May, 2001 directing the respondent to deposit Rs. 5,88,636 failing which Secretary, G.D.A. was to be arrested. The relevant portion of the said order reads as under: "According to the calculation of the decree holder, Rs. 5,88,636 is due against the G.D.A. Counsel for the decree holder to take steps by disclosing the name of the Secretary of G.D.A. within ten days. When the name is disclosed then the warrant of arrest be issued through S.S.P. to the Secretary of the G.D.A. by name which has been given by the decree holder. It is further provided that if the amount of Rs. 5,88,636 is given to the Arresting Officer by the Secretary, G.D.A. then the warrant of arrest will not be executed. The draft of amount so realized be prepared in the name of Mr. Prakash J. Wadhwa and be sent to the State Commission Consumer Protection, 2A Rana Pratap Marg, Lucknow, shall be returnable by 25.7.2001."

IN view of the order passed and under the threat of arrest, respondent made the following payments to the petitioner: Date Amount 2.7.2001 Rs. 3,36,401 6.11.2001 Rs. 1,84,541

Total amount paid by the respondent to the petitioner comes to Rs. 10,26,758 as under: 1. Paid by GDA as has Rs. 5,05,816 been shown in cal- culation memo of Malhotra Associates. 2. Paid by GDA vide cheque dated 2.7.2001. Rs. 3,36,401 3. Paid by GDA vide cheque dated 6.11.2001. Rs. 1,84,541 Total: Rs. 10,26,758

THE Executing Court taking the calculation made by the respondent (reproduced in the impugned order) held that only a sum of Rs. 3,80,115 remained unpaid towards the interest on the deposited amount and after deducting the income tax and surcharge on the said amount, Rs. 3,36,401 remained to be paid to the decree holder; that the G.D.A. had paid Rs. 1,84,541 in excess to the petitioner under the threat of arrest of the Secretary of the G.D.A. and, accordingly, directed the petitioner to refund the sum of Rs. 1,84,541 paid in excess to him to G.D.A. within a period of one month. The execution petition was disposed of in the above terms.

THE petitioner-decree holder, being aggrieved, filed the present revision petition.

THE Counsel for the parties have been heard at length.

THE reason for the difference between the calculations made by the parties is because of the manner in which the interest has been calculated. Petitioner has calculated the interest on the respective deposited amounts from the date of deposit i.e. from 30th December, 1989 cumulatively whereas the respondent as per its calculation which have been reproduced by the State Commission in its order calculated the interest at simple rate from 22nd September, 2005 and not from the actual date of deposit. The second difference is as to whether the sum of Rs. 1,60,000 paid by the respondent in the year 1995 is to be adjusted towards the principal amount or towards the interest amount. Petitioner has adjusted the sum of Rs. 1,60,000 towards the interest whereas the respondent has adjusted the sum of Rs. 1,60,000 towards the principal amount. Insofar as the sum of Rs. 3,45,816 paid on 17th April, 2000 is concerned the State Commission in its order dated 4th January, 2001 has clearly indicated that it would be adjusted towards the principal amount. The State Commission had made it clear that the interest on the aforesaid amount shall cease with effect from 17th April, 2000 meaning thereby that the sum of Rs. 3,45,816 was to be adjusted towards the principal amount. The State Commission in its order has not stated as to whether the sum of Rs. 1,60,000 is to be adjusted towards the principal amount or towards the interest. In our considered view once the State Commission has adjusted the sum of Rs. 3,45,816 paid on 17th April, 2000 towards the principal amount the sum of Rs. 1,60,000paid by the respondent on various dates way back in the year 1995-1996 (details of which have been given in the foregoing paragraphs) has to be adjusted against the principal amount. The sum of Rs. 1,60,000 had been paid by the respondent before the passing of the decree. This amount, under circumstances, had to be adjusted towards the principal amount.

IN a Court decree the interest awarded by the Court is always taken to be at the simple rate of interest unless indicated to the contrary by the Court that the interest shall be paid at compound rate of interest. The rate of interest, under the circumstances, has to be calculated at simple rate of interest and not at cumulative rate of interest.

PETITIONER had paid a total sum of Rs. 5,17,441 as against which the respondent had made the payment of Rs. 5,05,816 (Rs.3,45,816 + Rs. 1,60,000) towards the principal amount. According to the respondent the respondent was liable to pay interest on the balance amount of Rs. 11,626 only which cannot be accepted. The interest was required to be paid from the respective dates of deposit on the principal amount till the refund of entire principal amount. Petitioner had paid different amounts on different dates between 30th December, 1989 to 20th February, 1993. Respondent was required to be paid interest on the said amount at the rate of 18% p.a. till the payment towards the principal amount. Rs. 1,60,000 were refunded by the petitioner between 22nd September, 1995 to 6th January, 1996 and the remaining sum of Rs. 3,45,816 was paid by the respondent towards the principal amount on 17th April, 2000. The State Commission held that a sum of Rs. 3,80,115 remained unpaid towards the interest on the deposited amount and after deducting the income tax and surcharge on the said amount, Rs. 3,36,401 remained to be paid to the decree holder. The State Commission came to the conclusion that the G.D.A. had paid the sum of Rs. 1,84,541 in excess to the petitioner under the threat of arrest of the Secretary of the G.D.A. We agree with the view taken by the State Commission. As against the sum of Rs. 5,17,441 paid by the petitioner to the respondent, the respondent has made a payment of Rs. 8,35,931 after deducting Rs. 43,714 towards the income tax and surcharge (Rs.3,80,115 - Rs. 43,714=Rs. 3,36,401) which is just and correct. Petitioner has been sufficiently compensated and cannot be allowed to retain the amount paid in excess by the respondent under the threat of arrest. Accordingly, for the reasons stated above we do not find any infirmity in the order passed by the State Commission. Revision petition is dismissed with no order as to costs. Revision Petition dismissed.