RAVINDER SHARMA vs U.P.AVAS EVAM VIKAS PARISHAD

THIS is an appeal against the order of the State Commission, U.P., in Case No. 107/S.C./90, whereby some reliefs have been granted to the Complainant but not being satisfied with the same, the complainant has come in appeal before this Commission.

THE facts of the case as found by the State Commission are that the Complainant had booked premises for a shop with the Opposite Party, at Neelgiri Complex in Indranagar under the self-financing scheme. On 30.12.88 he deposited Rs. 32,000/- by which registration and allotment of shop No. G-36 was made on the same day. The balance cost of Rs. 95,840/- was to be paid by him in six instalments, and he was assured through publications that on making the full payment possession will be given to the allottee by 30.6.89. The complainant/appellant further states that there was some delay on his part in paying the balance amount, for which the opposite party realised Rs. 1,342/- as interest from him. Thus in total he has paid Rs. 1,27,840/- plus Rs. 1,342/-by way of interest. But he was not given possession and so notice under Section 80 C.P.C. was given to the opposite party on 14.10.89 but they failed to take any action. He then filed a complaint with the State Commission under Consumer Protection Act, 1986, to which the opposite party responded.

THE opposite party/respondent have averred that no enhancement in cost will be made if delay occurs in giving possession of the shop after 30.6.89. But if there is delay in payment by the allottee then interest at the rate of 18% per annum on the balance amount will be payable.

THE State Commission came to the conclusion on 15.1.92 that full payment had been made by the complainant but the possession of the shop had not been given. Thus it directed the U.P. Avas Evam Vikas Parishad to give possession of shop No. G-36 latest by 31.3.92 failing which the Parishad will have to pay Rs. 2,000/-per month or part thereof as damages during the period from 1.4.92 up to the date of giving actual possession. The State Commission also ordered a sum of Rs. 2,500/- to be paid in lump-sum by the respondent to the complainant. The complainant/appellant is not satisfied with the above relief as he demands compound interest at the rate of 18% per annum on the amount deposited i.e., Rs. 1,27,840/-by him, for delay in giving possession, from 30.6.89.

ALSO compensation for mental and physical agony amounting to Rs. 50,000/- and loss of earning from 30.6.89 amounting to approximately Rs. 3,000/- per month till date of possession has been prayed for. In addition he has asked for costs.

THE respondents in their written submission have stated that 30.6.89 was only the expected date of delivery of possession and that there was no firm promise or contract as such pertaining to the same. They have also stated that necessary instructions to the concerned officers have been issued from the Head Quarters of the respondent for handing over the possession of the shop to the appellant and the latter may contact the abovementioned and take possession after completing the necessary formalities. The respondents maintain that the State Commission committed an error by awarding Rs. 2,500/- to be paid in lump sum to the appellant/complainant and without any data or material available on record about the quantum of damages or losses alleged to have been caused to the appellant the award of Rs. 2,000/- per month from 1.4.92 onwards, is arbitrary. But they have not come in appeal on these grounds.

ONGOING through the records and written submissions, and after hearing both sides this Commission is of the view that the State Commission''s order will have to be modified invoking also our revisional power. As argued by the respondent there is no basis to show why Rs. 2,000/- per month from 1.4.92 till possession be allowed and also there is no reason given for Rs. 2,500/- to be paid as lump sum. After hearing both sides we are of the opinion that the proper order to be passed is to direct the respondent herein to pay to the complainant 18% interest on the amount deposited after allowing a reasonable period i.e. about 2 years from the date of payment for possession of shop to be given. The respondents have argued that the mentioned date of delivery was only an expected one and not a promised one; and therefore they are not liable to pay anything for any delay. Yet the fact is that the allottee''s money lies with them and it is only fair to direct him to pay interest at the same rate that they charge for delayed payment. They have also argued that as construction gets delayed the cost escalates too, for which they do not charge anything extra from the allottee. No other relief or compensation is due to the complainant.

THUS in super cession of the order impugned we order that the Respondent shall pay to the complainant/appellant interest at the rate of 18% on Rs. 95,840/- from 7.9.91 {i.e. 2 years after full payment was made) till possession is/ was given. No other relief is allowed to the complainant. There shall be no order as to costs. The appeal will stand disposed of as above. ORDER Mr. Y. Krishan, Member "the facts of the case are narrated in the order above. It relates to the sale of a shop premises under the self-financing scheme by the respondent U.P. Avas Evam Vikas Parishad to the appellant/complainant. As the complaint before the State Commission pertains to immovable property of commercial character, i.e. a shop, in my opinion, this could not be the subject matter of a complaint before the Consumer Forums in the light of what I had stated in Shri Tek Chand Jain v. Raj Kumar (Revision Petition No. 95 of 1992). I may add that be amending Sec. 2(o) of Consumer Protection Act, to specifically include ''Housing Construction'' as a kind of service, "non-housing construction" such as commercial buildings are by implication excluded from the definition of service". Inconsequence, the complaint before the State Commission as well as this appeal are dismissed. There is no order as to cost.