SOM NATH VERMA vs MUNICIPAL COUNCIL KURALI

MUNICIPAL Council Kurali respondents had advertised the sale of plots. The appellant applied for one of the plots. An open auction was held and the appellant had purchased Plot No. 6 measuring 16'' x 50'' situated in Ward No. 5, Kurali from the respondents for an amount of Rs. 2,07,000 on 24.9.1999. 10% of the auction money was deposited at the time of auction and to make up the amount of 25% remaining amount was deposited on 16.11.1999. It was further pleaded that as per the assurance given by the respondents the adjoining plots were to have grassy parks and fountains but the respondents failed to develop that area. Rather, there was a toba (stagnant water) near the plot of the appellant. The respondents had sent letters dated 22.9.1999 and 11.4.2000 asking the appellant to deposit the balance sale price of the plot. Hence the appellant filed the complaint in the learned District Consumer Disputes Redressal Forum, Ropar (in short "District Forum") to challenge this demand notice and also prayed for compensation and costs.

THE respondents filed the written statement. Preliminary objections were pleaded and the case was also contested on merits. It was pleaded that the appellant had failed to make the payment of instalments as per the terms and conditions of the agreement executed between the parties. He had failed to make the payment of instalments even after the repeated demands. It was admitted that the appellant had participated in the public auction held on 24.9.1999 and had purchased plot No. 6 in the open auction for an amount of Rs. 2,07,000. Conditions regarding public auction were explained and read over to the parties before the auction was held on 24.9.1999. THEse were accepted by the intended purchasers including the appellant and were signed by them. THE appellant had failed to deposit the amount of Rs. 52,450 within a period of one month from the date of auction as per the terms and conditions of the auction. Accordingly notice dated 22.10.1999 was issued to the appellant calling up to deposit an amount of Rs. 52,450. It was received by the appellant on 25.10.1999 but without any affect. THEreafter letter dated 11.4.2000 was issued to the appellant asking him to deposit the outstanding amount against him upto 24.4.2000 along with interest but the appellant had refused to accept this letter. An agreement was duly executed by the appellant in favour of the respondents on 12.6.2000 and as per the terms and conditions of the auction and of the agreement the payment of due amount was to be made by the appellant with interest in instalments. Another notice dated 20.1.2003 demanding an amount of Rs. 2,11,508 (Rs. 1,34,550 as principal and Rs. 76,958 as interest) was issued to the appellant but he failed to deposit the same. It was denied if any toba (stagnant water) was there near the plot of the appellant or if any assurance was given to the appellant to develop this area into grassy parks. Hence dismissal of the complaint was prayed. The appellant filed his affidavit as Ex. C-1 and also proved documents Ex. C-2 to Ex. C-39. On the other hand, the respondents tendered in evidence affidavit of the Executive Officer Varinder Kumar Jain as Ex. R-1 in the form of reply followed by supplementary affidavit Ex. R-2 and documents Ex. R-3 to Ex. R-15.

On the basis of these pleadings and these documents learned District Forum vide impugned order dated 1.8.2003 dismissed the complaint.

HENCE the appeal. The factual position is admitted to the extent that the appellant had not made the payment of instalments in time as per the terms and conditions of the auction and of the agreement dated 12.6.2000. It is also laid down in the agreement that if any instalment was not paid in time then the appellant was liable to pay the instalments along with interest, etc.

SUBMISSION of the learned Counsel for the appellant was that there was stagnant water (toba) near the plot in dispute which area could not be developed by the respondents as per the assurance given by them at the time of auction. It was also submitted that by now the appellant had deposited all the necessary instalments and, therefore, the complaint be accepted. This submission has been considered. If the area is not developed by the respondents or if any assurances were given by them to do so or if they were liable to do so then the right of appellant was a separate right to claim damages from the respondents but he had no right to commit default in making the payment of instalments. By not making the payment of instalments in time he had clearly violated the terms and conditions of the auction and of the agreement and had become liable to pay interest and/or penalty on the outstanding instalments as per the terms and conditions of the auction and the agreement. The law has been settled by the Hon''ble Supreme Court that a person who himself fails to abide by the terms and conditions of the agreement or of the terms and conditions of the auction he has no right to allege that he is not liable to make the payment of interest when the terms and conditions make him laible to do so in case of failure to make the payment of instalments as per schedule. In a similar case the Hon''ble Supreme Court was pleased to hold in the judgment reported as Bangalore Development Authority v. Syndicate Bank, II (2007) CPJ 17 (SC)=I (2008) SLT 761, that where the consumer has himself committed default in making the payment of instalments he has no right to find fault with the development authority for the delay caused in completing the construction of HIG flats. On the same principle of law the appellant has no right to withhold the payment of instalments allegedly for the reasons that the respondents had failed to develop the area. If he was to make the payment of instalments in time he was to do so and in his failure to do so it clearly impose the liability on him to make the payment of instalments with interest/penalty, etc. He has no right to disclaim his liability for the payment of interest. Therefore, there is no deficiency in service on the part of the respondents in claiming the payment of instalments with interest/penalty in accordance with the terms and conditions of the auction and of the agreement.

LEARNED District Forum has reached the correct conclusion vide impugned order dated 1.8.2003.

THERE is no merit in the present appeal and the same is dismissed with costs of Rs. 2,000. The appeal could not be decided within the statutory period because of heavy pendency and non-availability of the requisite Benches and infrastructure in the State Commission, for which the State Government has already been requested. Appeal dismissed.