USHA KHAIR vs H.P. Housing Board

THIS appeal is against the order of the learned District Forum, Shimla, dated 15.10.2001, whereby the complaint of the appellant has been dismissed.

WE have heard the learned Counsel for the parties and we have examined the record. The learned Forum below denied relief to the appellant on two grounds, namely, that though the cause of action arose on taking possession of the flat in question on 10.4.1997, but the complaint was filed only on 31.7.2000 i.e., more than three years after the accrual of cause of action, and secondly that the possession of the flat in question was taken by the appellant without any protest. Hence, she was not entitled to any interest on account of delayed delivery of possession so as to take the benefit of the law laid down by this Commission in the two decisions referred to in para-4 of the impugned order. On perusing the record, however, we find that as regards the first objection of alleged delay on her part, it is specifically averred in para-13 of the complaint that the appellant had been ill and had to remain under constant check up on account of kidney trouble and she also had to undergo various types of investigations. In support of this averment, Annexure C-IX, has been filed along with the complaint which is in the shape of photo copy from the General Hospital, Sector 16, Chandigarh as well as the diagnosis record of various private medical practitioners of that place. It appears from these documents that she was under investigation being advised by the P.G.I., Chandigarh. To this cogent explanation furnished in para-13 of the complaint itself, the reply of the respondent-Housing Board is merely of a plain denial, which would not have the effect of specifically controverting the reasons stated by her for not approaching the learned Forum below earlier than she did. Therefore, we are satisfied that there was no delay in filing the complaint by her before the learned Forum below.

As far as the second aspect of having taken possession of the flat in question without protest is concerned, that finding is also contrary to the record. In the impugned order, notice has been taken of Annexure C-VII and the contents of the same have been brushed aside by merely stating that all that is mentioned therein is that she took possession of the flat in question under compelling circumstances. The learned Forum below was seriously remiss in not considering the contents of that document as a whole and instead only referring to the expression ''compelling circumstances. It has been specifically stated in Annexure C-VII, being the letter from the complainant/appellant to the respondent which is dated 10.4.1997 that she took possession of the flat in question on that date under compelling circumstances because of the threats of the respondent. It is further stated that the objection raised/pointed out by her in her letter dated 8.5.1995 (registered) as regards the poor construction work of the flat have not been removed as the said defects are still continuing. In our considered view, this document, Annexure C-VII when read as a whole, clearly shows that the appellant was compelled to take possession of the flat under duress, which would have the same effect as taking possession under protest. Therefore, the second ground in the impugned order is also untenable. For the reasons recorded above, we allow this appeal, set aside the impugned order and direct the respondent-Housing Board to pay interest to the appellant on the deposited amount @ 12% per annum from the agreed date of delivery of possession of the flat to her till the actual date of delivery i.e., 10.4.1997, after excluding a period of one year from the agreed date as being period of grace. The appeal is disposed of accordingly. Appeal allowed.