KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUANANTHAPURAM APPEAL NO.178/2008 JUDGMENT DATED 28/5/2010 PRESENT SMT.VALSALA SARANGADHARAN -- MEMBER SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER The Secretary, Kerala State Housing Board. -- APPELLANT (By Adv.Indira Raveendran) Vs. Anirudha Sarma, S/0 Aiyya Vaidyar, Thirumala Vadakke Madom, -- RESPONDENT House no.110, T.d.Nagar, Cutchery P.O, Kollam. JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER The appellant was the opposite party and respondent was the complainant in CC.401/04 on the file of CDRF, Kollam. The complaint therein was filed claiming interest at the rate of 18% on the excess amount of Rs.1,37,628 and also the failure on the part of the opposite party in limiting the interest at the rate of 3.5% per annum from 7.10.93 to 7.10.2003. The complainant had also claimed compensation of Rs.5000/- and cost of the proceedings. The opposite party filed written version denying the alleged deficiency in service. It was contended that there was no provision in the agreement entered into between the complainant and the opposite party to pay interest on the excess amount collected and that interest at the rate of 3.5% was granted by the opposite party as gesture of goodwill. Thus, the opposite party prayed for dismissal of the complaint. Before the Forum below, the complainant was examined as PW1 and a witness on the side of the opposite party as DW1. Exts.P1 to P12 and D1 to D11 documents were also marked on the side of the parties to the complaint. On the basis of the evidence on record, the Forum below passed the impugned order directing the opposite party to pay the complainant interest at the rate of 9% per annum on the excess amount of Rs. 1,37,628 /- which was collected by the opposite party from the complainant. The aforesaid interest was allowed for the period from 7.10.93 to 7.10.03 with cost of Rs.2000/-. Aggrieved by the said order dated 7.6.08 passed by the Forum below in CC.401/04, the present appeal is preferred. There is no dispute that the appellant/opposite party collected excess amount of Rs.1,37,628 /- from the respondent/complainant. The aforesaid amount was collected on 7.10.93 and that the said amount was refunded to the complainant only after 7.10.2003. It is also admitted that appellant/opposite party collected interest at the rate of 12.5% from the complainant for the amount due to the appellant/opposite party. It is also an admitted fact that the appellant/opposite party had also collected penal interest at the rate of 18% per annum from the complainant for the delayed payment of the land value of Rs.36,330/-. The collection of interest and penal interest at the rate of 18% per annum is admitted by the appellant/opposite party. If that be so, the appellant/opposite party is also liable to pay interest on the amount which the appellant had collected as excess amount. The claim of the respondent/complainant for interest on the excess amount of Rs. 1,37,628 /- can be justified. The respondent/complainant was directed to remit Rs.2,12,336/- to get the sale deed executed in his favour. The facts, circumstances and evidence on record would show that the appellant/opposite party directed the respondent/complainant to remit the said sum of Rs.2,12,336/- and that the complainant/consumer had no other go but to remit the said amount to get the sale deed executed in his favour. Thus, the aforesaid sum of Rs. 2,12,336/- was collected from the complainant towards the tentative land value including additional 30% of the same. The appellant/opposite party admitted the fact that a sum of Rs.1,37,628/- was collected by way of excess amount and thereby the appellant/opposite party refunded the said amount. It is to be noted that at the first instance, the appellant had only refunded the excess amount without any interest. Thereafter, the respondent/complainant moved the opposite party claiming interest on the excess amount. It is only then, the appellant/opposite party paid interest at the rate of 3.5% on the excess amount of Rs.1,37,628/-. The payment of 3.5% interest on the excess amount would make it clear that the appellant/opposite party was liable to pay interest on the excess amount. There can be no doubt about the fact that interest at the rate of 3.5% paid by the appellant cannot be treated as reasonable rate of interest. It has already been noticed that the appellant Kerala State Housing Board had been collecting interest at the rate of 15% and penal interest at the rate of 18% from the respondent/complainant. In such a situation, the appellant/opposite party is also liable to pay interest at the very same rate on the excess amount collected. The mere fact that there was no provision in the agreement to pay interest on the additional land value of 30% cannot be taken as a ground to disallow the reasonable claim for interest on the excess amount collected from the complainant. It is to be borne in mind that the appellant/opposite party has been lending money and levying interest on the same. Thereby, the appellant has been enjoying the excess amount of Rs.1,37,628/- for a period of more than 10 years. So, the Forum below has only passed a just and proper order directing the appellant/opposite party to pay interest at the rate of 9% per annum on the said sum of Rs.1,37,628/. Thus, in all respects, the direction given by the Forum below to pay interest at the rate of 9% per annum on the excess amount can only be upheld. The appellant/opposite party collected the tentative land value and additional 30% of the tentative land value amounting to Rs.2,12,336/- from the complainant. The aforesaid amount was collected on 7.10.93. The aforesaid amount was collected on the ground that land acquisition reference (LAR) case was pending. But, it is come out in evidence that the land acquisition cases had been disposed of in the year 1992 itself. P3 letter dated 26.9.92 would give such an indication. Exts.D3 (a) and (b) letters issued by the complainant would also give an indication regarding the disposal of the LAR cases. Ext.D6 letter issued by the appellant/opposite party to the complainant would give details of the LAR payments effected by the appellant/opposite party. It is stated that land value at the rate of Rs.486/M has been fixed. This would give an indication that the excess amount was collected by the opposite party, Kerala State Housing Board without any justification. It is pertinent to note that the appellant/opposite party has not produced the decree passed in the LAR case. The Kerala State Housing Board (opposite party) was reluctant in disclosing the details of the decree passed in the LAR case and the date of the aforesaid decree passed in the land acquisition case. This would make it clear that the appellant/opposite party Kerala State Housing Board was un-necessarily retaining excess amount of Rs.1,37,628/-. The aforesaid action on the part of the appellant/opposite party in retaining such an amount without any valid reason would amount to deficiency in service. The Forum below has only directed the appellant/opposite party Kerals State Housing Board to pay a very reasonable interest at the rate of 9% per annum on the excess amount of Rs.1,37,628/- which was retained by the appellant/opposite party without any valid reason. It is also to be noted that the said excess amount was enjoyed by the Kerals State Housing Board for a long period of more than 10 years. So, the Forum below is perfectly justified in ordering payment of interest on the said amount from 7.10.93 to 7.10.03 with cost of Rs.2000/-. We do not find any legally sustainable ground to interfere with the impugned order passed by the Forum below. Therefore, the present appeal lacks bonafide and the same is liable to be dismissed. In the result, the appeal is dismissed. The impugned order dated 7.6.08 passed by CDRF, Kollam in C.401/04 is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. M.V.VISWANATHAN -- JUDICIAL MEMBER VALSALA SARANGADHARAN -- MEMBER s/L |
