PER VINEETA RAI, MEMBER 1. This appeal has been filed by Mohit Bindal, Original Complainant before the State Consumer Disputes Redressal Commission, U.T. Chandigarh (hereinafter referred to as the State Commission) and Appellant herein challenging the order of that Commission which had dismissed his complaint of deficiency in service against Haryana Urban Development Authority (HUDA), Opposite Party before the State Commission and Respondent herein. 2. FACTS : In the complaint filed by the Appellant (through his father since he was a minor), it was stated that he was initially allotted plot no. 279 in Sector-55, measuring 450 square meters at Gurgaon by the Respondent (HUDA) and subsequently this allotment was changed and he was allotted another plot i.e. plot no. 272 in the same sector vide allotment memo no.11154 dated 17.08.1999, of which he is now the owner. Appellant-Complainant had paid the entire amount of Rs.4,81,140/- towards the cost of the aforesaid plot and Rs.9549/- as interest on delayed payment. Later the price of the plot was enhanced by Rs.3,45,993/- vide letter dated 24.09.1997 and Appellant-Complainant deposited a sum of Rs.3,11,393.70 as principal amount and Rs.88,322.40 as interest, thus totaling Rs.3,99,716.10. In this way, he paid total sum of Rs.8,90,403/- i.e. Rs.7,92,533.70 as principal amount and a sum of Rs.97,869.40 as interest. Since Respondent had received the entire amount of payment from the Appellant-Complainant, including interest, and had failed to hand over the possession of the plot for over 8 years because of which Appellant-Complainant could not construct his house and Respondent had probably used this amount for their commercial purpose, Appellant-Complainant filed a complaint before the State Commission on grounds of deficiency in service and requested that the Respondent be directed to (i) immediately deliver the possession of the plot no. 272, Sector-55 at Gurgaon; (ii) pay interest @ 18% per annum from the date of deposit of the amount including interest till the filing of this complaint @ Rs.6,02,087.81 and thereafter to pay interest @ 24% till the date of possession of the plot; and (iii) waive interest of Rs.97,869.40 already paid and adjust the same towards the enhanced cost of the land. Damages on account of harassment and litigation costs were also sought. 3. Respondent on being served filed a written reply contesting the complaint and denied the allegation that the plot was not fully developed. In fact, Appellant-Complainant had taken possession of the plot on 10.10.2001 vide letter dated 3288. The enhanced amount was sought by the Respondent from Appellant-Complainant because a case was filed by the land owners against the Respondent seeking more compensation before the Hon’ble Supreme Court, which is presently pending. It was also stated that the Appellant-Complainant was not entitled to approach the State Commission directly and he should have availed of the arbitration proceedings as provided under the HUDA Act, 1977. 4. The State Commission after hearing the parties and on the basis of evidence produced before it partly allowed the complaint by observing as follows: “12. A perusal of detailed statement of payment annexure-3 and annexure-5 shows that the complainant had paid the original principal amount as well as enhanced amount upto 9.5.2000 i.e. before the delivery of the possession on 10.10.2001. The complainant had also paid Rs.97869.40 as interest. This amount was not recoverable from the complainant in view of clause-6 of the terms and conditions of the allotment letter as possession had not been handed over for a period of more than 9 years. It is true that out of the enhanced amount of Rs.345993/- vide letter dated 24.9.97, complainant had paid Rs.311393.70 and in this way Rs.34599.30 were paid as less but he had paid Rs.97869.40 as interest in excess which he was not liable to pay. Therefore, complainant is entitled to refund of the amount of Rs.63270.40 after deducting a sum of Rs.34599/-.” The State Commission, therefore, disposed of the complaint in the following manner : “Hence, complaint is partly accepted with costs of Rs.10,000/- and respondents are directed to refund the amount of Rs.63,270.40 alongwith interest @ 12% p.a. from the date of deposit till payment. However, if the SLP filed by land owners is dismissed then respondents would be bound to refund excess amount charged to the complainant on account of enhancement of compensation.” 5. Being aggrieved by the order of the State Commission, which had declined Appellant-Complainant’s request to grant 18% interest on the entire amount of Rs.8,90,403/- from the date of deposit till the filing of the complaint and thereafter 24% from the date of the complaint till delivery of possession of the plot as also compensation for the mental agony and harassment, the present first appeal has been filed. 6. Learned Counsel for both parties made oral submissions. 7. Learned Counsel for the Appellant-Complainant contended that the State Commission erred in not granting interest @ 18% and also compensation whereas admittedly there was inordinate delay in handing over possession of the plot even though the Appellant-Complainant had paid the entire amount and interest, including on the enhanced amount. The State Commission ought to have taken note of the fact that no reasons were given for the delay in handing over possession of the plot by the Respondent except for its bald statement that the delay occurred due to development of the land. Under the circumstances, the State Commission should have granted both interest and compensation. In support Counsel for the Appellant-Complainant cited a judgment of the Hon’ble Supreme Court in Bangalore Development Authority Vs. Syndicate Bank [(2007) 6 SCC 741], wherein the Hon’ble Apex Court had ruled as follows : “(d) Though the relationship between Development Authority and an applicant for allotment is that of a seller and buyer, and therefore governed by law of contracts (which does not recognize mental agony and suffering as a head of damages for breach), compensation can be awarded to the consumer under the head of mental agony and suffering, by applying the principle of Administrative Law, where the seller being a statutory authority acts negligently, arbitrarily or capriciously.” Further, in HUDA Vs. Darsh Kumar [(2005) 9 SCC 449] the Hon’ble Supreme Court had ruled as follows : “In this case, considering the very long period during which no possession was given, on an ad hoc basis, we direct that for mental agony/harassment and for increase in costs of construction, compensation at the rate of 12% from the date of deposit till date of possession be awarded.” In the instant case, both the above rulings are very much applicable since there was inordinate and unjustified delay in handing over possession of the plot which resulted in significant increase in the cost of construction, and also a case for compensation by applying the principle of administrative law as ruled by the Hon’ble Supreme Court in Bangalore Development Authority (supra) since the statutory authority here i.e. HUDA had acted negligently, arbitrarily and capriciously in delaying the handing over of possession of the plot despite having received the entire payment for the same. 8. Counsel for the Respondent on the other hand pointed out that there was no breach of any provisions of the agreement or malafide on the part of the Respondent because no time limit was stipulated within which the possession of the allotted plot had to be handed over. While it is a fact that the allotment letter was issued in 1994 and possession of land was handed over in 2001, this delay occurred because of the time taken in the development of the area. Further, Appellant-Complainant did not seek to rescind the contract during this period and also accepted the offer made to take over the possession, after 8 years. Under these circumstances, Appellant-Complainant cannot now claim both interest and compensation for the amount paid to the Respondent. Counsel for the Respondent also cited the judgment in Bangalore Development Authority (supra), wherein the Hon’ble Supreme Court had held that where the delay in delivering possession of the allotted plot is for justifiable reasons, the allottee will not be entitled to interest. In the instant case, the delay was for justifiable reasons i.e. because of the time taken in the development of the area and, therefore, no interest or compensation was warranted. 9. We have heard learned counsel for both parties and have carefully gone through the evidence on record. The undisputed facts are that the Appellant-Complainant was allotted a plot for which he made a payment of Rs.4,81,140/- in December, 1994. Following the change of allotment of his plot and on Respondent’s demand for an enhanced amount, Appellant-Complainant paid the additional amount of Rs.3,45,993/- in the year 1997. These two amounts alongwith interest comes to Rs.8,90,403/- and despite having taken this entire amount, admittedly Respondent did not hand over the plot till October, 2001. Even though no time per se may have been stipulated for handing over the possession of the plot by the Respondent, there is no doubt that a delay of over 8 years in handing over the same after taking the entire money from Appellant-Complainant alongwith interest is totally unreasonable and unjustified. We had specifically asked Counsel for the Respondent if there were any genuine and insurmountable reasons beyond their control for the delay in development of the area e.g. pending litigation etc., to which Counsel for the Respondent confirmed that the delay was only because of the time taken in development in the area and no other reason. This, in our view, is not justified or reasonable explanation for the inordinate delay in handing over possession of the plot to the Appellant-Complainant. It is expected that all development agencies, particularly those which are a part of the Government, would make allotments after developing the area so that possession can be handed over to an allottee within a reasonable period which is usually within 2 years or at the most 3 years. Under the circumstances, we are unable to accept the Respondent’s explanation regarding delay of over 8 years in handing over possession of the plot to Appellant-Complainant and on the other hand directing him to pay not only the cost of the plot, including the enhanced cost, but also interest on the same. Respondent has cited a judgment of the Hon’ble Supreme Court in Bangalore Development Authority (supra) in support of its case, wherein the Hon’ble Apex Court had ruled that an allottee will not be entitled to any interest or compensation if there are justifiable reasons for the inordinate delay in handing over possession of the plot. In the instant case, as stated above, there was no justifiable reason for the inordinate delay in handing over possession of the plot and, therefore, the above ruling of the Hon’ble Apex Court is not applicable in this case and some interest is justified in the instant case. We are, however, of the view that interest @ 18% per annum requested for by Appellant-Complainant is too high and interest @ 9% per annum would be fair and reasonable. Appellant-Complainant is, therefore, entitled to interest @ 9% per annum on the amount of Rs.4,81,140/- paid by him in 1994 upto 10th of October, 2001 when he took over possession of the plot. Regarding the compensation sought by the Appellant-Complainant, since the plot has been given to him at the old rates and interest has also been awarded for late delivery of the plot, no separate compensation as requested is warranted. 10. To sum up, the present first appeal is partly allowed and the order of the State Commission is modified to the extent that Respondent is directed to pay interest @ 9% per annum on the sum of Rs.4,81,140/- deposited by the Appellant-Complainant in respect of the plot allotted to him on 1st of December, 1994 till 10th of October, 2001 when Appellant-Complainant was handed over the possession of the plot by the Respondent. Rest of the order of the State Commission is upheld pertaining to the refund of Rs.63270/- with interest @ 12% per annum from the date of deposit till payment as also litigation costs of Rs.10,000. Further, if the SLP filed by the land owners is dismissed by the Hon’ble Supreme Court, then the Respondent would be bound to refund the excess amount charged to the Appellant-Complainant on account of enhancement of compensation. 11. The present first appeal stands disposed of on the above terms. |
