DR. S. M. KANTIKAR, MEMBER

1.       This first appeal has been filed under Section 19 of the Consumer Protection Act, 1986 against the order dated 26.3.2015 passed in complaint case No. 25 of 2007 by U. P. State Consumer Disputes Redressal Commission, Lucknow  (in short, ‘the State Commission’) whereby the State Commission dismissed the complaint.

2.       The brief facts relevant for the disposal of the appeal are, that in response to the advertisement issued by OP in 2005 for the sale of plots by auction, the complainants applied for a plot with a condition precedent to deposit Rs. 11 lakh, as registration fees.  The complainants were successful bidders and a plot was allotted to them vide letter dated 20.8.2005.  They were informed that remaining ¾ of the premium was to be paid in four quarterly installments alongwith 15% interest.  The complainants made total payment of Rs. 1,53,62,528/-.  Before handing over the possession of the plot due to temporary injunction from Civil Court, Kanpur, the OP cancelled the orders of allotments.   The complainants thereafter filed Writ Petition No. 27893 of 2006 before Allahabad High Court wherein the High Court by order dated 23.5.2006 directed the OP/authority to decide the refund application filed by complainants.    Accordingly, the OP refunded their entire deposited amount of Rs.1,53,62,528/- vide cheque dated 28.10.2006 as per rules but no interest on the deposited amount was paid.  Being aggrieved by the non-payment of interest, the appellants/complainants filed a consumer complaint before Uttar Pradesh State Commission, Lucknow and claimed Rs.32,49,174/- as interest amount which accrued on the principal amount alongwith Rs.10 lakhs as damages and Rs.25,000/- as cost of litigation.

3.       In the initial round of litigation, after admission of the complaint, the OP was served on 21.12.2006 but no one appeared on behalf of OP.  Therefore, the State Commission proceeded ex parte and allowed the complaint vide order date 14.10.2011.  The same order was challenged by the OP before this Commission (NCDRC) through appeal No. 42 of 2012.  It was dismissed.  Being aggrieved, the OP approached Hon’ble Supreme Court by way of an appeal and vide order dated 24.8.2012, the Hon’ble Supreme Court remanded back the matter to this Commission to decide the matter on merits and also about the issue whether the OP was served by State Commission or not.   On 10.09.2014, this Commission (NCDRC) remanded back the matter to the State Commission for fresh adjudication.

4.       Thereafter, the OPs filed written statement and took preliminary objections that the auction purchasers are not consumers, which has already been settled by various decisions of NCDRC.  Therefore, the complainants were not consumers. The OPs submitted that before giving possession of the plot to the complainant, the Civil Court of Kanpur issued temporary injunction for the sale of plot in question.  It was immediately conveyed by the OP to the auction purchasers/complainants.  Therefore, on the same ground, the orders of allotment were cancelled by the OP/authority.  In compliance of the order dated 23.5.2006 of Hon’ble High Court, the OP refunded the entire deposit amount of Rs.1,53,62,528/- on 28.10.2006, as per their rules. 

5.  The State Commission vide its impugned order on 26.3.2015 dismissed the complaint.  Hence, aggrieved by the said impugned order, the complainant filed this instant appeal. 

6.       We have heard the learned counsel for the parties.  Learned counsel for the appellants/complainants submitted that complainants’ huge money was lying with OPs for 423 days, which the OPs have utilized for their purpose.  Thus, the complainants deserve to get interest on the said amount, which was deposited by the complainants.  As the OP/authority was aware that the delivery of possession of the plot was not possible, under such circumstances, the OP would have refunded the deposited amount immediately.

7.       Learned counsel for the complainants further submitted that the complainants are consumers.  In support his contention, he relied upon the authorities of Kunj Bihari Lal vs. Urban Improvement  Company Pvt. Ltd. 2014 (1) CPR 557 (NC), Rajil Khood vs. Haryana Urban Development Authority 2011 (4) CPR 526 (NC), Kopusetti Bhanu Prasad vs. ICICI Bank and Ors. IV (2009) CPJ 83 and U.T. Chandigarh Administration & Anr. vs. Amarjeet Singh & Ors. II (2009) 1 (SC).

8.       The OP also relied upon the same authority of Hon’ble Supreme Court  i.e. U.T. Chandigarh Administration & Anr. vs. Amarjeet Singh & Ors. II (2009) 1 (SC) about the auction purchaser not being a consumer. 

9.       In the instant case, the complainants’ main grievance against the OP is about unfair trade practice and deficiency in service in keeping the huge amount for 423 days and refunding it without interest.  In our view, the complainants are consumers of KDA/OP.  It is an admitted fact that the auction process never concluded due to the faults of KDA/OP.  Therefore, both the parties cannot put reliance upon the same judgment of Hon’ble Supreme Court in U.T. Chandigarh Administration (supra).

10.     After our thoughtful consideration, it is an admitted fact that the complainant deposited auction sale consideration of Rs.1,53,62,528/-.  The same amount was refunded by the OP/Development authority on 28.10.2006, i.e. after 423 days (more than a tear)   without paying any interest. It is pertinent to note that   the KDA/OP had knowledge   that due to temporary injunction, the KDA was not in position to give possession of plot in question. Instead of making immediate refund of complainants huge amount, the KDA kept the matter lingering. Due to such bizarre   conduct of OP, the complainants were compelled to approach the Hon’ble High Court through writ petition, which   vide order dated 23.05.2006 directed the KDA to decide the refund application within three months, but thereafter KDA took almost 5 months.  Thus overall  it was deficiency in service from the KDA who retained the complainants’ huge amount for more that 423 days and refunded the same to the complainants without interest.

11.     It is common parlance that, in the builder- buyer  agreements  the terms are framed as favorable and suitable  to the builders/ service providers.   In our view, these are unconscionable contracts. The builder exercise his  right to charge penalty or interest at 18-24% on the delayed payment of installments. Thus,  in our view, in the interest of natural justice the consumers at large deserve to receive same interest  from  opposite parties in cases of fault or deficiency.  

12.     In the instant case, the complainants have  accepted the refund of principal amount under protest because interest was neither paid nor offered at the time of refund.   It is pertinent to note that   the KDA vide its office order dated 31.10.1992, has determined that in the matter of allotment of any home or plot, if any dispute arises and it does not remain possible to complete the registration proceedings or to handover the possession in lieu thereof, an alternate house or plot shall not be offered and the amount deposited by the allottee shall be returned back to him along with the interest as per the rate of post office saving account.

13.     Therefore,   the KDA relying upon the office order (supra) should have returned the amount to the complainants with the interest as per postal savings account. Therefore, the complainants are entitled for the  interest as per the rate of post office saving account on their deposit of  total amount of Rs.1,53,62,528/-. In our view, the simple interest @ 5% will be just and proper in the instant case, which on calculation it will be  Rs.8,91,880/- the amount the OP is liable to pay on the date, refund was given.

14.     On the basis of foregoing discussion, set aside the impugned order passed by State Commission and allow the first appeal with the direction that the OP shall   a sum of Rs.8,91,880/- to the complainants alonwith further interest @ 6% per annum from the date of filing of this complaint, within   eight weeks from the date of receipt of a copy of this order, failing which the entire decretal amount will carry interest @ 9% per annum till  its realization.

However, there shall be no order as to cost.