Haryana

StateCommission

A/42/2014

HUDA - Complainant(s)

Versus

Nand Kishore Saini - Opp.Party(s)

Ajay Nara

24 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA

 

  First Appeal No.42  of 2014

 Date of Institution:03/17.01.2014

  Date  of  Decision:24.08.2016

 

Haryana Urban Development Authority, Rewari through Estate Officer in the office of HUDA Sector-1, Rewari, Haryana.

…..Appellant

Versus

 

Nand Kishore Saini S/o Sh.Prem  Prakash Saini, C/o M/s Tej Agencies, Moti Chowk, Rewari.

…..Respondent

 

CORAM:             Mr.R.K.Bishnoi, Judicial  Member

                              Mrs.Urvashi Agnihotri, Member

                   

Present:-    Mr. R.C.Gupta proxy counsel for Ajay Nara, Advocate counsel for the appellant.

                   Mrs. Varsha Gehlawat proxy counsel for Mr.Anil Gehlawat, Advocate counsel for the respondent.

 

                                                 ORDER

R.K.BISHNOI, JUDICIAL MEMBER:

           

It was alleged by complainant that  plot No.109 was allotted in the name of his father and his brother vide allotment letter dated 16.10.1989, copy of  which is EX.C-2 and lateron their father’s share came to him.  Previously his brother filed complaint Nop.303 of 1993 about this plot before the District Consumer Disputes Redressal Forum, Rewari (In short “district Forum”) which  was decided on 13.03.1998 and that order was upheld by State Commission vide order dated 11.08.1999 and thereafter his brother asked the concerned officials of opposite party  (O.P.) time and again to  inform about the  amount due but no information was given. It was told that the original file was misplaced and that is why amount could not be calculated.  On 17.11.2008 he sent letter to O.P. alongwith pay order No.612403 dated 14.11.2008 of Rs.Five lacs to accept the same subject to the condition of calculation lateron.  Vide letter No.5736 dated 24.08.2009 O.P. asked to pay Rs.10,720/- which was due, he deposited that amount on 01.09.2009 under protest because O.P. charged Rs.3,74,337/- in excess. Extension fee was also charged illegally from him. So the O.P. be directed to refund Rs.3,74,337/- alongwith interest @ 18% per annum from 01.09.2009 and extension fee etc. besides compensation qua mental harassment etc.

2.      In reply thereof it was alleged by O.P.-appellant that complainant was not having any objection at the time of payment of  remaining amount on 01.01.2009 which was clear from his affidavit. In the previous litigation complainant was directed to deposit the amount within three months therefrom, but, the same was not deposited.  Complainant or his brother never made any request about supplying the statement of account vide letter No.164 dated 27.01.2010 complainant was asked to take possession, but, he did not turn-up.  He deposited amount without any protest and was not having any right to ask about refund etc.  Offer of possession was made to allottees on 03.02.1994 but they never submitted any plan etc. for raising construction.  Other objections about limitation, maintainability of complaint, jurisdiction, etc. were also raised and requested to dismiss the complaint.

3.      After hearing both the parties, learned District Forum allowed the complaint and directed as under:-

“In view of the above discussion and for the foregoing reasons,  we are of the considered view that the present complaint deserves merit and as such the same is allowed directing the opposite party to refund the excess amount charged from him i.e. Rs.3,74,337/- with interest @ 18% p.a. from the date of deposit till refund.”

4.      Feeling aggrieved therefrom, appellant-O.P. has preferred this appeal. 

5.      Arguments heard. File perused.

6.      Learned counsel for the appellant vehemently argued that vide order dated 17.03.1998 District Forum directed complainants to deposit remaining amount within one month from the preparation of the copy, but , he never came forward to make payment. As per order dated 17.03.1998 he is liable to pay the interest @ 18% per annum on the remaining amount. From the calculation sheets Ex.R-2 and R-3 it is clear that he did not make any payment after the initial payment.  So vide letter dated 27.01.2010 he was righty asked to deposit Rs.Ten lacs. Even otherwise from the perusal of letter Ex.R-4 dated 01.01.2009 and Affidavit Ex.R-5 dated 01.01.2009 it is clear that complainant was ready to deposit the amount without any objection. So it cannot be alleged that any excessive amount was recovered from him, so impugned order dated 22.11.2013 be set aside.

7.      On the other hand learned counsel for the respondent/complainant argued that after order dated 11.08.1999 passed by State Commission O.P. was asked time and again to inform about the balance amount so that payment can be made.  This fact is clear from the perusal of copies of letters Ex.C-9 to Ex.C-12, Ex.C-14, C-15, C-17, C-18, C-19, C-21 and Ex.C-22, but, O.P. never informed about the balance amount because the file was not traceable, which is clear from the perusal of letters Ex.C-13 dated 27.10.2005, C-16 dated 19.01.2007, C-20 dated 29.01.2008, C-23 dated 06.10.2008 about registration of FIR about loss of file. Ex.C-27 dated 07.01.2009 showing preparation of duplicate file. Learned District Forum rightly came to conclusion that O.P has charged Rs.3,74,337/- in excess, so appeal be dismissed. 

8.      However it cannot be disputed by the appellant that the file was not traceable and was misplaced. From the perusal of letter EX.C-27, it is clear that file was re-constructed.  So it cannot be alleged by O.P.-appellant that complainant was informed about the remaining amount much before letter dated 27.01.2010. Any-how from the perusal of the calculation sheets Ex.R-2 and EX.R-3 it is clear that O.P. was calculating interest on the remaining installments from the date it was due, whereas according to condition No.5 of the allotment letter Ex.C-2 the interest was to be calculated from the date of offer of possession.  As per order dated 17.03.1998, copy of which is Ex.C-6, offer of possession was made on 03.02.1994.  It means that the interest on the remaining amount was to be calculated from that date and not from the previous date. Interest @ 18% can be charged keeping in view the order dated 17.03.1998 but from the date of offer of possession i.e. 03.02.1994.  it is not mentioned in order dated 17.03.1998 that O.P. is entitled to recover the interest @ 18% even before the date of offer of possession. It was only ordered that the complainant should deposit the amount  within one month from the preparation of the copy of this order. As already mentioned above, O.P. failed to tell the amount due on behalf of complainant.   Learned District forum has not mentioned in the impugned order dated 22.11.2013 that how the calculation is wrong.  So impugned order dated 22.11.2013 is set aside, the matter is remitted back to the District forum to decide the question of actual amount payable by the complainant in view of the order dated 01.03.1998.  The parties can be asked to submit fresh calculation in view of the aforesaid calculation.

9.      Parties are directed to appear before the District Forum, Rewari on 04.10.2016.

 

August 24th, 2016       Urvashi Agnihotri                                R.K.Bishnoi,                                                               Member                                              Judicial Member                                                         Addl. Bench                                        Addl.Bench                

S.K.