Delhi

StateCommission

A/09/623

HARYANA S.I. AND I. D. CORPORATION LTD. - Complainant(s)

Versus

P.D.GUPTA - Opp.Party(s)

10 Feb 2016

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision:10.02.2016

1. First Appeal No. 699/2009

 

(Arising out of the order dated 14.07.2009 passed in Complaint Case No. 280/2004 by the District Consumer Redressal Forum-VI, Barracks Kasturba Gandhi Marg, New Delhi)

 

In the matter of:

 

Sh. P.D.Gupta

27/1, 2^nd Floor, Nangia Park

Shakti Nagar

Delhi-110007                                                    …..........Appellant

 

Versus

Haryana State Industrial Development Corpn. Ltd.

E-8, Baba Kharak Singh Marg

New Delhi-110001                                                          ….....Respondent

                                                                

2. First Appeal No. 623/2009

 

(Arising out of the order dated 14.07.2009 passed in Complaint Case No. 280/2004 by the District Consumer Redressal Forum-VI, Barracks Kasturba Gandhi Marg, New Delhi)

 

In the matter of:

 

Haryana State Industrial Development Corpn. Ltd.

Growth Centre

Bawal                                                                     …..........Appellant

 

Versus

Sh. P.D.Gupta

S/o Sh. A.S.Aggarwal

27/1, Second Floor

Nangia Park

Shakti Nagar

Delhi-110007                                                        ……...Respondent

CORAM

N P Kaushik        -        Presiding Member

S C Jain                -        Member

1.     Whether reporters of local newspaper be allowed to see the judgment?           Yes

2.      To be referred to the reporter or not?                                                          Yes

N P Kaushik, Member (Judicial)

JUDGMENT

1.      This order shall dispose of First Appeals Nos. 699/2009 and 623/2009. Both the appeals are directed against the orders dated 14.07.2009 passed by the Ld. District Forum-VI, New Delhi. A complaint was filed by Sh. P.D.Gupta against Haryana State Industrial Development Corp. Ltd. First Appeal No. 623/2009 has been filed by the Haryana State Industrial and Infrastructure Development Ltd. and a counter appeal bearing No. 699/2009 has been filed by Sh. P.D.Gupta. Parties shall hereinafter be referred to as the ‘complainant’ and ‘opposite party’ (OP) as per their status in the complaint (Complaint Case No. 280/2004 District Forum-VI, New Delhi).
2.      Complainant Sh. P.D.Gupta after coming across an advertisement in the daily Hindustan Times dated 28.02.2002 purchased a brochure relating to the sale of plots at Manesar and Bawal by the OP as per the scheme of allotment. Rate of plots at Bawal was Rs. 720/- per sq. meter. Applicants were required to submit 10% of the tentative price of the plot by way of a bank draft alongwith application form. 15% of the price was to be paid within thirty days of the date of allotment. Balance 75% was to be paid in lump sum or in six half yearly instalments. Scheme remained open for the period from 28.02.2002 to 28.03.2002. Allotment was to be made by way of draw of lots.
3.      Complainant Sh. P.D.Gupta submitted his application bearing No. 4460 for allotment of plot measuring 450 sq. meters at Bawal. He submitted bank draft of Rs. 32,400/- towards 10% of the tentative price of the plot while submitting his application. Draw of lots was held by the office of the OP at Punchkula on 30.05.2002. Complainant was declared successful and a letter of allotment dated 19.06.2002 allotting him the plot measuring 450 sq. meters was sent to him. Grievance of the complainant was that the OP had demanded the price 10% higher than the stipulated price for the plot in question stating that the plot allotted to him was a corner plot. Complainant was accordingly asked to deposit Rs. 56,700/- to make payment towards 25% of the price within thirty days. Balance 75% was to be paid in six equal instalments of Rs. 33,550/-, each on 04.01.2002, 04.06.2003, 04.12.2003, 04.06.2004, 04.12.2004 and 04.06.2005. Complainant contended that as per terms and conditions given in the brochure he was required to deposit an amount of Rs. 48,600/- towards 25% of the price within a period of thirty days from the date of allotment. Subsequent six instalments were also thus calculated on the basis of the 10% extra cost. In nutshell, the complainant had deposited an excess amount of Rs. 32,400/-. Complainant filed a complaint in the District Forum seeking refund of the excess amount of Rs. 36,335/- (plus interest of Rs. 3,935/-) alongwith compensation to the tune of Rs. 50,000/-. Litigation charges were also prayed for. Besides this, directions were sought against the OP to discontinue the unfair trade practice/restrictive trade practice and not to repeat the same in terms of section 14(f) of the Consumer Protection Act, 1986.
4.      OP raised a defence that clause 18 of the allotment letter provided for referring any dispute arising between the parties to an arbitrator. OP further submitted that the advertisement for allotment of residential plots was only indicative whereas the terms of allotment were clearly mentioned in the letter of allotment. Complainant was at liberty to accept or reject the same. OP raised a plea that the complainant paid the cost of the plot as per letter of allotment and paid the extra cost of 10% for the corner plot. Complainant thereafter challenged the charging of extra 10% of the cost. OP also took a legal plea to the effect that under the Consumer Protection Act, compensation could be awarded to the consumer only for any loss or injury suffered.
5.      On the basis of the pleadings of the parties and evidence, Ld. District Forum VI directed the OP to pay to the complainant an amount of Rs. 32,400/- i.e. 10% of the extra amount taken for allotment of the corner plot.  Amount of Rs. 20,000/- was awarded for deficiency of service, mental agony and harassment. Costs of Rs. 10,000/- towards litigation were also awarded.
6.      In its appeal No. 623/2009, OP prayed for setting aside the impugned order dated 14.07.2009 on the grounds that the letter of allotment clearly provided for charging 10% extra for the corner plot. OP further submitted that the said extra charges of 10% were applied in all the cases.
7.      Appeal No. 699/2009 has been filed by the complainant Sh. P.D.Gupta seeking directions against the OP to pay interest @ 15% p.a. on the excess amount (already directed to be refunded) of Rs. 32,400/-. Complainant has also prayed for enhancement of the compensation and litigation charges awarded by the Ld. District Forum vide orders, impugned.
8.      We have heard at length the arguments addressed by the counsels for the parties. Admittedly, the advertisement floated by the OP did not provide for charging extra amount for any preferential location of the plot. Similarly the brochure giving terms and conditions in detail remained silent on this count. It was only vide letter of allotment dated 19.06.2002 that the OP demanded 10% extra cost. Now the question arises as to whether it was open to the OP to demand higher price for a corner plot at that juncture. Contract came into existence between the parties after the complainant accepted the terms and conditions and paid 10% of the price alongwith the application form. Price of the plot was a material condition which could not be changed arbitrarily. It is not the case of the OP that the agreement provided for the change of the price of the plot at any point of time. What stopped the OP from making the said condition public, has not been made clear. Plea thus raised by the OP is devoid of merits.
9.      OP has raised an objection that matter is required to be referred to arbitration in terms of the arbitration agreement. Section 3 of the Consumer Protection Act, 1986 provides that the Act is in addition to any other law for the time being in force. In the case of Ram Nath V. Improvement Trust, Bhatinda, 1994 (I) CPR 357, it was held that the arbitration clause is not a bar to the entertainment of a complaint by the Redressal Agency constituted under the Act, even if the arbitration provision has been laid down in a statute. We, therefore, find it difficult to agree with the OP that the orders dated 14.07.2009 passed by the Ld. District Forum VI are unjustified and illegal.
10.  Coming to the appeal preferred by the complainant for enhancement of the amount of compensation (including litigation charges) and payment of interest @ 15% p.a. on the extra amount (Appeal No. 699/2009), the complainant stated that the OP being a government agency was expected to work for public interest. He had been put to harassment and inconvenience. Now the question arises as to whether the complainant was entitled to interest on the excess amount charged by the OP. In the case of Ghaziabad Development Authority V. Balbir Singh (2004) 5 SCC 65, the Hon’ble Supreme Court while noticing the case of the CIT V. Dr. Sham Lal Narula, AIR 1963 Punjab 411 observed as under:

“The words “interest” and “compensation” are sometimes used interchangeably and on other occasions they have distinct connotation. “Interest” in general terms is the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another. In its narrow sense, “interest” is understood to mean the amount which one has contracted to pay for use of borrowed money. ...In whatever category “interest” in a particular case may be put, it is a consideration paid either for the use of money or for forbearance in demanding it, after it has fallen due, and thus, it is a charge for the use or forbearance of money. In this sense, it is a compensation allowed by law or fixed by parties, or permitted by custom or usage, for use of money, belonging to another, or for the delay in paying money after it has become payable.”

 

11.  Coming to the case in hand, it is not the case of the complainant that he was not actually allotted the plot. Admittedly plot has been allotted to him. OP is a government agency and not a private player making huge profits in selling the plots. It is not the case of the complainant that the prices of the real estate went up and he suffered any loss or injury. Similarly it is not the case of costs of construction getting escalated. For seeking any compensation, clearly the complainant has to show that he suffered any loss or injury. Imposition of any damage and compensation against state, the ultimate sufferer is the common man. It is the tax payer’s money which is paid for inaction of those who are entrusted under the Act is discharge their duty in accordance with law. Complainant has failed to show if he suffered emotional suffering, insult, injury or loss. The amount of Rs. 20,000/- awarded to him implicitly covers the interest for which he had been deprived of as the extra paid amount remained with OP for certain period. We, therefore, are of the opinion that the impugned order does not warrant any interference from this Commission. Both the appeals i.e. First Appeal No. 699/2009 and No. 623/2009 are hence dismissed.
12. Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.
13.  FDR, if any, deposited by the appellant be released as per rules.

 

(N P Kaushik)

Member (Judicial)

 

 

(S C Jain)
Member

 

 

 

6.