Date of Filing – 09.02.2016
Date of Hearing – 04.09.2017
The challenge in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is to the Judgement/Final Order dated 30.11.2015 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-II (in short, Ld. District Forum) in Consumer Complaint No. 235/2015. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent Nos. 1 & 2 under Section 12 of the Act with the direction upon the Opposite Parties i.e. the Appellant and Respondent No.3 to pay a sum of Rs.1,50,000/- as interest against the deposit of Rs.3,00,000/- made by respondent no.1/complainant no.1 and Rs.30,000/- against the deposit of Rs.50,000/- by respondent no.2/complainant no.2 within one month from date otherwise to pay penal interest @ Rs.200/- per day, to pay penal damages of Rs.25,000/- for adopting unfair trade practice, Rs.10,000/- as compensation and Rs.10,000/- as litigation cost etc.
The Respondent Nos. 1 & 2 herein being Complainants lodged the complaint asserting inter alia that complainant no.1 deposited Rs. 3 lakhs and complainant no.2 deposited Rs.50,000/- to the West Bengal Housing Board (WBHB) under Special Deposit Scheme and after expiry of 4 years the said SDS was renewed which was scheduled to be matured on 07.07.2016. However, before completion of the maturity period, all on a sudden without any notice, the OP No.1 WBHB remitted the amount of Rs.3,08,757/- in the account of complainant no.1 with an interest of Rs.8,757/-. In the similar manner, the deposit of Rs.50,000/- in the said scheme by the complainant no.2 which was scheduled to be matured in the year 2016 was remitted in the account of complainant no.2 and he was given interest of 4 months in place of 13 months. Hence, the respondent nos. 1 & 2 approached the Ld. District Forum with prayer for getting the flats against which they deposited money in Special Deposit Scheme or to give interest as per rules.
The appellant/OP No.1 by filing a written version disputed the claim of the complainant and it has been stated that as per Board’s decision, the Special Deposit Scheme has been withdrawn and the payable amount has been credited in the account of investors and as such question of negligence or deficiency in services does not arise.
After assessing the materials on record, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the OPs i.e. the appellant and respondent no.3. To assail the said order, the OP No.1 has come up in this Commission with the instant appeal.
I have considered the submission advanced by the Ld. Advocate appearing for the appellant, and respondent no.3 and also the respondent nos. 1 & 2, who appear in person. I have also scrutinised the materials on record.
Having heard Mr. Prasanta Banerjee and Mr. P.R. Baksi, Ld. Advocates appearing for the appellant and respondent no.3 and respondent nos. 1 & 2 in person and on going through the materials on record, it would reveal that the appellant/WBHB, constituted under the West Bengal Housing Board Act (Act XXXII of 1972) is authorised to accept deposits which are not transferrable from the prospective buyers of the Board’s/flats/house/plots. As per Rule 2 of the Special Deposit Scheme Rules deposits will be accepted for a maximum period of ten years. Minimum initial deposit shall be Rs.10,000/- and after making initial deposit, a depositor may make further deposit/deposits in multiples of Rs.5,000/- from time to time and there shall be no maximum amount of deposits.
Undisputedly, the respondent no. 1 has deposited Rs.3,00,000/- which was initially for four years and subsequently, it was renewed and expiry date was 07.07.2016. However, all on a sudden without notice, the appellant debited an amount of Rs.3,08,757/- in the account of respondent no.1. Similarly, the respondent no.2 deposited Rs.50,000/- in the said scheme and after expiry of four years, it was renewed for another four years which was scheduled to be matured in the year 2016. However, the amount was credited in the account of respondent no.2 without proper interest which is entitled by respondent no.2.
It would be pertinent to record that Rule 12 of the Scheme provides that the Board reserves the right to alter or amend without notice any or all of the conditions stipulated in these rules. Board may also cease to accept such deposit any time if it considers fit without any prior intimation.
Rule 5 of the scheme appears to be relevant for the purpose of determining the real controversy. The provisions of Rule 5 is enumerated below –
- The deposit shall carry interest at the following rates:
- Deposit for 1 year and above but less than 2 years @ 6% p.a.,
- Deposit for 2 years and above but less than 4 years @ 7% p.a.,
- Deposit for 4 years and above and upto 10 years @ 8% p.a.
It is evident that the respondent no.2 has deposited Rs. 50,000/- in the scheme on 10.07.2008 and the same was matured on 09.07.2012 @ 8% p.a. On 09.07.2012 i.e. on the date of maturity, the investment was renewed for another 4 years from 09.07.2012 to 09.07.2016 @ 8% p.a. Similarly, the respondent no.1 deposited Rs.3,00,000/- which was subsequently renewed and the expiry date was 07.07.2016.
Therefore, even if we assess the simple interest @ 8% p.a., the respondent nos. 1 is entitled to interest not less than Rs.24,000/- for 3 years in any circumstances. Therefore, the remittance of cheque of Rs.3,08,757/- showing the interest of Rs.8,757/- only in the account of respondent no.1 appears to be glaring example of deficiency in services. In fact, both the respondent nos. 1 & 2/complainants are entitled to @ 8% p.a. over the deposited amount. Since, it is evident that the appellant has failed to pay the interest in accordance with the Special Deposit Scheme Rules, particularly, Rule 5 of the said rules, the Ld. District Forum was quite justified in allowing the complaint in holding that the OP No.1 was deficient in rendering services. But the amount of interest assessed by the Ld. District Forum has no conformity with the rules as mentioned above. It is well settled that when a rule has been framed and the parties agreed to enter into any agreement in terms of the said rule, the terms and conditions of the Rule is binding upon them. Therefore, instead of the amount awarded by the Ld. District Forum, in my view, an interest @8% p.a. from the date of deposit till the date of remittance will meet the ends of justice.
The conduct of the appellant is not at all appreciable because the depositors deposited the money in a scheme formulated by a Board constituted under Act with a high hope that they will get a shelter over their head or at least will get refund of amount as per Rules but when without fulfilling the Rule 5, the appellants sent the cheque without paying the interest @ 8% p.a., certainly it costs serious mental agony and harassment to the respondent nos. 1 & 2 and as such the Ld. District Forum was quite justified in awarding of compensation of Rs.10,000/- each to the respondent nos. 1 & 2. The situation compelled the respondent nos. 1 & 2 to approach the Ld. District Forum and as such the Ld. District Forum was also justified in awarding cost of Rs.10,000/- i.e. Rs.5,000/- each to each of the complainants.
However, I do not find any reason for imposition of punitive damages of Rs.25,000/-. In a decision reported in (2015) 1 SCC 429 (General Motor (India) Pvt. Ltd. – Vs. – Ashok Ramnik Lal Tolat & Anr.) a question came up for consideration before the Hon’ble Supreme Court whether in absence of any prayer made in the complaint and without evidence of any loss suffered, the award of punitive damages is permissible?. In answering to the question – the Hon’ble Apex Court has observed – “Normally, punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered. Such a claim has to be specifically pleaded”.
Neither there is any averment in the complaint about suffering of punitive damages by the other consumers nor the appellant was aware that any such claim is to be met by it and the appellant having no notice of such a claim, the said order is contrary to the principles of fair procedure and natural justice. Therefore, the order of punitive damages imposed by the Ld. District Forum is not sustainable in the eye of law.
Similarly, the order of payment of penal interest @ Rs.200/- per day for non-payment of the awarded amount within one month also does not appear to be acceptable. Needless to say, imposition of interest is not a penalty or punishment at all but is the normal accretion on capital that in equity a person keeping the money is required to pay the interest being normal accretion on the principal amount. Therefore, when the Ld. District Forum has passed the order without following the provisions of Section 3(1) of the Interest Act, 1978, the said part of the order is also liable to be set aside.
In view of the above, the impugned Judgement/Final Order is modified to the extent that the appellant/OP No.1 shall pay interest @ 8% p.a. over the deposited amount of Rs.3,00,000/- and Rs.50,000/- so deposited by the respondent nos. 1 & 2 within 30 days from the date of deposit till the date of its remittance. The amount of compensation of Rs.10,000/- each and litigation cost of Rs.5,000/- each awarded by the Ld. District Forum is maintained. All the amounts must be paid within 30 days from date otherwise the respondent nos. 1 & 2/complainants shall approach the Ld. District Forum for its execution.
With the above observations and directions, the instant appeal stands disposed of.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information.
