Heard learned counsel for the  parties.

2.      This appeal is filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to these appeals shall be referred to with reference to their respective status before the learned District Forum.

3.      The case of the complainant in nutshell is that OP No. 1 made advertisement for allotment of land in Prachi Enclave, Chandrasekharpur, Bhubaneswar and the complainant being desirous to purchase the plot applied for 2400 sqft at the cost of Rs.2,88,000/-. Pursuant to the application, he has made deposit of Rs. 1,00,000/-.  On 15.7.2002  OP No. 1 intimated the complainant that the corner plot bearing No. 120 (C) was allotted to the complainant and as such, he was required to depositRs.57,600/- more towards price of the plot and accordingly, the complainant deposited the same vide Annexure – 8. OP No. 1 by their letter dated 2.6.2003 asked the complainant to pay Rs. 83,481/- including the cost of the corner plot and penal interest vide Annexure – 7. But the complainant disputed to pay the penal interest as the plots allotted to the complainant i.e. 120 (C) was on dispute and it was to develop.

4.      It is further case of complainant that OP No. 1 demanded penal interest of Rs. 27,364/- and  sent another letter vide Annexure – 11 on 19.1.2004 to the complainant by stating that they are  not ableto deliverpossessiondue to some problem with regard to its size ad boundary of the plot. So a new plot would be allotted after due survey. Accordingly, a new plot bearing No. 73(C)  wasallotted in place of 120 (C) vide Annexure – 12 to the complainant and complainant also deposited penal interest of Rs.29,090/- under Annexure -13. The deposit was made without prejudice to the right of the complainant for refund of the same as per the complaint under Annexure – 14. Complainant got delivery of possession of plot on 17.4.2004 and therefore asked the OPs to refund the penal interest of Rs.29,090/-. Since the OPs  did not listen to the request of the complainant, consumer complaint was filed.

5.      OPs filed written version stating that  there was initial deposit of Rs. 1,00,000/- and thereafter  first and second EMI were to be deposited on 4.11.2000 and 4.12.2000 vide Annexure – 2. But it was deposited on 27.3.2001.  The deposit for corner plot was to be made by 14.8.2002 as per letter under vide Annexure – 5 but it was deposited on 25.6.2003. Therefore, the deposit was delayed. Therefore, penal interest was raised. It was also the case of the OPs that  the corner plot bearing No. 120 (C) could not be delivered and another corner plot bearing No. 73 (C)  was allotted to the complainant on deposit of cost of the corner plot. Hence, the complainant has no any ground to ask for refund of penal interest amount. Therefore, there was no deficiency in service on their part.

6.      After hearing both the parties, the learned District Forum passed the following order:-

                             “xxxxxxxxx

          In the result, the complaint is allowed on contest. The OPs are directed to pay interest at the rate of 18% per annum on Rs.57,600/- with effect from 25.6.2003 to 17.4.2004, which comes to Rs.8640/-. The compensation for mental agony is fixed at Rs.2000/- and litigation cost is fixed at Rs.1000/- payable by the OPs to the complainant. All the amount be paid to the complainant within one month from the date of communication of this order, failing which the complainant is at liberty to recover the same from the OPs in accordance with law.”

7.      Learned counsel for the appellantsubmitted that  the learned District Forum has committed error in law by not considering the written version filed by the OPs. According to him as per the brochure any delayed payment either towards the EMD or the cost of the plot, the OPs have got right to impose the penal interest. In the instant case the complainant made delayed in payment of cost towards plot no. 120(C) and also subsequently made delay regardingpayment of instalment inspite of letter of the OPs. There is justification to impose the penal interest. Learned District Forum without going through the materials on record has allowed the complaint by asking the OPs to pay interest@18% per annum for delayed delivery of possession of  corner plot to complaint. It is the complainant who has deposited the amount of Rs.57,600/- as per the brochure. But the calculation of interest on such amount payable by the OPs are against the provision of law and fact. Moreover, since there is fault lies with the complainant with regard to payment of cost in delay and  making delay in delivery of possession, the OPs  are not liable to pay any litigation cost or any othercompensation. So, he submitted to set aside the impugned order by allowing the appeal.

8.      Learned counsel for the respondent filed the cross objection and also submitted against the appeal that the learned District Forum has observed in the order that the complainant is not entitled to get any refund of Rs.29,090/- which was paid by complainant as interest on delayed payment of  cost of the land as such learned District Forum observed that penal interest was rightly calculated and paid by the complainant. She submitted  that when the complaint has already paid the entire cost,  and the plot was not  handed over and the plot number was changed from 120(C) to 73(C)  with delayed delivery of possession of new plot, learned District Forum ought to have considered all these facts while observing that the complainant is not entitled to any refund of interest paid. She submitted that when the OPs are entitled to the penal interest, the complainant should be also compensated for delayed action of the OPs in handing over the possession and allotment of Plot No. 73(C) as per clause – 11 of the brochure. So, she submitted that the cross objection should be allowed and the appeal should be dismissed. Finally, she submitted that she does not press the cross objection.

9.      Considered the submission of learned counsel for the    respective parties and perused the impugned order including the DFR.

10.    The facts admitted by both the parties are well aware by the respective parties. No doubt there was advertisement by the OPs requiring the applicants  to make applications for allotment of plots. Admittedly, the initial deposit of Rs.1,00,000/- was made by the complainant with the OPs. There was also allotment of Plot No. 120(C) by the OPs to the complainant out of the cost of Rs.3,45,600/-. It is also admitted fact that the corner plot was allotted vide Plot No. 120 (C) for which the extra cost was added. Complainant was to  deposit the extra cost of Rs.57,600/-. The only point lies in this case that OP No.1 vide his letter dated 15.7.2002  asked to deposit Rs.57,600/-  along with interest to which the complainant challenged.

11.    When the matter stood thus immediately OP No. 1 asked the complainant by stating that Plot No. 120(C) allotted was a disputed one and in thatplace Plot No. 73 (C) was allotted on 19.1.2004. Again the complainantwas asked to deposit Rs.29,090/-. However, the complainant deposited the said amount withoutprejudice to his claim to make refund of the same. The condition of the brochure is clear to show that for delayed  payment the penal interestcan be charged by the OPs and admittedly in the instant case, there is delay payment of the cost and the penal interest asked by the OPs cannot be said to be illegal. While considering all these facts and provisions of law, we are of the view that OPs havef also not allotted Plot No. 120(C) but allotted Plot No. 73(C) in a later stage and those facts should be considered while  asking for penal interest. However, the delivery of possession has already been given to the complainant as available from the submission of the learnedcounselfor the respondent. In such circumstances, when there is  a penal interest chargeable by the OPs and at the same time, delayed delivery of possession and changing of plot  the complainant should be also compensated. However, we have found that the learned District Forum has elaborately discussed the matter. While confirming the impugned order, we hereby modify the operative portion of the impugned order by directing the OPs to pay interest at the rate of 12% per annum on Rs.57,600/- which has alreadybeen depositedby the complainant with effect from 25.6.2003 to 17.4.2004  after due calculation made by the parties. Rest part of the impugned order would remain unaltered.

10.    The appeal is disposed of accordingly and the cross objection is dismissed as not pressed. No cost.

         DFR be sent back forthwith.

       Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.