Reserved

State Consumer Disputes Redressal Commission

U.P. Lucknow.

Appeal  No.2325 of 1997

1- Executive Director, M/s Ansal Housing &

    Construction Ltd., 16, UGF, Indra Prakash,

    Bara Khamba Road, New Delhi.

2- Managing Director, M/s Ansal Housing &

    Construction Ltd., 16, UGF, Indra Prakash,

    Bara Khamba Road, New Delhi

3- Additional General Manager, M/s Ansal

    Housing & Construction Ltd., Khajana

    Complex, Ashiana, LDA Colony, Kanpur

    Road, Lucknow (now present address

    6-Sapru Marg, Lucknow.                               …Appellants.

Versus

Sarvan Kumar Srivastava, aged about 37 years,

S/o Sri H.P. Srivastava, R/o H.No. 1027(A),

Sector-M (Old House No.353 M), Ashiana,

Kanpur Road, Extension Scheme, Lucknow. .…Respondent.

Present:-

1- Hon’ble Sri Rajendra  Singh, Presiding Member.

2- Hon’ble Sri Sushil Kumar, Member.

Sri Ankit Srivastava, Advocate for appellants.

None for the respondent.

Date 30.11.2021

JUDGMENT

Per Mr. Rajendra Singh, Member: This appeal has been preferred under section 15 of the Consumer Protection Act against judgment and order dated 27.10.1997, passed in complaint case no.792 of 1995.

In short, the grounds of appeal are that, that the District Forum legally erred to entertain the complaint filed by the  complainant, when the same had been filed after expiry of statutory period of limitation of two years as provided under section 24-A of the Consumer Protection Act, 1986 and the same is liable to be dismissed as barred by statutory period of

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limitation. As such, the impugned judgment and order dated 27.10.1997 passed by the District Forum is illegal and void-ab-initio. As a matter of fact in the present case the possession of the house in question was taken by the complainant on 29.10.1993 and thereafter, the complaint was filed on 11.1.1995 by the complainant before the Hon’ble District Forum, Lucknow i.e. after expiry of period of two years. In these circumstances the complaint filed by the complainant is not maintainable in the eyes of law. The ld. District Forum had legally erred in not considering that any cause of action which was arose to the complainant in respect to the transaction in question was on 29.12.1993 when he had taken the possession of the house in question and if he has any grievance in respect to the transaction, then he has to raise the said grievance under section 12 of the Consumer Protection Act within two years from the said date.

The finding given by the ld. District Forum that the appellant has not denied the fact in respect to the alleged letter written by the complainant  on 15.11.1993. The said finding is incorrect and contrary to the record as in para-18 of the written statement, it was categorically denied that he contents of para-15 of the complaint are wholly misconceived and wrong and are denied and further the matter in regard to the delay was elaborately explained in the said para and it was further submitted that in view of the facts stated in para-18 the complaint is barred by the statutory period of limitation. As such, the finding given by ld. District Forum is contrary to the record. The Consumer Protection Act is a special law and section 24-A of the said Act specifically

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provides the limitation in respect to filing a complaint within two years from the date of cause of action arisen and said limitation period cannot be extended by means of representation. In these circumstances the finding given by the District Forum that in view of the alleged letter dated 15.11.1993 of the complainant the complaint filed by him is within the period of limitation is contrary to the law.

As such the judgment and order passed by ld. District Forum is totally void-ab-initio. As a matter of fact while taking the possession of the house in question on 29.10.1993 the complainant had categorically submitted by means of an affidavit that “the deponent had agreed to make the payment for external development charges, water charges, malba charges, charges for sewer connection, charges for water connection, security deposit against maintenance charges, escalation in cost of construction, increase in built up area and any other misc. expenses incurred for various purposes.” The said fact was categorically brought to the notice of ld. District Forum. There is no justification on the part of the ld. District Forum to hold that the limitation will be counted from the date of letter dated 15.11.1993 even it is not proved that whose signature on the said letter was made. It is further submitted that the said letter cannot in any manner give any cause of action to the complainant, when the said letter was not served or received by the appellants and the said fact has been denied.

As a matter of fact on the application of the complainant dated 8.3.1989 the house in question was booked and in the said application it is specifically provided that I/we agree to sign and execute as and desired by the company house/plot

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buyer’s agreement on the company’s standard form and I/we agree to abide by the terms and conditions of the sales as laid down in the terms and conditions enclosed herewith and as per clause 6 of the terms and conditions of the agreement the expected time for completion is about four years from the date of commencement of the development of city or about 1-1/2 years from the date of sanction of the building plan of the built house whichever is later. In these circumstances the finding given by the ld. District Forum that the possession of the house in question shall be given to the complainant by the appellants uptil 24.10.1991 is totally erroneous and contrary to the evidence available on record. As per the terms an condition of the agreement the house in question was being allotted on the application submitted by the complainant under special discount plan, as such, other terms and conditions in view of the application for allotment duly signed by the complainant and terms stated therein is binding in nature and clauses which are mentioned in the agreement has got legal force in the eyes of law and parties are to abide with the said terms and conditions.

The finding given by the ld. District Forum that possession of the house in question is to be delivered by 24.10.1991is totally incorrect and wrong in view of the terms and conditions of the agreement where it is specifically provided that tentative period for delivery of the possession of the house in question is four years from the date of construction. In these circumstances there is no justification on the part of ld. District Forum to award the compensation in favour of the complainant on Rs.1,40,179.00 @ 1% compound interest for the period 14.10.1991 to 29.10.1993.

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As a matter of fact, in the present case the house in question was ready for handing over the possession of the house on 25.5.1992 and in this regard the notice for taking over the possession was given after depositing the amount mentioned therein. However, the complainant himself failed to deposit the said amount. In these circumstances there is no justification on the part of the District Forum to award any interest to the complainant beyond 25.5.1992. As such, the judgment and order dated 27.10.1997 passed by the District Forum directing that the complainant is entitled for compensation on Rs.1,40,179.00 @ 18% compound interest for the period 14.10.1991 to 27.10.1993 is totally incorrect and untenable in the eyes of law. A sum of Rs.12,934.00 has been charged form the complainant towards escalation cost which is payable by the complainant as per terms and conditions of the agreement entered into between the parties. In these circumstances there is no justification whatsoever on the part of ld. District Forum to direct by means of impugned judgment that the complainant is entitled to get a sum of Rs.12,934.00 which he had paid towards escalation charges with 18% interest from 22.8.1992 till the actual date of payment. So it is humbly prayed that the appeal be allowed and the impugned judgment and order be set aside.

We have heard the learned counsel for the appellants Mr.  Ankit Srivastava. None appeared for the respondent. We have also perused the evidence, pleadings and documents on record.  

We have perused the impugned judgment dated 27.10.1997. The learned Forum has written that as per letter dated 25.2.1989, the possession was to be given after

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deposition of 85% amount, meaning thereby that the possession was to be given by 24.10.1991. The opposite parties demanded the increased construction cost of Rs.13,934.00, Rs.2,150.00 for security and Rs.4,043.68 for external exit and the complainant deposited all the three amounts on 22.8.1992. The opposite parties promised to deliver the possession within one month and executed the sale-deed on 20.3.1993 and also handed over the possession on 29.10.1993. Therefore, the possession has been delivered after a long delay.

The complainant wrote a letter after taking over the possession for giving interest on the deposited amount and thereafter, filed the case before the ld. District Forum. The opposite parties had promised vide their letter dated 25.2.1989 that the possession shall be delivered within 18 months after deposition of 85% of the cost and it has been deposited by the complainant on 25.4.1989 i.e. he became entitled to get possession on 24.10.1991 but it has not been given on the fixed date. The ld. Forum has held that the delay in giving the possession and the increased in the construction price was due to the opposite parties so they are not entitled to claim it from the complainant.

Considering all these facts, the ld. Forum directed the opposite parties to pay 18% compound interest on Rs.1,40,179.00 from 14.10.1991 to 29.10.1993 and also directed the opposite parties to pay interest @ 18% on the amount of Rs.12,934.00 from 22.8.1992 till payment and Rs.1,000.00 as cost of the case.

We have considered all the aspects. There is no doubt

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that the delay has been caused by the opposite parties and this delay also caused increase in the price, so the opposite parties are liable to pay the interest or amount as the case maybe to the complainant. However, the rate of interest of 18% is towards higher side and it should be 10%. The interest @ 2% per month is not genuine and if all the amount has not been paid in three months then the rate of interest shall be 15% p.a. Rest part of the judgment needs no interference.

ORDER

The appeal is partially allowed. The rate of interest shall be 10% in place of 18% and in place of 2% per month, it shall be extra 5% p.a. (total 15% p.a.) after due date. All the interest shall be calculated from 14.10.1991 till the payment of all the money. Order shall be complied with within 60 days from the date of this order.

Cost on parties.  

The stenographer is requested to upload this order on the Website of this Commission today itself. 

Certified copy of this judgment be provided to the parties as per rules.     

       (Sushil Kumar)                        (Rajendra Singh)

             Member                                        Presiding Member

Judgment dated/typed signed by us and pronounced in the open court.

Consign to record.

       (Sushil Kumar)                        (Rajendra Singh)

             Member                                        Presiding Member

     Jafri, PA II

     Court 2