DATE OF DISPOSAL: 06.07.2023

SRI SATISH KUMAR PANIGRAHI, PRESIDENT: 

The fact of the case in brief is that the complainants have filed this Consumer complaint under section 35 of the Consumer Protection Act, 2019 alleging deficiency in service against  the Opposite Party (in short O.P.) and for redressal of her grievance before this Commission. 

2. The Opposite Party made an advertisement in daily “Samaj” dated 30.12.2017 to construct stage-II Vivek Vihar Housing Project near Ambapua level crossing by the side of NH-217 and offered HIG, Duplex, HIG simplex, MIG, LIG and EWS category. The said advertisement required the application by 31.01.2008. Basing on the aforesaid advertisement the complainant submitted the form of application along with Rs.25.000/- on dated 04.01.2008 and received the receipt. The O.P. in his office letter No. 1733 dated 05.05.2008 sent by brochure and asked to submit the application duly filled within 45 days of issue of the letter. The complainant filed the application form along with Rs.3,50,000/- by Demand Draft No. 437282 dated 7.8.2008  The O.P. invited the Bids for construction of MIG Duplex etc on 01.02.2010.  The complainant written a letter duly received in the office of the O.P. on 1.2.2010 with regard to progress and message thereon. The complainant submitted petition dated 5.5.2011 followed by reminders dated 25.05.2012 and 21.06.2013. The O.P. instead of construction of Housing complex as per the advertisement asked the complainant to purchase the plot measuring 30’X60’ for HIG plot at Rs.19,80,800/- and 20% charged extra for service road side in his office letter No. 1463 dated 13.12.2013. The complainant filed objection petition on dated 23.12.2013 and the aforesaid decision of the O.P. The same of the applicants like the complainant approached the Hon’ble High Court, Orissa in W.P. ( C ) No. 4114 of 2014 and the Hon’ble High Court, Orissa in Misc. Case No. 3923 of 2014 passed order on 21.01.2015 as in hereunder:

“Considering the submission of the parties, this court directs for status-quo in respect of house pertaining to the petitioner in the Vivek Vihar Phase-II project subject to the petitioners depositing the initial demand which is period of two months as undertaken by the learned counsel for the petitioners. The deposit will be however subject to deduction of the deposits already made in therein”.

In compliance to the  aforesaid order of the Hon’ble High Court, Orissa dated 21.01.2015 the complainant deposited further amount of Rs. 7,90,000/- against the initial demand of Rs.11,65,000/- . Such deposit was made on 03.03.2015.  Since no objection was taken up by the O.P. from 4.1.2008 the complainant submitted letter to refund the deposited amount for daughter’s education fees in petition dated 30.08.2020.  The Hon’ble High Court, Orissa in judgment dated 09.11.2020 in W.P. © No. 4114 directed the money paid to the returned as early as possible. After the order of the Hon’ble High Court dated 09.11.2020 in W.P. © No. 4114 of 2014 the O.P. credited Rs.11,65,000/- on the S.B. account of the complainant on 06.01.2021. The complainant claimed interest on the amount of Rs.11,65,000/- so deposited (Rs.25,000/- on 04.01.2008, Rs.3,50,000/- on 13.06.2008 and Rs.7,90,000/- on 03.03.2015) in petition dated 08.01.2021 of the O.P. In writ appeal No. 821 of 2020 judgment dated 09.07.2021 the Hon’ble High Cour of Orissa passed the order as in hereunder:

            “The learned single judge has directed for refund of the deposited amount considering the fact that the amount deposited by the applicant towards cost of the house has been retained by the BDA for all these years, liberty is granted to the applicant to file an application before the BDA  to refund the amount paid by the applicant along with interest. In case it is aggrieved by the decision of the BDA, it is open to the applicant to challenge it in appropriate Forum”.  

Since the O.P. returned the money of the complainant from 13.06.2008 and credited the amount on 06.01.2021 i.e. about ten years and invested the same on their own business so also availed interest thereon, the complainant is entitled to interest. Hence the complaint.

3. The O.P. appeared through his advocate. It is contended that the case of the complainant is completely premature to file this complaint before this Hon’ble Commission & barred by limitation. Hence the complaint is not maintainable either in facts or law. Admittedly the present O.P. made out a paper publication dated 30.12.2007 to construct Stage-II at vivek vihar Housing Project near Ambapua for construction of different category of housing schemes by the O.P. Accordingly the complainant applied by paying Rs.25,000/- towards application fee, Rs.3,50,000/- towards initial costs and thereafter as per the direction of the Hon’ble High Court, the complainant deposited Rs.7,90,000/-. Thereby the complainant paid Rs.11,65,000/- altogether.  The complainant submitted an application, requesting the O.P. to refund the entire amount of Rs. 11,65,000/- due to want of funds for his domestic purposes. As per the order of the Hon’ble High Court of Odisha WP© No.4114/2014 order dated 09.11.2020 the O.P. returned the money paid by the complainant. Law is well settled on this score, as purchase of plot or flat would be governed by law of contract rather than Consumer Protection Act, hence not maintainable under C.P.Act. In this light the National Commission as observed: “Proper Forum to deal with a disputed question is civil court of competent jurisdiction”. Thereby this Forum has no jurisdiction to entertain the disputes relating to purchase of plots and flats through Development Authorities. Hence the O.P. prayed to dismiss the case in the best interest of justice.

4. On the date of hearing we heard from the advocate of the complainant and O.P. We perused the complaint petition, written version, argument and materials placed on the case record. As per order dated 09.11.2020 passed in W.P.(C) 4114 of 2014 of Hon’ble High Court of Orissa the O.P. credited Rs.11,65,000/- on the S.B.Account of the complainant on 06.01.2021 without interest.

But to avail the interest upon such refunds for the period from the date of deposit till 06.01.2021, the complainant filed an application on 08.01.2021 with the OP claimed the interest as per Govt. Guidelines (Annexure – 14). The complainant is entitled to get interest on Rs.11,65,000/-. Further it appears that a Writ Appeal No.:821/2020 arising out of WP (C) No.:4114/2014, Dated:09.11.2023, the Hon’ble High Court of Orissa, Cuttack held on 09.07.2021 at para 23 in Dr. Kari Babu Gopal Patro v. State of Odisha & Ors that, “23. The Learned Single Judge has directed for refund of the deposited amount. Considering the fact that, the amounts deposited by the appellant towards cost of the house has been retained by the BDA for all these years, liability is granted to the appellant to file an application before the BDA to refund the amount paid by the appellant along with interest. In case it is aggrieved by the decision of the BDA, it is open to the appellant to challenge it in the appropriate Forum.” But in the instant case, the complainant already filed his application for payment of interest on 08.01.2021 (Annexure – 14) but the OP neither replied nor paid the interest on Rs.11,65,000/- to the complainant as per his claim even after order of the Hon’ble High Court of Orissa. Hence in view of the order dtd:  09.07.2021, the complainant is entitled to receive the interest from the OP. but how much of interest the complainant should get for the period for which the amount remained with the OP?

            The Commission relied upon the principle laid down by the Hon’ble Supreme Court of India that, “the interest on the refund shall be payable from the dates of deposits. At the same time, we are of the opinion that the interest of 9 per cent granted by the Commission is fair and just," reported in Indian Kanoon - http://indiankanoon.org/doc/71246029/ in the matter of Experion Developers Private Ltd. vs Sushma Ashok Shiroor, Civil Appeal No. 6044 Of 2019 & Civil Appeal No. 7149 of 2019 on 7 April, 2022.

            In referring to the fact of the present case, it is pertaining to the year 2007 but the peculiar in the case is that, the OP instead of constructed the Housing Complex as per the advertisement asked the Complainant to purchase the plot vide their office ltr. No.:1463/dtd:13.12.2013 (Annexure 8), which speaks unfair trade practice of the OP and kept all the deposits of the complainant with them till the order has been passed by the Hon’ble High Court of Orissa on 09.11.2020 in WP (C) 4114/2014. Meanwhile, it elapsed 14 long years. It creates an extra-ordinary circumstance when the OP not paid the interest along with principal amount. Therefore, the principle proposed in Experion Developers Private Ltd. (Supra) is applicable in the present case and it is well within the complainant’s rights to receive interest on principal amount accordingly.

So far as the compensation and cost of the case is concerned, we are convinced that the O.P failed to take any effective steps to implement the Order of the Hon’ble high Court of Orissa timely for which the complainant has suffered physically and mentally. As such the complaint is entitled to get cost since he has knocked the door of the Commission to get back the interest of the principal amount. Under the above facts and circumstances, in our considered view, it will be just and proper to award cost in favour of the complainant. 

In the result we allowed the case and direct the Opposite Party to pay the interest @  9 % per annum from the dates of deposits of amount till 05.01.2021 to the complainant together with litigation cost of Rs.10,000/- within 45 days from the date of receipt of this order failing which the Complainant is at liberty to recover the entire amount from the Opposite Party with interest @ 12% per annum from the date of filling of the case i.e. 11.01.2022 till actual date of realization of the same is made under the Consumer Protection Act.

This case is disposed of accordingly.

The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.

A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019.

The file is to be consigned to the record room along with a copy of this Judgment.

PRONOUNCED ON: 06.07.2023.