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Judgment
Avm J. Rajendra, Avsm, Vsm (Retd.), Member
The present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”) against the Order dated 17.12.2018 passed by the State Consumer Disputes Redressal Commission, Haryana, Panchkula (hereinafter to be referred as “the State Commission”), in Consumer Complaint No.370 of 2017, wherein the Complaint filed by the Complainant (Appellant herein) was disposed of with the following observations:
“Since there is a very small amount is involved, the HUDA authorities would not press the complainant to deposit the amount as the same is approximately around Rs. 10,000/- and more over the complainant was senior citizen aged 76 years old and was continuously visiting the HUDA office, which is clear harassment to the complainant. With these observations, the complaint is accordingly stands disposed off”.
Brief facts of the case as per the Appellant are that that a residential plot No. 113, Sector-43, Gurugram was allotted to him by EO, HUDA on 31.05.2002 at a cost of Rs.9,20,330, which was later made a preferential Plot No. 113-P. The total price including the Increased area cost and the preferential cost was paid by the Appellant. The Estate Officer-II HUDA issued two demand letters for payment of enhancement price of the plot as under:
(i) Memo No. Z0002/E0018/UE 029/DELET/0000006727/5260 dated 02.04.2012 for Rs.12,00,031/- @ Rs.6201.71 per Sq Mt.
(ii) Memo No. Z0002/B0018/UE029/DELET/0000005474/14056 dated 14-12-2012 for Rs.1082706/- @ Rs.5595.38 per Sq Mt.
(iii) In para 3, of both demand letters, it was mentioned that the payment can be made within 30 days from the date of the letters, failing which interest @15% p.a will be charged from the date of issue of the letter till payment. However, payment can also be made in installments with interest. Details of the payments are as under:
Sr. No.
Principal amount paid in rupees
Details of interest paid @ 15% p.a
Receipt No. with date
Remarks
1.
Demand notice dated 02-04-2012 for
Rs.12,00,031
1,86,000
No interest payable
16357 dated 15.03.2012
5,14,035
12,927
for 31 days from 02.04.2012 to 02.05.2012
19749 dated
03.05.2012
(12,000,031-1,86,000)
=10,14,031
5,00,000
1477
for 7 days from 03.05.2012 to 10.05.2012
20398 dated
10.05.2012
(5,14,035-12,927)
= 5,01,108 (10,14,031-5,01,108)=
5,12,923
15,660
from 10.05.2012 to 10.12.2012 213 days Rs.14,400
40334 dated
10.12.2012
(5,00,000-1,477
= 4,98,523
(5,12,923-4,98,523
= 14,400/-)
Total paid
12,00,035
2.
Demand notice dated 14.12.2012 for Rs.10,82,706
9,32,706
No interest payable
43398 dated 11.01.2013
1,50,000
No interest payable
43399 dated 11.01.2013
Total Paid
10,82,706
Perusal of the statement of accounts dated 13.07.2015, received by the Appellant on 20.07.2015 revealed that in both the demand letters, HUDA had charged interest from the effective date shown in the demand letter i.e. 13.02.2012, instead of date of issue of the notices, after clubbing the amount of both the demands issued on different dates and making installments for different period on his own without any request from the Appellant seeking payment in installments. The total amount of both the demands received by the Appellant comes to Rs. 22,82,737. Whereas, the total shown by HUDA up to 23.12.2015 comes to Rs. 23,06,762/-, which is more than Rs. 24,025/- for which no demand notice was received. At the end of the statement a principal amount of Rs.47,759/- was shown as pending as on 23.12.2015, which is incorrect. The enhancement cost amount of both the demands dated 02.04.2012 and 14.12.2012 paid by the Appellant with interest was not adjusted on the respective dates of payments and adjusted the same in installments from 21-1-2013 to 23-12-2015 by showing that he was in credit of Rs.19,16,370/-in on 11-01-2013, which is not correct. Had HUDA adjusted the payment made by the Appellant on the respective dates of payments, there would have been NIL payment balance. HUDA adopted illegal ways to earn interest by manipulating the accounts for earning interest. He is not liable to any outstanding amount, in the absence of any demand notice. The second issue is of extension fee, as stated below:
(i) As per the statement of account issued, there is "NIL" balance of extension fees and service tax pending into their records up to the year 2012.
(ii) HUDA revised the dates of extension fees vide letter No. 18221-42 dated 12.04.2013 that the new rates are applicable from the date of issue of the letter. Allottees who paid before the letter was issued will not be required to pay difference. He had already paid the extension fees on 04.01.2013 at the old rates. However, HUDA demanded difference in the amount and also started charging the service tax from the year 2014 which is paid up to date.
(iii) He approached the EO(II) HUDA many times and made requests vide his applications dated 07.12.2012, 10.12.2012, 26.11.2013 and 20.11.2014 to charge interest from the date of issue of demand notices and not from the effective date. But no action was taken. For extension fees also, he wrote two letters on 12.02.2015 and 05.08.2015. No action was taken. Being aggrieved, he filed a Consumer Complaint before the State Commission and sought the following and compensation of Rs.20,000/- for harassment and Rs.10,000 as costs:
i. To charge interest on enhanced amount from the date of demand notices and not from the effective dates shown.
ii. The amount of enhancement paid by him be adjusted against a particular demand notice on the respective dates
iii. The demand amount should not be clubbed and revised for payment in installments.
iv. Separate demand notice for enhancement be issued for payment from the current date for the purpose of interest.
v. The differential amount of extension fees and service tax for the year 2013 may not be charged by HUDA.
The Respondents/OPs, in their written statement, have taken objections that all allottees were also informed through publication in the newspaper regarding the demand of 2nd enhancement in Sector 43 on 02.02.2012. Hence, legally, it is proved that the Complainant was very much in the knowledge of demand amount of Rs.12,00,031 published in two Newspapers in Hindi and English. But he failed to pay dues within time. Therefore, he is trying to take undue advantage by concealing this fact at this stage. His main plea is that the demand letter was issued on 02.04.2012 containing condition that if the dues are not deposited within 30 days, the interest @ rate of 15% shall be charged on delayed payment from the date of issue of the demand letter. However, he deposited the amount on May 2012 i.e. within 30 days, whereas the interest is being charged from the date of generating/effective date i.e. 13.02.2012. This plea has no force in law. The demand of interest is very much legal as HUDA has already deposited the amount in Judicial Courts, to be paid to the landowners. So the demand of HUDA is legal and binding upon the rights of the allottee/Appellant.
There is no question of any unfair Trade Practice. The interest was calculated strictly as per the HUDA policy from time to time which is uniformly applicable in all allottees. The Complainant filed similar complainant before the learned District Forum and the same was decided in his favour. Accordingly, an execution bearing No.339 of 2011 was filed before the District Forum which was dismissed as withdrawn, being fully satisfied by the learned District Consumer Forum, Gurugram on 20.07.2015. Clearly, he has already availed the legal remedy and he is estopped from filing the present complaint. Further, he is barred under Section 70 of the HUDA Act and the present complaint is misuse of process of law and the same is liable to be dismissed.
Vide the Impugned Order dated 17.12.2018 in C.C. No.370 of 2017 passed by the State Commission, the Complaint was disposed of with the observations as mentioned in Para 1 above.
Being aggrieved, the Appellant filed the present Appeal seeking that “the impugned order passed by the Hon'ble State Commission Panchkula may be set aside and this Hon'ble Commission may kindly be pleased to allow with cost and compensation, in the interest of justice.”
The Appellant/Complainant raised three issues which are given below:
(a) Whether the Demand Notices dated 13.02.2012 and 23.12.2012 issued by the EO-II for payment towards enhanced cost of the plot i.e. Plot No.113P, Sector-43, Gurugram towards land acquisition compensation enhancement is legal?
b. Whether the due shown in the statement of account as on 09.07.2018 is correct?
c. Whether the Appellant is liable to pay the extension fee the amount of Rs. 4301 paid by him for the year 2013?
The Respondents/Opposite Party has not filed any Objections/Reply to the present Appeal.
The Appellant argued in person that the total amount paid by him with interest was Rs.22,98,397. Instead of adjusting the amount paid by him on the date of payment, the Respondents/ OPs clubbed the amount of both demands and on their own, termed it installments and charged interest from 13.02.2012 to 23.12.2015 on the installments. Thus, as on 23.12.2015, Rs.58,712/- as interest and principal enhancement cost of Rs.47,759/- was shown as outstanding from him. The total amount shown outstanding as on 31.01.2022 was Rs.1,76,489/-. It should have been Nil.
The OPs charged an extension fees for non-construction of the building every year. There was Nil balance up to 2012. For the year 2013, he paid on 04.01.2013. The rates were revised on 12.04.2013. As per OPs letter, those who already paid before the letter was issued, need not pay the difference. However, he was charged the difference and was disallowed the rebate of 10% and Rs.31,608/- was claimed as due from him up to 2018. His several letters yielded no response. He sought setting aside of the impugned order dated 17.12.2018 passed by learned State Commission. He further sought the directions as pleaded in the Appeal filed by him.
The learned Counsel for the Respondents argued that Clause No. 9 of the Allotment Letter dated 31.05.2002 issued to the Appellant clearly stipulates that the price of the plot is tentative insofar as any enhancement in the cost of land awarded by the Competent Authority under Land Acquisition Act. It shall also be proportionately payable by the allottee as determined within 30 days of demand. By accepting allotment, the terms and conditions stipulated therein he acquiesced to and accepted the same. He further argued that the OPs have demanded Rs.12,00,031/- in lieu of the enhancement amount vide Memo No. ZO002/E0018/UE029/ DELET/0000006727 dated 13.02.2012, which clearly provides two mechanisms for remittance of such enhancement cost:
(a) Payment by the allotee in lumpsum within 30 days of the effective date as given; or
(b) Payment in 7 installments of equal amount with interest @15.60% per annum as per the schedule provided.
The learned Counsel for the Respondents argued that the allottee, by remitting Rs. 1,86,000/- on 14.03.2012 had initiated the installment mechanism for remittance. As such, he is liable to pay the interest amount prescribed in the schedule of demand letter. The Appellant’s averment that the said demand letter was brought to his notice on 02.04.2012 and not 13.02.2012 does not have any iota of truth, especially in the light of payment of Rs.1,86,000/- made by the Appellant himself on 14.03.2012 i.e. much prior to the purported claim of receipt of the said demand letter. As such, his statement is prima-facie false and misleading, and he is not entitled to any relief whatsoever. Similarly, the HUDA raised another demand for payment of Rs.10,82,706/- in lieu of the enhancement vide Memo No. ZO002/E0018/UE029/ DELET/0000005474 dated 23.12.2012. This also had similar two mechanisms for remittance and he chose installment payment. Thus, he is not entitled to any relief whatsoever. The learned Counsel vehemently argued that the excess extension fee charged is reflected in the updated statement dated 28.08.2023. The same has also been placed on record.
We have examined the pleadings and associated documents paced on record and thoughtfully heard the arguments advanced by learned Counsel for Appellants and the Respondent in person.
It is an established fact that the Complainant was allotted Plot No. 113, Sector-43, Gurugram on 31.05.2002 for an initial cost of Rs.9,20,330/-. This plot was later designated as preferential Plot No. 113-P. He paid total price of the plot as well as the preferential cost. Subsequently, the OPs/HUDA issued two demand letters for enhancement price in 2012, for Rs.12,00,031/- dated 02.04.2012 and for Rs.10,82,706/- dated 14.12.2012, totaling Rs.22,82,737/-. This amount was to be paid in installment(s) of equal amount with interest @15% per annum from March 2012 to December 2015, within 30 days from the date of the issue of the demand letters; otherwise, interest at 15% per annum would be charged from the date of issue of demand letters until the payment date. Therefore, the amount paid by the Appellant/Complainant is Rs.22,98,397/- including Rs.15,660/- interest. Allegedly, the total amount of enhancement cost shown in 14 installments from 13/03/2012 to 23/12/2015 in page 8 of Statement of Account is Rs.23,06,762/-, exceeding the actual amount by Rs.24,025/-. No demand notice for this excess amount was received from HUDA by him. According to him, he paid both demands with interest which was not adjusted on respective dates and were adjusted in installments from 21.01.2013 to 23.12.2015, indicating a credit of Rs.19,16,370/- on 11.01.2013, which was illegal. Thereafter, HUDA revised the extension fees vide letter dated 12.04.2013. He paid the extension fee on 04.01.2013 and disputed the interest calculations and payment adjustments and enhancement compensation (EC) leading to an alleged outstanding balance due from him.
In view of the foregoing, the whole issue revolves around the Enhancement Compensation Cost, Interest on Enhancement Compensation Cost, Delay Interest and charging of Extension fee for non-construction in respect of the plot in question. While the Appellant expressed his grievance, the learned State Commission had granted the relief that the HUDA authorities would not press the complainant to deposit the amount as the same is approximately around Rs.10,000/-. Dissatisfied with this Order, the Appellant approached this Commission.
The Appellant has stated that the outstanding shown by the HUDA is Rs.1,28,432/- as per statement of account dated 09.07.2018 and challenged the same. The learned Counsel for the Respondent-HUDA submitted as per the Statement of Account of the Appellant dated 28.08.2023 the following dues are outstanding:
Enhancement Cost Amount = Rs.47,759/-
Delay Interest-EC = Rs.54,000/-
EC Interest = Rs.30,832/-
___________________
Total EC = Rs.1,32,591/-
___________________
The learned Counsel for the Respondent-HUDA has further submitted that this demand is genuine under Clause 9 of the Allotment Letter dated 31.05.2002 insofar as any enhancement in the cost of land awarded by the competent Authority under the prevailing Land Acquisition Act shall also be proportionately payable by the allottee as determined. Therefore, the contention against payment towards enhancement cost by the Appellant is untenable.
As regards the issue of charging extension fee, the Appellant further submitted that the HUDA changed the Policy for grant of extension fee payable every year for non-construction of building on the plot by increasing the rates with effect from 12.04.2013. Moreover, in Para 5 of the allotment letter the allottees who have paid the extension fee before issue of this letter will not be required to pay the differential amount for the year 2013. He submitted that the Respondent charged the differential amount of Rs.4301/- for year 2013 but he paid Rs.6100/-. As per him, there is nothing outstanding from him on this account but the Respondent-HUDA demanded Rs.31,608/- in the statement of account which is against their own policy.
The learned Counsel for the Respondent submitted an updated Allottee Account Statement in respect of the Appellant-Khem Chand Sharma dated 28.08.2023 with regard to charging of extension fee has been rectified by the HUDA which is reflected at the page of 12 of the said statement of account and the outstanding amount as on dated 28.03.2023 is reflected as 0.00. The page 12 of the said statement of account is reproduced below:
HARYANA URBAN DEVELOPMENT AUTHORITY
Allottee Account Statement
Date 28/08/2023
Page 12 of 13
_____________________________________________________________________
Extension
Extension year
Due Date
Due
Amount
Payment Date
Payment/Refund Amount
Payment Head
Extension
Principal Adjusted
Current Principal
Current Surcharge
Surcharge Due
Surcharge Adjusted
Principal
Balance outstanding
Remarks
01-01-2020
21,769.00
0.00
0.00
0.00
0.00
0.00
20,726.00
12-03-2020
21,770.00
EXTEN
21,770.00
0.00
0.00
1,044
01-01-2021
21,769.00
0.00
0.00
0.00
0.00
0.00
20,725.00
27-02-2021
21,770.00
EXTEN
21,770.00
0.00
0.00
1,045
01-01-2022
26,123.00
0.00
0.00
0.00
0.00
0.00
25,078.00.00
20-02-2022
26,125.00
EXTEN
26,125.00
0.00
0.00
1,047
01-01-2023
26,123.00
0.00
0.00
0.00
0.00
0.00
25,076.00
28-03-2023
26,130.00
EXTEN
25,076.00
0.00
0.00
0.00
Excess
Amt. adj. in DIENH- Rs.1054.00
Based on the above discussion, the Appellant is bound to pay the installment along with interest as is levied by the Respondent as per the policy on the cost of the plot. As regards, charging the extension fee, considering the fact that the Appellant had paid the extension fee as per the existing rate before the letter issued by the Respondent-HUDA enhancing the same, the HUDA has waived off those dues against the Appellant. Thus, in his statement of account the balance on this account is shown as nil.
The instant First Appeal No.227 of 2019 is, therefore, disposed of accordingly. All pending Applications, if any, stand disposed of. The Statutory amount, if any, deposited by the Appellant be refunded, after due compliance of this Order.