Roop Mala vs Swapan Day & Anr

This revision petition has been filed by the petitioner, Roop Mala against the order dated 29.9.2015 passed by the State Consumer Disputes Redressal Commission, U.P. Lucknow (for short, 'State Commission') in FA No.1894 of 2012.

Brief facts of the case are that petitioner/complainant entered into a contract of construction with respondent no.1 for constructing house on the petitioner's land situated at C-153, Sector-37, Greater Noida, U.P. The total consideration for the construction was Rs.8,10,000/-. However, the house was not completely constructed by respondent no.1 and the petitioner was unable to contact the respondent no.1 as he had shifted his office. Being aggrieved by the aforesaid act of the respondents, the petitioner was constrained to file a Consumer Complaint No.84/2010. The petitioner through Consumer Complaint requested the District Forum to direct the respondent to complete the construction and handover the house within the time frame and also prayed for a compensation of Rs.3,00,000/- towards the mental agony suffered by the petitioner alongwith cost of litigation.

The District Forum issued several notices to the respondents to appear and contest the consumer complaint. Notice dated 17.02.2010 was received by the respondents but respondents failed to appear before the District Forum, Gautambudh Nagar. The District Forum vide its order dated 21.7.2010 allowed the complaint and directed the respondents to pay Rs.4,00,000/- to the complainant within sixty days from the date of this order. The District Forum also awarded 12% p.a. interest on the said amount, which will be calculated from the date of filing of complaint. Complainant was also allowed Rs.2,000/- as litigation cost. Being aggrieved by the order of District Forum, on 22.8.2012 the respondents filed First Appeal No.1894 of 2012 before the State Commission. The State Commission upheld the order of the District Forum except that the order relating award of interest @ 12% per annum was set aside.

Hence, the present revision petition.

Heard the learned counsel for the parties and perused the record.

Learned counsel for the petitioner stated that the State Commission has wrongly observed that the petitioner was living in the house . When the house was not ready, there was no question of living in that house. The money was paid in the year 2006. The District Forum allowed payment of Rs.4 lakhs with interest @ 12% p.a. from the date of complaint. The State Commission has partly allowed the appeal of respondent no.1 and order relating to interest has been set aside. The only reason given by the State Commission is that the complainant was residing in the house and that the complainant has completed the house from his own funds. First of all, the observation of the State Commission is not correct as the complainant was not residing in the said house.

The learned counsel further stated that he has filed the photographs and the photographs speak for themselves that the house was not worth living condition. The learned counsel stated that a certificate dated 14.10.2015 has been given by the President Welfare Association which clearly states that the house was incomplete and was not suitable for residing. It has further been certified that no one was residing in the said house. The amount of compensation ordered by the District Forum became due from the date of order of the District Forum and therefore the petitioner/complainant is definitely entitled to the interest as ordered by the District Forum. The order of the State Commission is totally arbitrary and is not supported by any proper reasoning.

On the other hand, learned counsel for respondent no.1/original OP stated that the petitioner had applied on 29.12.2006 for NOC and he received the same in January, 2007. On this basis, it was argued by learned counsel that if the house was not complete, how could he get NOC from the Competent Authority. The fact that petitioner applied for NOC itself speaks that the house was complete. It was stated by learned counsel that the OP in written statement has also stated that OP's stand was, right from the very beginning that the house was completed as per contract with respondent no.1. However, the District Forum has directed respondent no.1 for completion of house and payment of Rs.2 lakhs as compensation.

In the operative portion, the District Forum has ordered to pay Rs.4 lakhs alongwith 12% p.a. interest from the date of complaint. As the completion certificate was obtained, the petitioner was living in that house and therefore, the State Commission has not allowed any interest on the awarded amount. The State Commission has also observed rightly that 4% amount was still to be paid to the OP by the petitioner which has not yet been paid. Considering all this, the State Commission waived the interest on the awarded amount. In fact, complainant had only prayed for compensation of Rs.3 lakhs, but the District Forum has ordered payment of Rs.4 lakhs which is more than the amount demanded by the complainant and therefore, there should be no question of any interest on the awarded amount.

Learned counsel for respondent no.2 stated that they have been made party by the State Commission at the appellate stage and they were not arrayed as OP before the District Forum. The learned counsel stated that he is not aware about the completion certificate in respect of the property in dispute. The dispute is mainly between the petitioner and respondent no.1 and he has nothing to say in the matter.

I have given a thoughtful consideration to the arguments advanced by learned counsel for the parties and examined the record.

On the basis of overall facts and circumstances of the case, the State Commission has agreed with the award of the District Forum in respect of the payment of Rs.4 lakhs, however, it has set aside the order in respect of 12% p.a. interest on this amount. First of all, it is discretion of the court to award interest or fix the rate of interest. The Hon'ble Supreme Court in the matter of New India Assurance Company Ltd. Vs. Protection Manufacturers Private Limited, (2010) 7 SCC 386, has held as under:

"The submissions made on behalf of the respondent company for enhancement of the same are rejected as we are of the view that such exercise of discretion was just and equitable in the absence of any agreement between the parties regarding payment of interest or quantum thereof."

On the basis of above judgment, the discretion of the State Commission for not awarding interest on the ordered amount is not amenable to scrutiny. The State Commission has observed that the OP has not received 4% of the total consideration which he was entitled to receive as per the contract. It is also to be considered that interest would accrue on 4% amount as well. It has not been denied by the petitioner that he has not obtained the NOC from the Competent Authority and therefore, the presumption of completion of house cannot be questioned. Moreover, it is seen from the order of the District Forum that the District Forum awarded Rs.2 lakhs for payment in respect of the completion of house and Rs.2 lakhs as compensation for the mental agony and harassment etc. It is seen that before the District Forum, the following prayers have been made in complaint:

"(a) Complete the construction and handover the house within a timeframe. Alternatively, he should refund the entire amount paid to him alongwith the interest.

(b) Pay a sum of Rs.3,00,000/- as compensation towards unbearable mental torture, physical harassment and financial loss.

(c) Pay the complaint cost."

From the above prayers, it is clear that the complainant had demanded Rs.3 lakhs as compensation for mental harassment as well as for financial loss. It shows that the complainant has suffered financial loss of Rs.3 lakhs only. The District Forum has awarded Rs.4 lakhs in total which is more than the compensation asked for. Moreover, when the total consideration of the house was Rs.8,10,000/- and Rs.2 lakhs has been ordered by the District Forum for completion of the house, the award of Rs.2 lakhs as compensation for mental agony is not justified. The complainant has not given any break-up of Rs.3 lakhs as compensation. However, as the OP has not come in the revision petition, this Commission would not like to interfere with the amount of compensation granted by the District Forum and upheld by the State Commission. Thus, in these circumstances, I am of the view that the petitioner has received sufficient relief from the fora below and is not entitled to any further relief in the matter.

Based on the above discussion, I do not find any merit in the revision petition which calls for any interference from this Commission and accordingly, R.P. No. 3273 of 2015 is dismissed.