ROURKELA DEVELOPMENT AUTHORITY vs SARASWATI NAYAK

THE opposite party in C. D. Case No. 410 of 1996 filed before the District Forum, Sundargarh-II, Rourkela has filed this appeal challenging the orders dated 6. 5. 1997 of the District Forum to return to the complainant the earnest money Rs. 1,000 deposited by her together with interest @12% per annum on the said amount from 15. 11. 1989 to 20. 6. 1994 and with interest @ Savings Bank of National Bank from 21. 6. 1994 till the date of payment.

FACTS in brief out of which this appeal aros are that, the complainant/respondent had applied for a shop making earnest money deposit of Rs. 1,000 as per a draft dated 15. 11. 1989 with the opposite party of the proposed Commercial Complex, Chhend Housing Project, Stage-I, Rourkela. The opposite party was to complete the said commercial complex obtaining loan from HUDCO, New Delhi. Since HUDCO delayed the matter, opposite party dropped the project for want of funds. According to the complainant, in spite of her request the said amount is not refunded to her. Therefore, alleging deficiency in service against the opposite party, complainant filed the C. D. case claiming said amount of Rs. 1,000 with interest and cost of litigation Rupees 500. The opposite party while admitting to have received said Rs. 1,000, denied to have caused deficiency in service to the complainant, who according to him, is entitled to get refund of said Rs. 1,000 only without interest as the earnest money is interest free. Opposite party has stated not to have neglected complainant in respect to refund of said amount on the ground that though vide letter No. 3699/rrit dated 20. 6. 1994, he informed complainant to take refund of said amount yet the letter has been received unserved with postal remark "left". Therefore, as complainant has changed her address she could not get refund of the said amount and opposite party, therefore, had prayed for dismissal of the C. D. case. Going through the case of both parties, the District Forum held opposite party to have caused deficiency in service in not refunding said amount and directed opposite party to refund said amount with interest, even though earnest money deposit is interest free with an observation that the opposite party is enjoying interest accrued from said amount from the date of its deposit.

The opposite party has challenged this order of the District Forum filing this appeal on the ground that District Forum has erred into law awarding interest on the earnest money deposit which is interest free and as money was not received on condition to pay interest or that amount was invested having any interest bearing scheme. Moreover, complainant having not intimated opposite party in respect to her changed address and having not approached him to get refund of said amount, opposite party has caused no negligence.

WE have heard the learned Counsel for the appellant as none appeared for the respondent. Also perused the xerox copies of documents filed in the case and the pleadings of the parties. Now question arose before us as to for whose negligence the earnest amount of money could not be returned to the complainant and whether the interest awarded by the District Forum over the said amount of deposit is illegal and improper.

IN respect to the first point mentioned above opposite party/appellant has not brought any materials that complainant has changed her address. Appellant has not produced the postal cover through which said intimation dated 20. 6. 1994 was despatched to the complainant but was returned back with postal remark "left". He has also not produced official record to establish that though attempts were made to intimate complainant to receive back Rs. 1,000 it was unsuccessful complainant having changed her address. Had actually complainant changed her address in the meantime nothing had prohibited the opposite party to notify in the widely circulated paper at the locality inviting complainant to take back the earnest money deposited by her. But not such attempt has been taken by the opposite party. Therefore, opposite party cannot avail excuse on the plea that as complainant has changed her address, he could not return the said amount. In the circumstance, retention of the said amount of complainant from the period of dropping of the scheme amounts to gross ''deficiency'' in view of Section 2 (1) (g) of the Consumer Protection Act, 1986. In respect to other point for consideration there is no doubt about it that earnest deposit money is interest free. In the impugned orders, the District Forum has not awarded interest on this amount treating it as earnest money from the time the scheme is dropped. As after the scheme was dropped, District Forum felt that by act of negligence, opposite party has unreasonably detained said amount for longer period of time without the fault of the complainant, it awarded interest over the said amount which would compensate the harassment of the complainant. Therefore, we find no ambiguity in the order of the District Forum in imposing interest over the said amount of Rs. 1,000 though at the beginning was deposited towards earnest money. In view of our observations made above, we find no reason to set aside the impugned orders of the District Forum.

THEREFORE, the appeal is dismissed on merit without cost in the circumstance. The impugned order dated 6. 5. 1997 of the District Forum in C. D. Case No. 410 of 1996 is hereby confirmed. Records received from the District Forum may be sent back forthwith. Appeal dismissed.