SHELL BHARGAVA-/ vs RAJASTHAN AVASAN MANDAL

THESE cross appeals under Section 15 of the C.P. Act, 1986 (the ''Act'') from the order of District Forum, Jaipur-I in Complaint Case No. 790 of 2000, arise under the following circumstances :

SMT. Shell Bhargava (hereinafter referred to as the ''Complainant'') had applied to the Rajasthan Housing Board (herreinafter referred to as the ''respondent'') for allotment of a residential house to her on outright sale basis. She had duly deposited the registration fee of Rs. 10,000/- and thereafter all the three instalments of the seed money amounting to Rs. 95,000/-. By their allotment-cum-possession letter dated 31.5.1997 the respondents allotted to her House No. 33/37 of H.I.G. Duplex Category in their Mansarovar Scheme and after having adjusted the amount paid by the complainant, required her to deposit the balance amount of Rs. 4,94,405/- within three months of the date of the issue of the allotment letter alongwith all relevant documents. The complainant, however, noted that the amounts of second and third instalments of the seed meney totalling to Rs. 65,000/- were not adjusted while calculating the balance of the amount payable by her. She accordingly invited the attention of the respondents to that fact and requested them to modify the demand. Realising their mistake the respondents rectified the mistake and issued the amended allotment-cum-possession letter on 12.8.1997 requiring the complainant to deposit the balance amount of Rs. 4,31,142/- only within a period of next three months from the date of the letter dated 12.8.1997. The complainant deposited the aforesaid amount within the time allowed and requested the respondent to deliver the possession of the allotted house to her. The respondents, however, required her to deposit Rs. 18,900/- more as interest payable @ 20% p.a. on the delayed payment of the balance amount. The complainant protested in vain against the illegal demand and fought a loosing battle before the Settlement Committee, which directed the complainant to pay Rs. 22,523/- on account of interest at Rs. 18,900/- lease-money from January, 1998 to July, 1999 amounting to Rs. 3,032/- and interest amounting to Rs. 591/- payable on lease-money. The complainant deposited the aforesaid amount plus Rs. 1,394/- imposed on her on account of penalty, under protest and obtained possession of the allotted house on 22.12.1999. She then approached the District Forum with her grievance claiming, (i) refund of Rs. 18,900/- plus Rs. 1,394/- with interest @ 20% p.a. from 22.10.1999; (ii) interest on Rs. 4,31,142/- @ 20% p.a. from 12.11.1997 to 22.12.1999; and (iii) Rs. 10,000/- on account of compensation for mental agony plus cost of litigation. The respondents contested the complaint with the plea that since the complainant had not submitted the copies of challans, depositing IInd and IIIrd instalments, the mistake in calculating the balance amount payable by her was committed in the allotment letter dated 31.5.1997 and, therefore, interest and penalty for delayed payment of the balance amount were rightly charged from her.

The District Forum held that the mistake in preparation of allotment letter dated 31.5.1997 was committed by the respondents themselves and, therefore, they were not justified in charging the interest of Rs. 18,900/- and penalty of Rs. 1,394/- from the complainant. The District Forum, therefore, directed the respondents to refund Rs. 20,794/- to the complainant within a period of one month from the date of its order failing which they shall have to pay interest @ 9% p.a. from the date of the order. The order so passed by the District Forum caused grievance to both the sides. Hence these cross-appeals.

WE heard the learned Counsel for the parties and examined the material on the record of the District Forum. The grievance of Smt. Shell Bhargava, complainant is that not giving adjustment of the two instalments amounting to Rs. 65,000/- in the allotment-cum-possession letter dated 31.5.1997 was respondents'' own mistake which was rectified by them in the subsequent letter dated 12.8.1997 whereby she was required to deposit the balance amount of Rs. 4,31,142/- which she duly deposited within the time allowed, she could not have, therefore, been penalised for the fault of the respondents. She has, therefore, claimed, (i) interest @ 20% p.a. on Rs. 4,31,142/- for the period from 12.11.1997 to 22.11.1999; and (ii) interest at the same rate on Rs. 18,900/- and Rs. 1,394/- from 22.10.1999 to the date of refund of the said amount and Rs. 10,000/- as compensation.

THE grievance of the respondents, on the other hand is that since the complainant had not submitted the third copies of the challans evidencing the deposit of IInd and IIIrd instalments of the seed money amounting to Rs. 65,000/- she was at fault and had rightly been required to pay interest of Rs. 18,900/- and the penalty of Rs. 1,394/-. We, however, find substance in complainant''s grievance. The crux of dispute between the parties is as to whether it was obligatory on the part of the complainant to have informed the respondents that she had deposited the IInd and IIIrd instalments of seed money within the time allowed by the respondents. In this behalf it is not in dispute that the complainant had in fact deposited such amount within the time allowed by the respondent. Respondents'' own action of rectifying their mistake and accordingly amending the allotment letter on 12.8.1997, giving adjustment of the amounts of IInd and IIIrd instalments of the seed money, supports the above position of facts. We are of the view that there was neither any statutory nor contractual obligation on the part of the complainant to have intimated the respondents of her having deposited the IInd and IIIrd instalments of the seed money. In this behalf we find support from the decision of the Hon''ble Rajasthan High Court in the case of Hanuman Prasad Meena v. RHB & Ors., RLR 1994 (1) Page 80, wherein it was held that "no legal duty (is cast) on the petitioner to intimate the Board about payment of instalments, though the instalments of price were deposited by the petitioner in the Bank on the direction of Board and the Bank had received the amount as agent of the Board". In view of this legal position the respondents had rendered deficient services to the complainant in not adjusting the amount of the IInd and IIIrd instalments of seed money in allotment-cum-possession letter dated 31.5.1997. Now coming to the deposit of the balance amount of Rs. 4,31,142/- by the complainant on 12.8.1997, we find that by condition No. 1, thereof the complainant was required to deposit the aforesaid amount alongwith all the documents within three months of the issue of the said letter. It is not disputed by the respondents that the complainant had deposited the aforesaid amount and submitted all the documents within the time specified in the letter. In view of the condition No. 1, as specifically mentioned in letter dated 12.8.1997, the note appended at the bottom of the front side of the letter, and which note stated that the letter dated 12.8.1997 was being issued in continuation of allotment letter dated 31.5.1997 and, therefore, the allotment letter dated 31.5.1997 shall be considered valid and binding, cannot be interpreted to mean that the period of three months for depositing the balance amount shall be deemed to have commenced on and from 31.5.1997. Such an interpretation would be quite illogical and unworkable and hence absurd. It cannot be over-looked that allotment letter dated 31.5.1997 suffered from an obvious mistake committed by the respondents themselves, advertently or inadvertently, in the preparation of the said letter and by amending the same in the form of allotment letter dated 12.8.1997, the respondents had admitted their fault. By the letter dated 31.5.1997 the complainant was required to deposit a sum of Rs. 4,94,405/- which was not the correct liability of the complainant. It was by letter dated 12.8.1997 that her liability was correctly determined and it was that liability which she was required to pay within three months from the date of issue of the letter dated 12.8.1997. Since she had paid that liability within the time allowed, she cannot be regarded as having paid the balance amount of Rs. 4,31,142/- with delay, so as to have made herself liable to pay any interest and/or penalty. Requiring her to pay the amount of Rs. 18,900/- as interest and Rs. 1,394/- as penalty was clearly unjustified and illegal and has been rightly cancelled by District Forum.

SINCE the complainant had paid the balance amount of Rs. 4,31,142/- and submitted all the documents within the time allowed by letter dated 12.8.1997 she was entitled to the delivery of the possession of the allotted house on that day or soon thereafter. But possession of the house was delivered to her as late as on 22.12.1999. No exlanation for this inordinate delay in delivery of the possession of the house to her has been given by the respondents. We are, therefore, of the view that she should get interest @ 9% p.a. on Rs. 4,31,142/- for the period from 1.9.1997 to 30.11.1999 (period rounded to months). In fixing the rate of interest we have taken into account the present bank rate of interest, though in the case of Hanuman Prasad (supra) the Hon''ble Rajasthan High Court allowed interest @ 15% p.a. and in the case of Surender Kumar Jain v. Lucknow Development Authority, III (1993) CPJ 369 (NC), the Hon''ble National Commission allowed interest @ 16% p.a., under similar facts and circumstances.

IN the result the impugned order is modified in the following manner : (1) The respondents shall refund Rs. 20,794/- to the complainant with interest @ 9% p.a. from 1.11.1999 (rounded to month) till the date of refund subject to the condition hereinafter mentioned.

(2) The respondents shall pay to the complainant interest @ 9% p.a. on Rs. 4,31,142/- for the period from 1.9.1997 to 30.11.1999.

(3) Payments of the amounts mentioned in S.No. (1) and S.No. (2) above shall be made at the above-mentioned rates within a period of next three months from the date of this order failing which the aforesaid amounts shall attract interest @ 12%, p.a. from the dates specified above, till actual and final payment.

(4) The respondents shall also pay Rs. 5,000/- to the complainant as cost of this litigation upto our stage.

(5) All the payments, as specified above, shall be paid to the complainant by respondent Board in the first instance through Demand Draft, sent to her on the address given in the complaint and/or the Memorandum of Appeal through registered post A.D. or be deposited with the District Forum, Jaipur-I. Such amounts shall however be realised by the respondent Board from the erring and delinquent officials/officers as per decision of the Hon''ble Supreme Court in the case of L.D.A. v. M.K. Gupta.

IN view of the above, complainant''s Appeal No. 868 of 2001 is partly allowed but respondent''s Appeal No. 966 of 2001 is dismissed. Ordered accordingly.