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Judgment
MR. Justice Palok Basu, President-Complaint Case No. 1067 of 1994 was preferred by Mahesh Kumar Agarwal, before District Consumer Forum, Ghaziabad with the prayer that the opposite party, i.e., Regional Manager, U.P. State Industrial Development Corporation be directed to- "(1) adjust and bring into account the above mentioned three drafts, i.e., for Rs. 24,000, Rs. 19359.76 and Rs. 8,000 from their date of deposit, i.e., from their date of purchase as mentioned above from dates 14.7.1987, 14.7.1985 and 1.7.1989 respectively.
(2) not to charge interest on the above payments from their date of deposits as above and adjust all the interests claimed and put into account of the complainant by the defendants for the periods for which the above drafts were not encashed by the defendant and further refund back the excess due amount deposited by the complainant in this context, and with interest at the rate of 24% per annum pendente lite on the total excess amount deposited by the complainant;
(3) transfer and let him enjoy the peaceful lease-hold rights of the above plot and not to charge any undue charges for licence agreement, etc.
(4) refund back the amount of Rs. 23,990.76 which were charged by the defendant in context with the so-called restoration charges since the cancellation of the above plot made by the defendants is illegal in itself, therefore, the charges if any, claimed by the defendants for its restoration holds null and void, and must be refunded back to the complainant with interest at the rate of 24% per annum on it.
(5) That the defendant be directed not to threaten or to cancel the above plot in lieu of the adjustment of the payment of the above D.D. for Rs. 8,000 which was not adjusted by them since they have themselves not encashed it for nearly five years and kept with them. The complainant should not be penalised for the deficiency and negligence in services committed by the defendant himself.
(6) to pay the complainant a sum of Rs. 50,000 against the mental agony, harassment and unfair trade practice committed by the defendant intentionally to gain undue benefits from the complainant and the complainant has suffered due to their illegal acts."
THE opposite party remained absent and holding that there was sufficient notice, an ex parte order was passed by the District Forum on 21.6.1997 decreeing the complaint. This has given rise to the appeal No. 208/SC/2002. THE complainant in the meantime put the aforesaid order into execution and the orders passed thereunder forced the opposite party therein to come up with appeal No. 2639/SC/2002. Since both the matters are connected, they are being heard together and being disposed of by a common judgment. Mr. P.R. Tiwari, Counsel for the appellant, namely Regional Manager, U.P. State Industrial Development Corporation, Ghaziabad has been heard at length. Mr. Mahesh Kumar Agarwal, respondent is present in person and has argued the matter. The entire record has been perused.
The undisputed facts are that plot No. E-3, Bulandshahr Road Industrial Area, Site I, situated at Bulandshahr Road, Ghaziabad was given into possession to late Dr. R.C. Agarwal vide lease deed dated 10.8.1972. Problem arose only after the sad demise of late Dr. R.C. Agarwal on 27.7.1986. It is alleged by the complainant that then he wanted to remit payments, being the sole heir of the aforesaid Dr. R.C. Agarwal, the appellant insisted upon him to prove that he is the heir. While all these were going on, a bank draft of Rs. 24,000 was duly despatched by the complainant to meet the payment which fell due till then. The aforesaid bank draft was returned to the complainant on 4.7.1988, but at the request of the complainant the bank draft was accepted as it is and remitted to the bank for collection and consequently on 27.1.1988 the bank draft for Rs. 24,000 stood accepted and duly encashed.
IN the meantime the complainant submitted documents such as the copy of the Will/probate, etc. that he is the only successor of late Dr. R.C. Agarwal. Even before the aforesaid payment of Rs. 24,000, a similar dispute was raised with regard to the earlier bank draft dated 14.7.1985 for Rs. 19,369. The afroesaid amount was to clear off the dues till that date, as against the allotment of the aforesaid plot. This was also not accepted but when again requested by the complainant the same bank draft was accepted on 12.5.1987 and Rs. 19,369 were credited towards payment on behalf of the complainant Mahesh Kumar Agarwal who was by then taken to be the legal heir of erstwhile Dr. R.C. Agarwal.
THE third payment for Rs. 8,000 came to be made on 1st July, 1989 by the complainant to the appellant. A similar dispute arose about the acceptance of the said bank draft, but when requested the aforesaid bank draft was reportedly sent to the bank concerned for encashment; but it is the case of the parties that the said bank draft was not encashed. THE dispute concerning the payment of Rs. 8,000 as per the stand of the appellant is that the bank concerned was demanding an indemnity bond on stamp paper of Rs. 10 and an affidavit for issuing fresh draft in view of the averments therein that the original bank draft was lost. THE complainant argues that it was not his fault that the bank draft was lost. Once he has remitted it, it was the duty of the appellant to encash it in time. On this point Mr. Tripathi argues that the bank draft was lost but in any case unless the indemnity bond was not prepared to issue a duplicate bank draft and that is the reason why the sum of Rs. 8,000 was shown and is still being shown as outstanding against the complainant. The payment relating to Rs. 8,000 should have been taken to have been made on the date of 1.7.1989 which is the date of receipt thereof by the appellant. District Consumer Forum has rightly held it so, but the fact remains that the bank draft has not been encashed. The receipt, therefore, will be while the complainant shall have to pay Rs. 8,000 afresh, the appellant shall not be entitled to any interest on the aforesaid amount of Rs. 8,000. Under the circumstances the liability of the appellant will be only to pay Rs. 8,000 which will cover the dues as against the allottee till 1.7.1989. The outstanding amount which has become payable on and after 1.7.1989 shall be paid by the complainant in accordance with the demand which may be made by the appellant within two months of the demand notice to be issued by the appellant which shall be issued within one month.
THE argument of Mr. Tiwari that interest should be paid on the aforesaid amount of Rs. 19,359 and on other amount of Rs. 24,000 is not accepted and is hereby rejected because the same bank drafts stood encashed by them through quite after some time. Fault lies with the appellant and not with the complainant.
IN view of what has been stated above, both the appeals are disposed of with the following directions : 1. Between the period 21.4.1989 and 1.7.1989 the amount due as against the allottee shall be payable when lawfully demanded by a notice to be issued within one month. A bank draft of Rs. 8,000 shall be paid by the complainant within one month of the demand notice which shall be paid by the complainant within one month of the demand notice and shall be adjusted towards the dues becoming payable for the period indicated;
Any amount which has become due on and after 1.7.1989 shall be paid by the complainant with two months of the demand notice issued by the complainant which shall be issued within one month.
Payment of Rs. 19,359 and Rs. 24,000 shall be taken to be sufficient to square up the dues against the allottee till the period 21.4.1989. Parties will bear their costs. Let copy of this order be furnished within one month.
Appeals disposed of.