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Rohtash Singh & Another v/s M/s Ansal Properties and Infrastructures Ltd.

    Revision Petition No. 760 of 2013
    Decided On, 01 August 2013
    At, National Consumer Disputes Redressal Commission NCDRC
    By, MEMBER
    For the Petitioners: Naveen Kumar Raheja, Advocate. For the Respondent: Dalip Mehra, Along with Ms. Sugandha, Advocates.

Judgment Text
J.M. Malik, Presiding Member

1. The controversy revolves around the question, 'Whether the Sh.RohtashSingh, complainant No.1 and Smt.Santra Devi, his wife/Complainant No.2, are liable to pay interest?'. M/s.Ansal Properties & Infrastructure Ltd., the respondent, claimed interest upon External Development Charges (hereinafter referred to as ‘EDC’, in short), from the petitioners, under Clause 2 of the Agreement, which runs as follows:-

'Apart from the above internal services, if any external and/or peripheral services are provided by any Haryana Urban Development Authority or any local authority for any bigger zone and any charges is levied thereof and/or any other charges are levied in any respect, the same shall also be payable in addition to the aforesaid price of the plot and be paid on pro-rata by the buyer as determined by the Director, Town and Country Planning, Haryana'.

2. The complainants bought a plot in Sushant City Project of the respondent/opposite party in Panipat vide agreement dated 24.04.2010. The complainants contend that they have paid entire sale price and other charges of the plot as per the terms and conditions of the agreement. However, the complainants were astonished to receive a demand notice from the opposite party, in the sum of Rs.4,63,964/-, on account of interest on the EDC. The complainants filed complaint before the District Forum alleging that there was deficiency in service.

3. The opposite party raised the following defences in its written statement. As per clause 2 of the agreement, the complainants are bound to pay the said amount. The opposite party explained that there were two options for the complainants to pay the EDC, i.e., either in lumpsum or in installments. The complainants chose to make the payment of EDC, in installments. Had they paid the EDC, in lumpsum, they would not have been charged the interest, but in the case of payment of EDC, in installments, the interest was charged. It was explained that at the time of calculation of installments of EDC, due to calculative mistake, the interest was not included in the installments. It is averred that OP is not claiming the interest on the ground of delayed payment by the complainants to the OP but the same was to be deposited by the opposite party/petitioner with Haryana Urban Development Authority. It is common knowledge that if the amount is to be paid in installments, then interest is to be charged on the principal amount. Out of 1139 allottees, 283 allottees have already paid the interest portion on the basis of subsequent demand notice made by the respondent. The respondent realized its mistake in August, 2010 when the Audit Report was filed. The District Forum, Panipat has no jurisdiction and only Delhi Consumer Fora have got the jurisdiction. HUDA is a necessary party.

4. OP has placed on record the copy sent to the complainants dated 28.12.2010, wherein, the said amount was demanded. The said

letter runs, as under:-

'Dear Sir/Madam,

Due to an oversight, we did not charge you interest for the period over which external development cost installments were scheduled to be payable by you even as interest is payable by us to the Government. The fact of non-charge of interest can be verified by you from the facts on record in the letter of allotment.

Accordingly, you are advised to pay a sum of Rs.4,63,964/- being the dues on account of interest thereon without prejudice to other sums payable by you as part of the sale consideration and as per our terms and claims thereof.

In case you need any clarification, you are requested to get in touch with our local sales office at 0180-2649601/02/03.

Sd/- 28.12.2010'.

5. The petitioner has also placed on record the total statement of account.

6. We have heard the counsel for the parties. Counsel for the petitioner/OP has cited three authorities which were reported in :-

(1) M/s. Mackinnon Mackenzie & Co.Ltd. Vs. Audrey D’Costa & Anr., SLP (Civil) No.1265 of 1987, decided on 26.03.1987;

(2) Sri Tarsem Singh Vs. Sri Sukhminder Singh, SLP (C ) No.4639 of 1998, decided on 02.02.1998; and

(3) A.P.Kochudevassy Vs. State of Kerala, A.S.No.177 of 1976 (High Court of Kerala), decided on 05.11.1981.

7. In these authorities, it was laid down that the parties are bound by the agreement.

8. We do not pick up a conflict with this legal proposition. However, we find that the defence set up by the petitioner is vague, evasive, ambiguous and leads us, nowhere. In absence of clear facts, the petition does not begin to jell. Dollops of mystery surround this case. It is not clear whether the complainants were informed about the fact that they will have to pay interest, if they will pay EDC, by installments or not. There is no such inkling in the agreement. There is no evidence that this position was made clear to the complainants.

9. We are of the considered view that the case should be remanded to the District Forum, Panipat, and we, accordingly, remand the matter to the District Forum, Panipat. Both the parties are given opportunity to lead their respective evidence, on this point. This is a material point and if the respondent/OP has failed to disclose all these facts to his clients, in that event, it would be deficiency on its part.

10. Secondly, all the details regarding payment of installments were not furnished. This was also not shown that the installments were paid to the Government/HUDA, immediately, which delayed the above said deposit of the amount, is a fact, which is shrouded in mystery. The documentary evidence should be placed on record before the District Forum, Panipat, to show that the respondent/OP was prompt in depositing the amount, with the Government/HUDA.

11. Thirdly, it is not clear, as to 'When the amount was paid and when the amount was deposited?'. Was there any delay in depositing the amount on the part of the respondent/OP? In that event, the petitioners/complainants should not suffer for the same. Clear cut evidence should come on the record. Is it a case of contributory negligence?. If so, what is its ef

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fect? Each day’s explanation is required. The Circular of the Government/HUDA that the money should be paid immediately, and in that event, no interest should be charged, and if it is paid in installments, only then interest could be charged, was also withheld. Both the parties and, particularly, the respondent/OP is given opportunity to bolster its case with solid and unflappable evidence. The main crucial point is, when the ‘EDC’ was paid, and when it was deposited. The parties are directed to appear before the District Forum, Panipat, on 04.10.2013. The District Forum, Panipat, will try to expedite this case. The revision petition is disposed of, in above terms.