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Failure to pay interest while refunding deposited amount =“Resultantly, we direct that on the amount deposited by the complainants till the date of filing the complaint the total interest accrued i.e. RS.32,49,175/- be paid to the complainants alongwith an interest @ 18% per annum for the period of the pendency of the complaint till the actual realization of the amount. The complainants are also entitled to receive from the respondent Rs.50,000/- as mental harassment and Rs.10,000/- as litigation expenses. The payment of the abovementioned entire amount be made within 2 months.”

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

English: kanpur zoo photos-rhinoceros-1

English: kanpur zoo photos-rhinoceros-1 (Photo credit: Wikipedia)

NEW DELHI

 

FIRST APPEAL NO. 42  OF 2012

With

I.A. Nos.1 to 3 of 2012

(Against the order dated 14.10.2011 in Complaint No.25/2007

of the State Commission, Uttar Pradesh)

Kanpur Development Authority

Motijheel Kanpur

Through its Vice Chairman                                                                                       ……….Appellant

Versus

 

1). Shri Sheo Prakash Gupta

S/o Late Nanhe Lal Gupta

 

2). Shri Sanjai Gupta

S/o Shri Radhey Shyam Gupta

 

Directors of M/s. Sanskriti Real

Estate Pvt Ltd. 1’17/H-2/110,

Pandu Nagar, Kanpur (U.P.)                                                                                    ………Respondents

 

 

BEFORE

HON’BLE MR. JUSTICE V.B. GUPTA,

                              PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

 

For the Appellant        :   Mr. Abhisek Chaudhary, Advocate with

                                        Mr. Nagendra Pandey, Joint Secretary of

                                          Kanpur Development Authority

For the Respondents   :  Mr. Nikhil Jain, Advocate with

                                        Mr. V.P. Sharma, Advocate

 

PRONOUNCED ON:    29.05.2012

 

ORDER

 

PER MR.VINAY KUMAR, MEMBER

The Kanpur Development Authority (KDA) has filed this appeal against the order of the U.P. State Consumer Disputes Redressal Commission in Consumer Complaint No. 25/2007. The facts of the case in brief are that the KDA had auctioned a plot in Kakadeo Scheme on 18.8.2005. Respondent/Complainant, Sheo Prakash Gupta was the highest bidder in this auction. His bid was accepted and the plot was allotted to him on 20.8.2005. By 15.10.2005 the Complainant paid the entire auction bid price of  Rs 153.62 lakhs. But, he did not get the possession from KDA.

 

2.      He later came to know that another person, claiming as the owner of this land, had obtained an interim injunction from a Civil Court. Having paid a huge auction price and having failed to get the plot of land, the Complainant invoked the writ jurisdiction of Allahabad High Court. On 23.5.2006 the High Court directed that KDA to dispose off the application of the complainant within three months. Finally, the KDA refunded him the deposited amount of Rs 153.62 lakh by a cheque of 28.10.2006. But, no interest was paid to the Complainant for the period of 423 days during which this amount had remained with the KDA. In the Consumer Complaint before the State Commission, the respondent/complainant claimed Rs 32,49,174 as interest, Rs 10 lakhs as damages for breach of contract and Rs 25,000 as cost of litigation.

 

3.      The State Commission has allowed the complaint in the following terms—

“Resultantly, we direct that on the amount deposited by the complainants till the date of filing the complaint the total interest accrued i.e. RS.32,49,175/- be paid to the complainants alongwith an interest @ 18% per annum for the period of the pendency of the complaint till the actual realization of the amount.  The complainants are also entitled to receive from the respondent Rs.50,000/- as mental harassment and Rs.10,000/- as litigation expenses.  The payment of the abovementioned entire amount be made within 2 months.”

 

4.      The Kanpur Development Authority has challenged the above order in the present appeal.  The very first ground raised by the appellant is that the State Commission did not afford them an opportunity to be heard and decided the complaint ex-parte.  The appellant does not give any details of the background in which the KDA was treated as ex-parte before the State Commission.  We have heard Mr Abhishek Chaudhary, Advocate on behalf of the appellant/KDA. He argued that notice of the State Commission was not received in the KDA but could not point to any supporting evidence. On the other hand, documents placed on record by the appellant include a letter from the postal department which shows that the registered cover was delivered to the KDA on 21.12.2006. The impugned order categorically notes that notice had been issued to the respondent/KDA but no body had appeared on their behalf. The State Commission had therefore decided to proceed ex-parte against the respondent.  We therefore, do not find any reason to accept this plea of absence of opportunity before the State Commission.

 

5.      Even the present appeal against the impugned order has been filed with a delay of 69 days.  The application seeking condonation of this delay does not even mention the number of days of delay which is sought to be condoned.  Para 3 of this application reads as follows:-

 

That the impugned order was passed on 14.10.2011.  That the thereafter coming to know of the order, the appellant checked for the records wherein it was found that no notice has been received in the matter.  Thereafter on 26.11.2011, the office was directed to trace the record of the file.”

 

Thus, the appellant does not even disclose when exactly the knowledge of existence of the impugned order came to it.  As per the application, the decision to file the application was taken on 28.11.2011, but the appeal was filed two months later on 31.1.2012. Surprisingly, a part of delay is claimed to have been caused by the need to prepare a demand draft of Rs.35,000/-, which is statutory requirement for filing of the appeal.  Clearly, the application for condonation of delay fails to carry any conviction.

 

6.      Another ground raised in the appeal memorandum is that the respondent/Complainant was fully aware of the fact that the auctioned plot was involved in a legal dispute and for the same reason it could not be allotted to them.  The appellant KDA is aware that it had no defense before the State Commission as the proceedings were ex-parte.  Yet, no attempt has been made by the appellant to bring on record any evidence in support of this claim.  Moreover, there is no explanation why the entire money was refunded if the auction purchaser was already aware of the existence of the civil dispute. More than anything else, it is for the appellant to explain how could the plot be auctioned by the KDA with the knowledge of an existing civil dispute. We therefore, reject this plea as one without any substance.

 

7.      A perusal of the complaint petition reveals the basis for acceptance of the amount of Rs.32,49,175/- by the State Commission as the interest payable from the date of deposit till refund. The amount is apparently calculated @ 1.5 % per month, which is the rate allegedly charged by the appellant KDA from theallottees for delayed payments.

 

8.      In view of the examination in the foregoing paras, the appeal of the Kanpur Development Authority fails on grounds of delay as well as merit. Consequently, it is dismissed and the order of the UP State Consumer Disputes Redressal Commission in Complaint No.25 of 2007 is confirmed.  The parties to bear their own costs.

.………………Sd/-…………

(V.B.GUPTA,J.)

PRESIDING MEMBER

 

……………Sd/-…………….

(VINAY KUMAR)

                                                                                            MEMBER

s./-

 

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