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Carolina Fernandes Vs. M/S. F.X. Builders and Others - Court Judgment

LegalCrystal Citation
CourtGoa State Consumer Disputes Redressal Commission SCDRC Panaji
Decided On
Case NumberFA. No. 123 of 2013
Judge
AppellantCarolina Fernandes
RespondentM/S. F.X. Builders and Others
Excerpt:
.....in a building to be known as f. x. towers, for a sum of rs.4.8 lacs out of which a sum of rs.3.42 lacs was paid to the ops. 5. the complainant under the pretext that the complainant wanted to start the business of a hardware shop, took the keys from the ops and made a hole in the back wall so as to be able to stock 6m. long pipes and also put up a gate, which according to the ops, was done with a view to use up the open space which was objected to by the occupants of the building. 6. the complainant ought to have known, when the complainant booked the shop as per plans, whether six meter pipes would have fitted in the shop, in case the complainant wanted to do business in hardware. 7. the complainant then filed the complaint without issuing any notice to the ops, for refund of a sum of.....
Judgment:

N.A. Britto, President:

1. In this appeal filed under Section 15 of the C.P. Act, 1986, the complainant seeks enhancement of interest to 15% or 18% per year as against 9% per year awarded to her by the Lr. District Forum, by order dated 29/11/13.

2. It is rather unfortunate that a complaint which was filed on 6/1/03 came to be disposed off more than a decade later, on 29/11/13, inspite of the fact that the C.P. Act mandates that the consumer complaint ought to be disposed off within three months or so.

3. Some bare facts are required to be stated to dispose off this appeal.

4. The complainant had entered into an agreement dated 18/6/1998 with the OPs for construction of a shop identified as shop No. 11 having an area of 12 sq.mts as per the plans in a building to be known as F. X. Towers, for a sum of Rs.4.8 lacs out of which a sum of Rs.3.42 lacs was paid to the OPs.

5. The complainant under the pretext that the complainant wanted to start the business of a hardware shop, took the keys from the OPs and made a hole in the back wall so as to be able to stock 6m. long pipes and also put up a gate, which according to the OPs, was done with a view to use up the open space which was objected to by the occupants of the building.

6. The complainant ought to have known, when the complainant booked the shop as per plans, whether six meter pipes would have fitted in the shop, in case the complainant wanted to do business in hardware.

7. The complainant then filed the complaint without issuing any notice to the OPs, for refund of a sum of Rs.3.52 lacs with interest at the rate of 20% per annum and also for compensation, and other reliefs. At one stage the OPs had sent a letter to the complainant on or about 25/8/1998 calling upon the complainant to take possession of the said shop by making the balance payment of Rs.2.38 lacs. A legal notice was also sent to the complainant on 18/1/11, calling upon the complainant to pay within 7 days the sum of Rs.1.38 lacs plus Rs.4,858/- failing which the agreement dated 18/6/1998 would stand automatically terminated and the OPs would be free to resell the shop. This letter appears to have been sent by the OPs to the complainant not knowing the exact legal position whether the said agreement with the complainant dated 18/6/1998 was still subsisting.

8. Admittedly, the complainant had not sent any notice to the OPs before filing the complaint on 6/1/03, and, the filing of the complaint itself and seeking the refund of the money paid, ought to have been seen by the OPs as the complainants termination of the agreement dated 18/6/1998, and, as such the OPs were free to sell the suit shop to any other party they chose to. It also appears that at another stage on 9/11/12 the OPs even filed an application before the Forum stating that they be allowed to deposit the sum of Rs.3.32 lacs, as the complainant had failed to take possession of the shop, inspite of notices, and, failed to collect the amount of Rs.3.32 lacs inspite of notice of termination and request to collect the said amount. The complainant had put an end to the agreement dated 18/06/1998 by filing the complaint and seeking refund of money paid and therefore there was no question of the OPs terminating the agreement by notice dated 18/1/11.

9. Be that as it may, it is the complainant who got out of the agreement dated 18/6/1998, so to say, by filing the complaint and seeking refund of the amount paid by him of Rs.3.52 lacs. The Lr. District Forum has awarded to the complainant interest at the rate of 9%.

10. On behalf of the complainant, reliance is placed on two decisions, to support her case for enhancement of interest.

11. In Sovintorg (India) Ltd., vs. State Bank of India, AIR 1999 SC 2963, the Apex Court has held that Section 34 C.P.C being based upon justice, equity and good conscience would authorise the Redressal Forums and Commissions to also grant interest appropriately under the circumstance of each case. Interest may also be awarded in lieu of compensation or damages in appropriate cases. The interest can also be awarded on equitable grounds as was held by that Court in Satinder Singh vs. Umrao Singh, AIR 1961 SC 908. On facts, the Apex Court felt that the grant of interest at 12% by the National Commission was inadequate and therefore interest at the rate of 15% per year was awarded to serve the ends of justice. It may be noted that this was a case where Sovintorg (India) Ltd.- Appellant - was deprived of the user of a sum of Rs.One lakh for over a period of seven years and during the said period the Appellant had to suffer the winding up proceedings under the Companies Act, allegedly on the ground of financial crunch.

12. The case of Lata Construction and ors., AIR 2000 SC 380, stood on its own facts. There, the Respondents were not given flat booked by them on payment of balance amount and thereafter they had entered into another agreement dated 23/02/1991 by which Appellant had agreed to pay to the Respondents the sum of Rs.9.51 lacs in three installments and since the Appellants did not honor the commitment, the Respondents approached the National Commission which decreed their complaint for recovery of Rs.9.51 lacs with interest at the rate of 18% which was then paid, and, therefore the Apex Court did not interfere with the impugned order.

13. In the case at hand, the Lr. District forum appears to have not taken note of the OPs application dated 9/11/12 by which they had shown their willingness to deposit the amount of Rs.3.32 lacs.

14. Considering the facts of this case, we find that there is nothing on record which favours the complainant to claim higher rate of interest. It is the complainant who got out of the agreement and sought refund of the money paid. It is the complainant who has been instrumental in prolonging the complaint by filing one or other applications. In the words of the OPs, in their application dated 23/2/12, the complainant whose brother is a lawyer has been acting under his advice and has been cantankerously moving one application after another to delay due process of law¦etc. The Lr. District Forum has directed the refund of Rs.3.42 lacs to the complainant with interest at the rate of 9% from the date of the filing of the complaint and has also awarded compensation of Rs.25,000/- and costs of Rs.10,000/-. The complainants have got more than what was due to them. There is no appeal filed by the OPs. It is not a fit case to enhance interest ordered to be paid by the Lr. District Forum.

15. We therefore find there is no merit in this appeal and proceed to dismiss the same with costs of Rs.2000/-. The OPs would be free to deduct the said costs from the decretal amount to be paid to the complainant, in case the same has not already been paid.


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