Back
2020 Supreme(J&K) 677
IN THE HIGH COURT OF JAMMU AND KASHMIR
Rajesh Bindal, Sanjay Dhar, JJ.
Managing Director, J. and K. Housing Board - Appellants
Vs.
D.C. Sharma and Ors.- Respondent
O.W.P. No. 780 of 2007
Decided On : 21-12-2020
For the Appellant : N.A. Choudhary
The main legal point established in the judgment is that the absence of a demand for refund precludes the finding of unauthorized retention of money, and the requirement for government departments to reconcile income and expenditure must be considered in such cases.
Headnote:
Consumer Protection Act - House Building Advance - Section 10 of Jammu and Kashmir Consumer Protection Act - [Section 10] - The court discussed the provisions of Section 10 of the Jammu and Kashmir Consumer Protection Act, which allows consumers to file complaints regarding deficiency in service. The court also highlighted the calculation of interest and the detection of excess amount deposited by the consumer, emphasizing the legal principles of unauthorized retention of money and the requirement for government departments to reconcile income and expenditure.
Fact of the Case:
The respondent filed a complaint alleging that the petitioner wrongfully retained a sum of money deposited in connection with repayment of House Building Advance. The Divisional Forum and State Commission ruled in favor of the respondent, directing the petitioner to pay a sum of money along with interest and litigation expenses. The petitioner challenged these rulings.
Finding of the Court:
The court found that the petitioner did not unlawfully retain the excess amount deposited by the respondent, as there was no demand for refund from the respondent. The court also noted that the Divisional Forum and State Commission had overlooked the requirement for government departments to reconcile income and expenditure, leading to an erroneous finding of unauthorized retention of money.
Issues: The issues revolved around the alleged unauthorized retention of money by the petitioner and the calculation of the amount retained. The court also addressed the delay in filing the appeal and the justification for condoning the delay.
Ratio Decidendi: The court held that the absence of a demand for refund from the respondent precluded the finding of unauthorized retention of money by the petitioner. Additionally, the court emphasized the requirement for government departments to reconcile income and expenditure, which was overlooked by the lower authorities.
Final Decision: The court allowed the petition and set aside the award passed by the Divisional Forum and upheld by the State Commission.
ORDER
1. The petitioner has challenged order dated 27.04.2007 passed by the J and K State Consumer Disputes Redressal Commission, Jammu (hereinafter referred to as the 'State Commission') as also the award dated 23.11.2004 passed by the Divisional Consumer Forum, Jammu (hereinafter referred to as the 'Divisional Forum') whereby the complaint filed by respondent No. 1 herein has been allowed and the petitioner herein has been directed to pay a sum of Rs. 7200/- along with interest at the rate of 9% per annum to the respondent No. 1. Besides this, the petitioner has been directed to pay a sum of Rs. 5000/- as litigation expenses to respondent No. 1.
2. Briefly stated the facts leading to the filing of this petition are that respondent No. 1 filed a complaint under Section 10 of Jammu and Kashmir Consumer Protection Act (for short 'the Act') before the Divisional Forum alleging therein that the petitioner had wrongfully retained a sum of Rs. 16000/- that was deposited by respondent No. 1 with the petitioner in connection with repayment of House Building Advance. The record of the case shows that respondent No. 1 had availed House Building Advance of Rs. 40,000/-, out of which, a sum of Rs. 16000/- was sanctioned and released in favour of respondent No. 1 by respondent No. 3 herein, whereas, the balance amount of Rs. 24000/- was released by the petitioner in favour of respondent No. 1. The loan amount was repayable in monthly installments.
3. It appears that while repaying the loan amount, the respondent No. 1 deposited a total sum of Rs. 40,000/- with the petitioner from time to time, though he had taken only a sum of Rs. 24000/- from the petitioner. The record further shows that the excess amount deposited by respondent No. 1 with the petitioner was retained by the petitioner until 20.03.1998, when a sum of Rs. 8427/- was refunded by the petitioner to respondent No. 1.
4. With the aforesaid background of the facts, respondent No. 1 approached the Divisional Forum with a complaint alleging deficiency in service on the part of petitioner and respondent Nos. 2 and 3 herein, on the grounds that the excess amount of money was wrongfully retained by the petitioner herein.
5. The Divisional Forum vide its award dated 23.11.2004 allowed the aforesaid complaint of respondent No. 1 and directed the petitioner herein to pay an amount of Rs. 7200/- constituting the interest calculated at the rate of 12% per annum on Rs. 16000/- that was retained by the petitioner herein. Future interest at the rate of 9% per annum along with litigation expenses of Rs. 5000/- was also awarded in favour of the respondent No. 1 herein.
6. The aforesaid award came to be challenged by the petitioner herein by way of an appeal before the State Commission. The said appeal was dismissed by the State Commission vide its order dated 27.04.2007 on the grounds that the same was barred by limitation and that there was no justification for condoning the delay in filing the appeal. Besides this, the State Commission also discussed the merits of the case and held that the petitioner herein has unauthorizedly retained the amount and that the same amounts to deficiency in service. Accordingly, the award passed by the Divisional Forum was upheld by the State Commission.
7. The instant petition has been filed by the petitioner challenging both the award of the Divisional Forum as well as the order passed in appeal by the State Commission.
8. We have heard learned counsel for the petitioner and perused the record. The respondents did not put in appearance despite having been served.
9. The admitted facts, which appear from the record of the case are that vide the sanction order dated 27.08.1984, a sum of Rs. 16000/- was released by the petitioner as House Building Advance in favour of the respondent No. 1 and a further sum of Rs. 8000/- was released in terms of sanction order dated
