Order

Heard learned counsel for the parties.

2. This appeal is filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to these appeals shall be referred to with reference to their respective status before the learned District Forum.

3. The case of the complainant in nutshell is that OP No. 1 made advertisement for allotment of land in Prachi Enclave, Chandrasekharpur, Bhubaneswar and the complainant being desirous to purchase the plot applied for 2400 sqft at the cost of Rs.2,88,000/-. Pursuant to the application, he has made deposit of Rs. 1,00,000/-. On 15.7.2002 OP No. 1 intimated the complainant that the corner plot bearing No. 120 (C) was allotted to the complainant and as such, he was required to depositRs.57,600/- more towards price of the plot and accordingly, the complainant deposited the same vide Annexure – 8. OP No. 1 by their letter dated 2.6.2003 asked the complainant to pay Rs. 83,481/- including the cost of the corner plot and penal interest vide Annexure – 7. But the complainant disputed to pay the penal interest as the plots allotted to the complainant i.e. 120 (C) was on dispute and it was to develop.

4. It is further case of complainant that OP No. 1 demanded penal interest of Rs. 27,364/- and sent another letter vide Annexure – 11 on 19.1.2004 to the complainant by stating that they are not ableto deliverpossessiondue to some problem with regard to its size ad boundary of the plot. So a new plot would be allotted after due survey. Accordingly, a new plot bearing No. 73(C) wasallotted in place of 120 (C) vide Annexure – 12 to the complainant and complainant also deposited penal interest of Rs.29,090/- under Annexure -13. The deposit was made without prejudice to the right of the complainant for refund of the same as per the complaint under Annexure – 14. Complainant got delivery of possession of plot on 17.4.2004 and therefore asked the OPs to refund the penal interest of Rs.29,090/-. Since the OPs did not listen to the request of the complainant, consumer complaint was filed.

5. OPs filed written version stating that there was initial deposit of Rs. 1,00,000/- and thereafter first and second EMI were to be deposited on 4.11.2000 and 4.12.2000 vide Annexure – 2. But it was deposited on 27.3.2001. The deposit for corner plot was to be made by 14.8.2002 as per letter under vide Annexure – 5 but it was deposited on 25.6.2003. Therefore, the deposit was delayed. Therefore, penal interest was raised. It was also the case of the OPs that the corner plot bearing No. 120 (C) could not be delivered and another corner plot bearing No. 73 (C) was allotted to the complainant on deposit of cost of the corner plot. Hence, the complainant has no any ground to ask for refund of penal interest amount. Therefore, there was no deficiency in service on their part.

6. After hearing both the parties, the learned District Forum passed the following order:-

“xxxxxxxxx In the result, the complaint is allowed on contest. The OPs are directed to pay interest at the rate of 18% per annum on Rs.57,600/- with effect from 25.6.2003 to 17.4.2004, which comes to Rs.8640/-. The compensation for mental agony is fixed at Rs.2000/- and litigation cost is fixed at Rs.1000/- payable by the OPs to the complainant. All the amount be paid to the complainant within one month from the date of communication of this order, failing which the complainant is at liberty to recover the same from the OPs in accordance with law.”

7. Learned counsel for the appellantsubmitted that the learned District Forum has committed error in law by not considering the written version filed by the OPs. According to him as per the brochure any delayed payment either towards the EMD or the cost of the plot, the OPs have got right to impose the penal interest. In the instant case the complainant made delayed in payment of cost towards plot no. 120(C) and also subsequently made delay regardingpayment of instalment inspite of letter of the