NBCC (INDIA) LIMITED versus SHRI RAM TRIVEDI
[2021] 2 S.C.R. 280, Supreme Court of India, 2021
Outcome: Case Partly allowed (Granted)
Segment: Ratio
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   [2021] 2 S.C.R. 280
280
NBCC (INDIA) LIMITED
v.
SHRI RAM TRIVEDI
(Civil Appeal No 274 of 2020)
MARCH 08, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Consumer Protection:
Allotment of residential unit by builder – Clause 20 of the
allotment letter stipulated for handing-over of the unit in two and
half years and for compensation at the rate of Rs. 2 per sq. feet of
the unit per month for the period of delay beyond one year form the
stipulated date – Failure to hand-over the possession within the
time agreed upon – Consumer complaint – Consumer Commission
directed the builder to pay compensation with 10% interest pa. on
the amount deposited by the complainant from June 2015 till actual
date of possession i.e. on July 26, 2018 – Consumer Court also
awarded an amount of Rs. 2 lakhs towards loss of rent and
Rs.25,000/- as costs – Appeal to Supreme Court – Held: The
compensation @ Rs. 2/- per sq.ft. was one sided and constitutes an
unfair trade practice – As per clause 20 of allotment letter, the builder
was required to hand-over the possession within three and half years
(including extention due to force majeure) which came to an end by
the end of December 2015 – Therefore, the interest would become
payable from January 1, 2016 – In the light of prevailing market
conditions, rate of interest @ 10% pa. is excessive and therefore,
the rate is fixed at 7% pa. – Also, there was no justification to
award an
amount of Rs. 2 lakhs, once interest for delayed handing-
over of possession was granted – Order of Consumer Commission
modified.
Words and Phrases:
“endeavour” – Meaning of.
Partly allowing the appeal, the Court
HELD: 1. Clause 20 of the letter of allotment provides that
the appellant shall “endeavour” to complete the construction of
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the dwelling unit within two and a half years from the date of the
letter of allotment. The expression ‘endeavour’ meant that the
appellant would make an earnest effort to hand over possession
by that date. Even if the expression does not mean an absolute
commitment to hand over possession on or before a specified
date, this expression has to be read in the context of the entirety
of the clause. To construe the expression as leaving the date for
handing over possession indefinite and at the absolute discretion
of the developer would leave the purchaser at the mercy of the
builder. Clause 20 must be construed to require the builder to
make all reasonable efforts to comply with the duty to hand over
possession by the stipulated date. The burden would lie on the
developer to explain the steps taken to comply with the
contractual stipulation. Clause 20 envisages that, save and except
for delay on account of force majeure, the appellant would pay
compensation at the rate of Rs 2 per sq ft of the super area of the
dwelling unit per month for the period of delay beyond one year
from the stipulated date. It stipulates that compensation would
be payable after four years (plus a valid extension due to force
majeure) from the date of allotment. The above condition would
indicate that beyond a period of one year, from the expiry of two
and a half years, which was envisaged under Clause 20, the
appellant agreed to pay compensation to the flat buyer. The latter
stipulation of four years is incongruous, because previously, a
period of one year beyond the stipulated period of 2.5 years is
fixed, beyond which compensation becomes payable. This
indicates that three and a half years was by all accounts the period
for handing over possession beyond which the purchaser was
entitled to compensation. [Para 7][287-A-F]
2. The NCDRC was justified in taking the view that the
condition in the allotment of payment of compensation at the rate
of Rs 2 per sq ft is one-sided and constitutes an unfair trade
practice. The letter of allotment is in a standard form. The
purchaser has no option but to sign on the dotted line. On the
other hand, under Clause 16, if the buyer were to delay in the
payment of any instalment, a liability to pay simple interest at the
rate of 12% per annum is attracted. Clause 20, in other words, is
NBCC (INDIA) LIMITED v. SHRI RAM TRIVEDI
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not even-handed. While, on the one hand, it contemplates only
compensation at the rate of Rs 2 per sq ft in the event that there
is a delay on the part of the appellant, the buyer is required to
pay a substantially higher rate of interest (12%) for any delayed
payment on his part. [Para 8][290-B-D]
Pioneer Urban Land and Infrastructure Limited v.
Govindan Raghavan (2019) 5 SCC 725 : [2019] 5
SCR 1169; Wg. Cdr. Arifur Rahman Khan and Aleya
Sultana & Ors. v. DLF Southern Homes Pvt Ltd. 2020
(16)  SCC 512 – relied on.
3. As the facts of the present case indicate, the period of
two and a half years, which was stipulated under Clause 20 of the
letter of allotment, came to an end at the end of December 2014.
Allowing thereafter for an additional period of one year, the
extended period would come to an end by the end of December
2015. The NCDRC granted interest at the rate of 10% with effect
from July 2015. While the NCDRC is justified in directing the
payment of interest, the direction should be modified in two
respects, firstly, as regards the date from which interest would
become payable and, secondly, as regards the rate of interest. As
regards, the date on which interest would become payable, having
regard to the one year period which is stipulated, beyond two
and a half years from the original period under Clause 20, interest
would become payable from 1 January 2016. Secondly, insofar as
the rate of interest is
concerned, the interest should be fixed at
7% per annum instead and in place of 10% which has been
awarded by the NCDRC. Interest at the rate of 10% is excessive,
in light of prevailing market conditions. The appellant shall pay
simple interest to the respondent at the rate of 7% per annum
from 1 January 2016 until 26 July 2018 which is the date on which
possession was handed over to the respondent. [Paras 9 and
13(i)][290-D-G; 292-C-D]
Central Bank of India v Ravindra (2002) 1 SCC 367 :
[2001] 4  Suppl.  SCR  323 – relied on.
4. Once the NCDRC awarded interest for the delayed
handing over of possession, there would be no justification to
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award an additional amount of Rs 2,00,000. The direction in regard
to the payment of an amount of Rs 2,00,000 towards loss of rent
shall stand set aside. [Paras 10 and 13 (ii)][290-G-H; 292-D-E]
5. The plea of the appellant that there was a delay on the
part of the respondent in paying the fifth instalment does not
merit acceptance. In the present case, it is evident that the
appellant itself was not in a position to hand over possession of
the dwelling unit by the end of December 2014. Hence, the
requirement of paying the penultimate instalment in September
2014 must be looked at from that perspective. [Para 11]
[291-A-C]
6.  Similarly, there is absolutely no substance in the force
majeure defense. The appellant has alleged that a dispute with
the contractor over termination and a boundary wall dispute with
neighbouring landowners constituted a force majeure condition
under Clause 20 of the allotment letter. The appellant, being an
experienced developer, must be conscious of routine delays
caused by business exigencies. This would not frustrate the
contract or absolve the appellant of the obligations assumed under
the terms of the agreement. [Para 12][291-C-E]
DLF Home Developers Ltd v. Capital Greens Flat Buyers
Association [2021] 5 SCC 537– relied on.
Case Law Reference
[2019] 5 SCR 1169 
relied on
Para 8
2020 (16) SCC 512
relied on
Para 8
[2001] 4 Suppl. SCR 323
relied on
Para 9
[2021] 5 SCC 537
relied on
Para 12
CIVIL APPELLATE JURISDICTION : Civil
Appeal No. 274 of
2020
From the Judgment and Order dated 20.09.2019 passed by National
Consumer Disputes Redressal Commission in CC No. 84/2017
Kiran Kumar Patra, Adv. for Appellant.
Nitish Banka, Ammet Singh, Ms. Pareena Swarup, Ms. Nida
Khana, K. P. Singh and Praveen Swarup Advs. for Respondent.
NBCC (INDIA) LIMITED v. SHRI RAM TRIVEDI
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The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. Admit.
2. This appeal arises from a judgment of the National Consumer
Disputes Redressal Commission1 dated 20 September 2019.
3. In 2012, the appellant floated a group housing project at Sector
89, Gurgaon. An advertisement was issued, inviting prospective flat
buyers. The respondent submitted an application on 14 March 2012 for
the allotment of a dwelling unit in the project described as “NBCC
Heights”. The terms and conditions for allotment were set out in a standard
form. Instalments towards the purchase price were payable under a
time-linked plan. An allotment letter was issued to the respondent on 30
June 2012 for dwelling unit F-402 in the project. The terms of allotment
envisaged that the appellant would “endeavour” to hand over possession
within two and a half years from the date of allotment. Clause 20 provides
as follows:
“20. Subject to the terms of this Application and the Agreement
including but not limited to timely payment of the Total Price, stamp
duty and other charges due and payable according to the payment
plan applicable to the Applicant or as per demand raised by NBCC
and the Applicant complying with all the terms and conditions of
the Application, NBCC shall endeavor to complete the
construction of the Dwelling Unit within 2 ½ (two years and
six months) from the date of allotment letter. NBCC on
obtaining certificate
of occupation and / or use from the competent
authorizes shall offer the Dwelling Unit to the Applicant for his /
her occupation & use and subject to the applicant having complied
with all the terms and conditions of the agreements.
In the event of the Applicant failure to clear all the
outstanding dues including interest, if any and / or takeover
/ occupy the Dwelling Unit within 30 days from the date of
intimation in writing by NBCC, then the same shall lie at
the Applicant’s risk and cost and the Applicant shall be liable
to pay a compensation to NBCC (for maintaining the
complex) @ Rs. 2/-per sq. ft. of the super area per month
for the entire period of such delay. This compensation shall be
1 “NCDRC”
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in addition to the other dues / claims of interest etc. as per terms
of sale / allotment.
The applicant agrees that if however the completion of the said
Complex is delayed due to force majeure (such as acts of
god or the public enemy, expropriation, compliance with
any order or request of government authorizes, act of war,
rebellions, sabotage, fire, floods illegal strikes, or riots etc.)
then NBCC shall be entitled to extension of time for
delivery of possession of the Dwelling Unit. NBCC agrees
to pay to the allottee and subject to the applicant not being in
default under any terms of this Application/ agreement
Compensation @ Rs. 2/- per sq ft of the use super area of the
Dwelling Unit per month for the period of such delay beyond One
year (plus valid extend period due to force majeure reasons) from
the stipulated date of completion of the complex. Thus the
compensation, if any shall be payable only after four years plus
valid extension due to force majeure reasons from date of
alIotment. The adjustment of such compensation shall be done
only at the time of execution of conveyance deed of the Dwelling
Unit.”
(emphasis supplied)
4. In January 2017, the respondent instituted a consumer complaint
before the NCDRC2 since possession of the unit had not been handed
over. The appellant obtained an occupation certificate from the Town
and Country Planning Department of Haryana on 19 July 2017. Upon
receiving the occupation certificate, the appellant issued a
notice to
allottees on the same day, informing them of the receipt of the occupation
certificate and requesting them to clear all their dues before taking
possession. A letter of possession was issued to the respondent on 9
February 2018. The respondent made part payment towards the fifth
and sixth instalments on 28 February 2018 and the balance payment on
6 March 2018. Possession was eventually handed over to the respondent
on 26 July 2018 against an indemnity, as directed by the NCDRC in its
order dated 6 June 2018. The NCDRC, in its impugned order dated 20
September 2018, directed the appellant to pay compensation computed
at 10% per annum on the amount deposited by the respondent from
June 2015 till the actual date of possession. In addition to this, the
2 Consumer Case No 84 of 2017
NBCC (INDIA) LIMITED v. SHRI RAM TRIVEDI
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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respondent was awarded an amount of Rs 2,00,000 towards loss of rent
and costs of Rs 25,000. Time for payment was fixed at four weeks from
the date of receipt of a copy of the order, failing which interest was to be
payable at 12%.
5. The submissions which have been urged on behalf of the
appellant are that:
(i)
The respondent had been allotted a residential unit under a
time-linked plan which envisaged the making of payments
in accordance with a prescribed schedule. While the first
four instalments were paid on time, there was a delay in
paying the fifth instalment which was due on September 30
2014, while the final instalment was payable on the issuance
of the letter of possession;
(ii)
Since the respondent had delayed in the payment of the
fifth instalment, there was no reason or justification to award
interest;
(iii)
The appellant committed that it would “endeavour” to
complete the project within two and a half years of the
date of allotment and there was no unconditional
commitment for delivery by a specific date;
(iv)
Clause 20 stipulated compensation at the rate of Rs 2 per
sq ft of the super area; and
(v)
The appellant was entitled to the benefit of supervening
force majeure conditions.
6. The NCDRC rejected the submission that the appellant had
only agreed to “endeavour” to provide possession within two and a half
years of the date of allotment. It held that even if time is not the essence
of the contract,
substantial reasons have to be furnished by the developer
for not handing over possession in terms of the date agreed in the letter
of allotment. The NCDRC computed the period of two and a half years
from the month of June 2012 when the letter of allotment was issued
and, thus, concluded that possession ought to have been delivered by
December 2014. Giving the appellant a further grace period of six months,
it directed the payment of interest at 10% per annum from July 2015 till
the actual date on which possession was handed over. The correctness
of the decision falls for determination in the backdrop of the submissions
recorded earlier.
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7. Clause 20 of the letter of allotment provides that the appellant
shall “endeavour” to complete the construction of the dwelling unit within
two and a half years from the date of the letter of allotment. The
expression ‘endeavour’ meant that the appellant would make an earnest
effort to hand over possession by that date. Even if the expression does
not mean an absolute commitment to hand over possession on or before
a specified date, this expression has to be read in the context of the
entirety of the clause. To construe the expression as leaving the date for
handing over possession indefinite and at the absolute discretion of the
developer would leave the purchaser at the mercy of the builder. Clause
20 must be construed to require the builder to make all reasonable efforts
to comply with the duty to hand over possession by the stipulated date.
The burden would lie on the developer to explain the steps taken to
comply with the contractual stipulation. Clause 20 envisages that, save
and except for delay on account of force majeure, the appellant would
pay compensation at the rate of Rs 2 per sq ft of the super area of the
dwelling unit per month for the period of delay beyond one year from
the stipulated date. It stipulates that compensation would be payable
after four years (plus a valid extension due to force majeure) from the
date of allotment. The above condition would indicate that beyond a
period of one year, from the expiry of two and a half
years, which was
envisaged under Clause 20, the appellant agreed to pay compensation to
the flat buyer. The latter stipulation of four years is incongruous, because
previously, a period of one year beyond the stipulated period of 2.5 years
is fixed, beyond which compensation becomes payable. This indicates
that three and a half years was by all accounts the period for handing
over possession beyond which the purchaser was entitled to
compensation.
8. The NCDRC held that the condition in the allotment of payment
of compensation at the rate of Rs 2 per sq ft is one-sided and constitutes
an unfair trade practice. In Pioneer Urban Land and Infrastructure
Limited v. Govindan Raghavan3, a two-judge bench of this Court
considered a similar agreement where there was a delay on the part of
the Builder. This Court upheld the NCDRC’s award of compensation at
the rate of 10 per cent per annum, instead of the contractually stipulated
rate by holding the following:
3 (2019) 5 SCC 725
NBCC (INDIA) LIMITED v. SHRI RAM TRIVEDI
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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“6.8. A term of a contract will not be final and binding if it is
shown that the flat purchasers had no option but to sign on the
dotted line, on a contract framed by the builder. The contractual
terms of the agreement dated 8-5-2012 are ex facie one-sided,
unfair and unreasonable. The incorporation of such one-sided
clauses in an agreement constitutes an unfair trade practice as
per Section 2(1)(r) of the Consumer Protection Act, 1986 since it
adopts unfair methods or practices for the purpose of selling the
flats by the builder.”
A two judge bench of this Court in Wg. Cdr. Arifur Rahman
Khan and Aleya Sultana & Ors. v. DLF Southern Homes Pvt Ltd
(now known as Begur OMR Homes Pvt Ltd)4 followed the decision
in Pioneer Urban in interpreting an Apartment Buyers’ Agreement that
was, inter alia, breached by the Developer on the ground of a gross
delay. This Court noted:
“22 The only issue which then falls for determination is whether
the flat buyers in these circumstances are constrained by the
stipulation contained in clause 14 of ABA providing compensation
for delay at the rate of Rs 5 per square feet per month. In assessing
the legal position, it is necessary to record that the ABA is clearly
one-sided. Where a flat purchaser pays the instalments that are
due in terms of the agreement with a delay, clause 39(a) stipulates
that the developer would “at its sole option and discretion” waive
a breach by the allottee of
failing to make payments in accordance
with the schedule, subject to the condition that the allottee would
be charged interest at the rate of 15 per cent per month for the
first ninety days and thereafter at an additional penal interest of 3
per cent per annum. In other words, a delay on the part of the flat
buyer attracts interest at the rate of 18 per cent per annum beyond
ninety days. On the other hand, where a developer delays in
handing over possession the flat buyer is restricted to receiving
interest at Rs 5 per square foot per month under clause 14 (which
in the submission of Mr Prashant Bhushan works out to 1-1.5 per
cent interest per annum). Would the condition which has been
prescribed in clause 14 continue to bind the flat purchaser
indefinitely irrespective of the length of the delay? The agreement
stipulates thirty-six months as the date for the handing over of
4 Civil Appeal No 6239 of 2019
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possession. Evidently, the terms of the agreement have been
drafted by the developer. They do not maintain a level platform as
between the developer and purchaser. The stringency of the terms
which bind the purchaser are not mirrored by the obligations for
meeting times lines by the developer. The agreement does not
reflect an even bargain….
24 A failure of the developer to comply with the contractual
obligation to provide the flat to a flat purchaser within a
contractually stipulated period amounts to a deficiency. There is a
fault, shortcoming or inadequacy in the nature and manner of
performance which has been undertaken to be performed in
pursuance of the contract in relation to the service. The expression
“service in Section 2 (1) (o) means a service of any description
which is made available to potential users including the provision
of facilities in connection with (among other things) housing
construction. Under Section 14(1)(e), the jurisdiction of the
consumer forum extends to directing the opposite party inter alia
to remove the deficiency in the service in question. Intrinsic to the
jurisdiction which has been conferred to direct the removal of a
deficiency in service is the provision of compensation as a measure
of restitution to a flat buyer for the delay which has been
occasioned by the developer beyond the period within which
possession was to be handed over to the purchaser. Flat
purchasers suffer agony and harassment, as a result of the
default
of the developer. Flat purchasers make legitimate assessments in
regard to the future course of their lives based on the flat which
has been purchased being available for use and occupation. These
legitimate expectations are belied when the developer as in the
present case is guilty of a delay of years in the fulfilment of a
contractual obligation. To uphold the contention of the developer
that the flat buyer is constrained by the terms of the agreed rate
irrespective of the nature or extent of delay would result in a
miscarriage of justice. Undoubtedly, as this court held in Dhanda,
courts ordinarily would hold parties down to a contractual bargain.
Equally the court cannot be oblivious to the one-sided nature of
ABAs which are drafted by and to protect the interest of the
developer. Parliament consciously designed remedies in the CP
Act 1986 to protect consumers. Where, as in the present case,
there has been a gross delay in the handing over of possession
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beyond the contractually stipulated debt, we are clearly of the
view that the jurisdiction of the consumer forum to award just and
reasonable compensation as an incident of its power to direct the
removal of a deficiency in service is not constrained by the terms
of a rate which is prescribed in an unfair bargain.”
In adverting to the facts of this case, the NCDRC was justified in
taking the view that the condition in the allotment of payment of
compensation at the rate of Rs 2 per sq ft is one-sided and constitutes an
unfair trade practice. The letter of allotment is in a standard form. The
purchaser has no option but to sign on the dotted line. On the other hand,
under Clause 16, as noted by the NCDRC, if the buyer were to delay in
the payment of any instalment, a liability to pay simple interest at the
rate of 12% per annum is attracted. Clause 20, in other words, is not
even-handed. While, on the one hand, it contemplates only compensation
at the rate of Rs 2 per sq ft in the event that there is a delay on the part
of the appellant, the buyer is required to pay a substantially higher rate
of interest (12%) for any delayed payment on his part.
9. As the facts of the present case indicate, the period of two and
a half years, which was stipulated under Clause 20 of the letter of
allotment, came to an end at the end of December 2014. Allowing
thereafter for an additional period of one year, the extended period would
come to an end by the end of December 2015. The NCDRC granted
interest at the rate of 10% with effect from July 2015. In our view, while
the NCDRC is justified in directing the payment of interest, the direction
should be modified in two respects, firstly, as regards the date from
which interest would become payable and, secondly, as regards the rate
of interest. As regards, the date on which interest would become payable,
having regard to the one year period which is stipulated, beyond two and
a half years from the original period under Clause 20, interest would
become payable from 1 January 2016. Secondly, insofar as the rate of
interest is concerned, the interest should be fixed at 7% per annum instead
and in place of 10% which has been awarded by the NCDRC. Interest
at the rate of 10% is excessive, in light of prevailing market conditions.5
10. The NCDRC has, in addition to the award of interest, granted
compensation of Rs 2,00,000 for loss of rent. Once the NCDRC awarded
interest for the delayed handing over of possession, there would be no
justification to award an additional amount of Rs 2,00,000.
5 Central Bank of India v Ravindra, (2002) 1 SCC 367 para 39
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11. The submission of the appellant that there was a delay on the
part of the respondent in paying the fifth instalment does not merit
acceptance. The fifth instalment was payable in the month of September
2014, while the final instalment, as learned counsel submitted, was payable
at the time of the issuance of the letter of possession. This was to take
place in December 2014. In the present case, it is evident that the appellant
itself was not in a position to hand over possession of the dwelling unit
by the end of December 2014. Hence, the requirement of paying the
penultimate instalment in September 2014 must be looked at from that
perspective. Admittedly, as the NCDRC has noticed, the appellant has
paid an amount of over Rs one crore, out of the total sale consideration
of Rs 1,00,54,478.
12.  Similarly, there is absolutely no substance in the force majeure
defense. The appellant has alleged that a dispute with the contractor
over termination and a boundary wall dispute with neighbouring
landowners constituted a force majeure condition under Clause 20 of
the allotment letter. We find no merit in this argument as the appellant,
being an experienced developer, must be conscious of routine delays
caused by business exigencies. This would not frustrate the contract or
absolve the appellant of the obligations assumed under the terms of the
agreement. Similar delays were rejected as force majeure grounds by a
three-judge bench of this Court in DLF Home
Developers Ltd v.
Capital Greens Flat Buyers Association6 where the Court noted:
“6. At the outset, we must deal with the force majeure defence.
The NCDRC has carefully evaluated the basis on which the
defence was set up and has come to the conclusion that there is
no cogent evidence in regard to the nature of the delay and the
reasons for the delay in the approval of the building plans. Quite
apart from this finding of fact, it is evident that a delay in the
approval of building plans is a normal incident of a construction
project. A developer in the position of the appellant would be
conscious of these delays and cannot set this up as a defence to a
claim for compensation where a delay has been occasioned beyond
the contractually agreed period for handing over possession. As
regards the stop work orders, there is a finding of fact that these
were occasioned by a succession of fatal accidents which took
place at the site and as a result of the failure of the appellant to
6 Civil Appeal Nos 3864-3889 of 2020
NBCC (INDIA) LIMITED v. SHRI RAM TRIVEDI
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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follow safety instructions. This is a pure finding of fact. There is
no error of law or fact. Hence, we find no substance in
the force majeure defence.”
13. We accordingly uphold the principal findings of the NCDRC
in regard to the entitlement of the respondent to receive compensation
for the delayed handing over of possession. The force majeure defense
raised by the appellant was justifiably rejected by the NCDRC. The
respondent was entitled to be compensated for the delay of the appellant
for which an appropriate direction for interest is necessary. However,
as indicated above, the order of the NCDRC in regard to the rate of
interest and the date from which it becomes payable has to be modified.
For this purpose, we allow the appeal partially in the following terms:
(i)
Instead and in substitution of the direction issued by the
NCDRC, the appellant shall pay simple interest to the
respondent at the rate of 7% per annum from 1 January
2016 until 26 July 2018 which is the date on which possession
was handed over to the respondent;
(ii)
The direction in regard to the payment of an amount of Rs
2,00,000 towards loss of rent shall stand set aside having
regard to the compensation which has been granted to the
respondent in terms of (i) above; and
(iii)
The appellant shall cooperate in completing all necessary
formalities for completing the documentation (including
formalities for registration) in respect of the dwelling
unit
which has been sold to the respondent, if not already
completed, within a period of one month from the date of
receipt of a certified copy of this order. The payment of
interest in terms of (i) above shall also be effected within
one month.
14. The appeal is disposed of in the above terms. No order as to
costs.
15. Pending application, if any, stands disposed of.
Kalpana K. Tripathy
Appeal partly allowed.