BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.468 OF 2013 AGAINST C.C.NO.47 OF 2012 DISTRICT FORUM RANGA REDDY
Between:
Thota Chandrasekhara Reddy
Flat No.209, “Sri Krishna Ambhas”
Apartments, Near Janapriya Utopia
Hyderguda, Attapur, R.R.District
Hyderabad-048
Appellant/complainant
A N D
1. Sri Col (Retd) Sunil Kumar
Chief Executive Officer, (CEO)
Central Government Employees
Welfare Housing Organization (CGEWHO)
6th Floor, A Wing, Janpath Bhavan, Janpath
New Delhi-001
2. Sri M.K.Maity,
Deputy Director (Administration)
Public Grievance Officer, 2 & CPIO (Under RTI Act ’05)
Central Government Employees
Welfare Housing Organization (CGEWHO)
6th Floor, A Wing, Janpath Bhavan, Janpath
New Delhi-001
3. Sri Kailash Chandra Ghai
Project in Charge
CGEWHO Housing Project
Hyderabad Phase III, Near Sun City
Hydershakote Village, Golkonda Post
R.R.District, Hyderabad-008
Respondents/opposite parties
Counsel for the Appellant Party in Person
Counsel for the Respondents M/s J.Prabhakar
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
&
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
THURSDAY THE THIRTY FIRST DAY OF OCTOBER
TWO THOUSAND THIRTEEN
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The unsuccessful complainant is the appellant. The brief facts as seen from the complaint are that on 28.2.2006 the appellant applied for the Dwelling Unit of the scheme launched by the respondent. On 10.05.20067 the respondents allotted Type A dwelling unit admeasuring 637 sq.feet after receiving the initial amount of `25,000/- on 27.02.2006. The appellant paid `6,76,000/- as on 3.11.2010 towards part payment of sale consideration. In total the appellant paid `7,01,000/- to the respondents towards part payment of sale consideration. As per the terms, the balance amount has to be made in instalments.
2. As per the terms and conditions of the brochure, the construction work has to be completed within 30 months from the date of allotment i.e. from 5.10.2006. Even after lapse of five years, the project was not yet completed. The appellant in need of financial assistance for the treatment of cardiac problem and rheumatoid arthritis for himself and his wife, requested the respondent through letter dated 9.3.2011 for refund of the amount paid by him. The respondent refunded the amount of `6,07,310/- after deducting `30,690/- towards withdrawal charges from the first instalment. The appellant requested the respondent for payment of interest on `7,01,000/- and withdrawal charges of `30,690/- and as the respondents did not pay the same, filed the complaint before the District Forum.
3. The respondents resisted the case contending that their organization is a society established to promote, control and coordinate the development of housing schemes at selected places all over India on “no profit – no loss” basis as a welfare measure. The respondents announced the scheme on 31.12.2005 with 28.02.2006 as last date for submitting application. The appellant submitted his application and the respondents allotted Type-A dwelling Unit in the project to him. The appellant paid a total amount of `7,01,000/- to the respondents towards part payment of the scheme. Thereafter, the appellant submitted his withdrawal letter on 9.3.2011 to the respondent no.1 to refund the amount of `7,01,000/- as he is in need of financial assistance and the respondents refunded the amount of `6,70,310/- on 21.10.2011 after deducting the withdrawal charges of `30,690/- from `7,01,000/-. As the appellant has not made application within specified time as per rules from the date of allotment from 5.10.2006, he is not entitled for any interest for the amount. The delay in completing the construction work was due to Telengana agitation and non-availability of labour for the construction work in the Hyderabad City. There is escalation of the prices for construction work which is approximately 15%. As per the guidelines of the scheme, “if any allottee wants to withdraw from this scheme the organization will not charge any withdrawal charges and from the amount deposited by the beneficiary and the same will be refunded along with interest @ 6.5% as the special case. But the option will remain open for 45 days from the date of issue the letter dated 5.10.2006”. The appellant could not avail the amount within prescribed time in terms of the letter dated 10.05.2006 and submitted his letter on 9.3.2011 for withdrawal of the membership from the scheme. Hence, the respondents prayed for dismissal of the complaint.
4. The appellant filed his affidavit and the documents, EXs.A1 to A23. On behalf of the respondents, its Project Manager filed his affidavit and did not chose to file any documents. During pendency of the appeal the appellant filed FAIA NO.2688 of 2013 which was allowed and Exs.A24 to A28 were marked. On FAIA 2435 of 2013 filed by the respondents being allowed, Ex.B1 is marked.
5. The District Forum dismissed the complaint on the premise that appellant did not submit the withdrawal application for refund of the amount within the prescribed time i.e. or before 23.01.2011.
6. Feeling aggrieved by the order of the District forum, the complainant filed the appeal contending that the respondents did not complete the project within the prescribed time and that a delay of one and half months in applying for withdrawal after the offer was made for justifiable reasons and as such the respondents cannot deduct 15% from the amount paid by the appellant.
7. The appellant filed written and additional written arguments. The counsel for the respondents filed written arguments.
8. The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?
9. The facts beyond any dispute are that the appellant applied for 620 sft flat in phase III Hydershahkote village venture launched by the respondents’ organisation. The learned counsel for the respondents submitted that deduction of 15% from the amount paid by the appellant was in accordance with the terms of the application form. A perusal of the terms of the application form indicates forfeiture of the amount to the extent of 15% from the amount paid by the appellant in case the appellant opted for withdrawal from the scheme after making payment of final instalment.
10. Deduction of 15% of the amount while refunding the amount paid by the appellant is stated to have been made on the premise of the respondent is a self-financing corporation which does not obtain any funds from the government for implementation of its projects and in case the allottee withdraws from the scheme after payment of the entire consideration of the flat, the respondents will be put to severe liquidity crunch and financial constraints for several months before it can find another buyer for the flat. The respondent supported deduction of the amount on the ground that the scheme introduced by it is a social welfare scheme meant exclusively for benefit of Central Government employees and the venture is non-commercial one where flats are sold on cost basis and that the clause imposing withdrawal charges was incorporated in the application form to discourage applicants from withdrawing from the scheme midway.
11. The appellant has submitted that the respondent would charge interest at 15% per annum for late payment of instalments and in case the allottee opted for change of category i.e., from lower category to higher category, the respondent would charge interest on differential amount. He has contended that the respondent in the manner would collect more than holding cost by way of imposing interest and as such irrespective of the time lag, before the respondent found an alternative buyer the respondent is not loser as it would collect interest from the respective due dates of the instalments. He has submitted that he paid the instalments as per the payment schedule and the respondent failed to perform its duty of completing the project as per the schedule.
12. The brochure issued by the respondent goes to show that commencement of construction would take place during the end of the year 2006 and it was expected to be completed within 30 months thereafter. A rider was placed as to the time of commencement of construction giving relaxation of the time to the respondent and it reads “However, the commencement of construction is relaxed to the approval of plans by the Hyderabad Urban Development Authority”. Thus, in all probability the commencement of construction can be expected if not by the end of the year 2006 it can be considered by the end of year 2007.
13. The respondent addressed letter dated 9.12.2010 informing the appellant that due to injunction order granted by the District Court at Hyderabad, construction of the venture could not be taken up in full swing. The respondent attributed abnormal monsoon, Telengana agitation and labour unrest as the causes for delay in construction of the venture. It is mentioned in the letter:
2. Reason(s) for delay in the execution of project:
(i) CGEWHO could not take up the construction in full swing due to injunction from the Hon’ble District Court by a neighbouring plot owner, although the plan(s) were approved by Hyderabad Urban Development Authority in April’07. After obtaining necessary clearance from the Hon’ble High Court at Hyderabad, works were started from Jan ’08. Further, there was a requirement for provisioning of basement to meet the parking norms of Hyderabad Urban Development Authority. Accordingly it took almost one year to complete this work though not anticipated while formulating the scheme. The reason for such a long period to construct the basement was because the project area is covered under blasting prohibited zone and the rocky strata was to be excavated only by chiselling.
(ii) During the last tow years the site at Hyderabad experienced abnormal monsoon which resulted in stoppage of works off and on. Further, various agitations at Hyderabad, namely, on Telangana issue and labour unrest also cropped up which lead to retarding the progress of work substantially.
14. Except the stay order stated to have been granted by the District Court the other causes such as Telangana agitation and labour unrest are not acceptable to show that the construction of venture could not be completed in prescribed time due to reasons beyond the control of the respondent. As per the terms and conditions of the scheme construction work has to be commenced in the month of October 2006 and even after November 2011 the project was not yet completed.
15. The respondent forwarded a proposal for withdrawal of the member from the scheme in terms of which the respondent was prepared to pay interest at 6.5% per annum on the amount paid by the allottees and the scheme was meant for prescribed period of 45 days from 9.12.2010. The appellant submitted his application for withdrawal on 9.3.2011 i.e., after the prescribed period of 45 days and the respondent refunded an amount of `6,70,310/- after deducting cancellation charges @ 15% on first instalment of `30,680/-.
16. The appellant, during pendency of the appeal filed copies of prescriptions Exs.A24 to A28 showing he and his wife being fell ill during the period the scheme was in vogue. The prescriptions do not support the case of the appellant as he submitted application form with the knowledge that he would be entitled to refund of the amount without withdrawal charges as also interest @ 6.5% per annum on the amount paid by him provided he submitted his application form within the stipulated period. It is true, the appellant has not opted for withdrawal from the scheme within the prescribed period. The District Forum opined that the appellant is not entitled to any amount in the absence of his establishing deficiency in service on the part of the respondent.
17. The respondent offered the withdrawal scheme owing to its inability to commence and complete construction of the venture within stipulated period. The respondent stretched the time for commencement and completion of construction of the venture over a period of 7 years and it could have offered the appellant and the other allottees, the withdrawal scheme at the earliest point of time so that the allottees would opt for an alternative flat. On account of inordinate delay in completion of construction, the appellant had to withdraw his membership from the scheme and but for filing the application for withdrawal after a period of one and half months from 23.1.2011 which is the last date prescribed for submitting option for withdrawal, the appellant was denied withdrawal benefit of interest @ 6.5% per annum as also he was deprived of 15% the amount paid by him.
18. It is not that the appellant failed to pay any instalments or the entire consideration to the respondent. The contention of the respondent is that it is an organization working on “no profit no loss basis” may be justifiable in other cases where the allottees failed to pay the sale consideration of the flat as per the payment schedule. The respondent offered the withdrawal scheme and not the appellant who did not come forward on his own accord to opt for withdrawal from the scheme. As such the respondent cannot contend that owing to withdrawal of the appellant of his membership midway the scheme, the respondent was compelled to lose interest and wait to find another purchaser.
19. The terms and conditions of the scheme are applicable and are binding on the appellant and the respondent as also the terms of withdrawal scheme. However, a delayed option for withdrawal by the appellant would not wipe out the impression or the deficiency in service on the part of the respondent in its failure complete the construction of the venture within the prescribed time or within a reasonable period of time thereafter. The respondent ought to have considered the plea of the appellant that he is entitled to interest on the amount paid by him and not liable to be penalized to pay cancellation charges. This Commission does not dwell on deviation of the terms of the scheme on the part of the appellant to hold him entitled to cancellation charges as also interest on the amount paid by him.
20. The respondent being an organization enacted for the benefit of central government employees ought to have taken into consideration of the hardship of the appellant who had to take back the amount paid by him only due to the delay caused in completion of construction. The appellant had suffered financially as his amount was retained by the respondent till 21.10.2011 and he might have suffered mental tension on account of the attitude of the respondent. Further, the appellant was deprived of the withdrawal scheme benefit may be due to some lapse on his part in submitting the application beyond the stipulated period. Viewed from any angle there has been deficiency in service on the part of the respondent and we are of the considered view that a sum of `20,000/- would be just and reasonable to compensate the appellant on all counts.
21. In the result the appeal is allowed setting aside the order of the District Forum. Consequently the complaint is allowed directing the respondents/opposite parties to pay `20,000/- together with costs of `3000/-. Time for compliance four weeks failing which the amount of `20,000/- shall carry interest @ 9% per annum.
Sd/-
MEMBER
Sd/-
MEMBER
Dt.31.10.2013
కె.ఎం.కె*
