DOF.26.7.2006

DOO.6/7/2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:               Member

Dated this,   the  6^th   day of July   2010

CC.174/2006

1.  N.Abdurrahim,

    Senior Journalist,

    D4-47, Kairali Nagar Housing colony,

    Thottada,Kannur

2.  Nafeesa

3.  Abdul Rauf

4.  Abdul Gafoor

5.  Juvairiya Gouhar

6.  Qudsiya Jouwhar

7.  Rubiya Sadika

8.  Nooriya Shoukath                                                   Complainants

9.  Foumiya Mubaraka

10.Samiya Sidheeka

     All are residing at D4-47, Kairali Nagar Housing colony,

     Thottada

(Rep. by Adv.M.K.Santhosh)

1.Chairman,

   Kerala State Housing Board,

   Thiruvananthapuram.

2. The asst.secretary,

   O/o. the Executive Engineer,

    Kerala State Housing Board,                                    Opposite Parties

    Kannur Division,

    Kannur 2.

3. Executive Engineer,

    Kerala State Housing Board,

    Kannur Division, Kannur 2.

O R D E R

Smt.K.P.Preethakumari, Member

            This is a complaint filed under sectin12 of consumer protection act for an order directing the opposite parties to execute the sale deed in respect of the plot N o.04-47 with a house in Kairali Nagar Housing Colony in favour of the complainants and to pay Rs.4,00,000/- as compensation.

            The complainant is Mr.N.Abdurrahim, S/o.Hamza and after his death his legal heirs’ supplemental complainants’ No. 2 to 10 are imp leaded. The complainants contended that the 1t complainant had entered into an agreement with Kerala State Housing Board on 7.6.88 agreeing to purchase a plot NO.D4.47 with house in Kairali Nagar Housing colony under working journalist quota having 200square meter i.e. 4.94 cent. The total price of the land and house was fixed as Rs.1,56,509/- and the complainant had paid Rs.63498/- as  initial deposit and at the time of entering into the agreement government had given Rs.20,000/- as subsidy as he was a working journalist so as per clause 6 of the agreement the complainant has to pay only Rs.50,000/- together with interest at 12.5% per annum  in 180 EMI of Rs.618.50 for  15 years and Rs.27,384/- shall be paid in lump immediately after a period of 1 year from the date of agreement with 12.5% interest. But as per clause 5 of agreement it is agreed that the complainant will pay the above said amount to the board in full together with 15% interest per annum in installments and the complainant shall become entitled to get the sale deed for the conveyance of the property with building thereon. It is also agreed that the board is entitled to fix the value of the property as per the enhanced compensation awarded by the courts as per LAR case pending for final disposal. Accordingly the first complainant paid the entire dues as per the agreement and as per the letter issued by Housing board without verifying the account kept by the board. Housing board has agreed that on final disposal of the LAR cases, the land value will be enhanced to the amount equal to the enhanced value of land by the court. and there will not be any other increase in price on building, which is constructed prior to the agreement.

            The complaint had already paid Rs.2, 40,352/- including the amount paid i.e. Rs.95, 508/- during 2^nd month of 2005. This 95.508/- was paid as per the letter of opposite party dated 21.7.04. In this letter the opposite party intimated the complainant that he has to pay Rs/1, 21,658/- as the entire due amount with interest and penal interest and he will get the benefit of OTS If the complainant pays Rs.86, 041/- on or before 5.8.04.and after the payment the 1^st complainant approached opposite parties for getting the deed of conveyance in his name. But opposite party was not ready for the same. The land acquisition case was finally decided during 1993 re-fixing the value of the land as Rs.2500/- per cent and is the duty of the opposite party to inform the same to the complainant, but opposite parties failed to do so. More over the opposite party has not been carried out any development work to the entire housing scheme after allotting the plot to the complainant. The opposite party has no right to enhance the value of the building, on account of decision in LAR cases; the opposite party is not entitled to receive any interest for the enhanced amount as per LAR cases. ‘There is no justification also on the part of opposite parties for the belated finalization of account of the complainant. But opposite parties issued a letter dt.27.4.05 to the complaint stating that scheme account has been finalized and the complainant has to pay Rs.3, 94,271/- on or before 31.5.05 as land value. ‘the opposite parties had calculated interest on enhanced land value after 1993 and enhance the value of the building which is constructed prior to allotment in the year 1988. The complainant had paid total amount of Rs.2, 40,352/- against the value of land and building.

            The complaint and opposite parties are bound to act as per the terms and conditions of the agreement since the LAR case was disposed off in 1993, opposite parties can claim only the interest up to 1993 and hence the demand notice issued by opposite party is illegal and unsustainable. The highly belated settlement of scheme itself amounts to deficiency of service of opposite parties. Land value can be enhanced in proportionate to the enhancement of compensation to the land allotted to the complainant and he should have been paid the entire enhanced land value in the year 1993, if it was informed in time. The complainant is not responsible for the delayed settlement of account and he has no liability to pay interest after 1993. The opposite parties are not executing the sale deed in faovur of the complainant. The delay caused in executing the sale agreement also amounts to deficiency of service on the part of opposite parties. Due to illegal acts of the opposite parties the complainant has suffered so much hardship and mental agony and the opposite parties are liable to compensate the complainants. Hence this complaint.

            Upon receiving the notices from the Forum, all opposite parties appeared and filed their version.

            The opposite parties admits that the building N o.D4.47 in Thottada housing colony was allotted to the1st complainant under working journalist quota on 29.5.85

For Rs.1, 56,509/.Hire purchase agreement was executed on 7.6.88. They further admits that an initial  deposit of Rs.63,498/- was  done by the complainant an d government subsidy also adjusted. As per H.P agreement an amount of Rs.50, 000/- shall be paid by the complaint together with 12.5% interest in E.M.I of 618.50 from June 1988 onwards. If the complainant fails to remit penal interest at 18% will be charged for delayed payment. An amount of Rs.27, 383/- as the 2^nd initial deposit should be paid in lump with 12.5% interest immediately after 1 year form the date of agreement. The complaint had not remitted the 2^nd initial deposit within the specified time. So he is bound to pay penal interest. As per clause 5 of H.P agreement. Party should pay the tentative cost together with 12.5% per annum in installment. Moreover as per clause 9 and 10 of Hire purchase agreement, party has agreed that board shall be entitled tore fix the final price of property and building taking into account inter alia the enhanced compensation amount ordered by the court in lAR cases and increased cost of development works. It is also agreed that after finalization of the price of property and building by the board, party shall pay to board together with interest at15% per anum in difference between the tentative price and  price finally fixed for the property and  building. As per clause II, the complainant shall be entitled to get a registered sale deed of property and building after payment of all dues in full after satisfying the terms and conditions contained in the agreement. The petitioner is a chronic defaulter and had cleared monthly installment dues only in February 2005. As per Hire purchase remittance records, the complainant has paid an amount of Rs.2,21,518/- including the initial deposit has been adjusted towards principal, interest, penal interest and default interest. Government subsidy of Rs.20, 000/- was also adjusted towards tentative cost.

            The petitioner  defaulted payment of monthly installment despite notices, issued when OTS has been introduced by the board.Letter had  been sent to the party on21.7.04 and the petitioner cleared monthly installment dues availing OTS benefit in February 2005. During February 2005, the complainant only completed payment of tentative cost and interest and hence he is not entitled to get the sale deed as per the H.P agreement conditions. In the Para 5, it is stated that compensation is payable for acquisition of land  of the scheme  fell under provisions of land acquisition and the price of property is purely tentative and is bound to revised later. Though the court has fixed land value as Rs.25o0/- per cent, Board has to deposit 30% solation of enhanced land value, 12% additional compensation from date of notification of award and interest till date of deposit of amount. Cent age value of land calculation covers total land of the scheme inclusive of road, park etc. Hence cent age value of land will be higher than the amount awarded by the court. The Regional Engineer, Kerala state Housing Board, Calicut requested the complainant to remit Rs.32,080/- towards proportionate amount of LAR compensation within 30 days by  a letter dt.19.3.93 but he complainant has not responded to it and there is no delay in finalization of the account of the complainant. On completing the payment a  balance in tentative cost specified in HP agreement is 2/05, individual  amount in respect of PW  allotted to complainant finalized and outstanding balance also intimated by a letter dt.27.4.05. The complainant had been requested by a letter dt.19.3.93 to remit proportionate additional land value due to payment of LAR compensation by board and intimated that the complainant is bound to pay interest on failing to remit the amount within 30 days. Individual account of complainant has been finalized as per the condition of 9 and 10 of HP agreement. Complaint ;is bound to pay proportionate LAR amount due to payment of LAR compensation difference  between tentative price and final price of building and all other dues to board as per final statement of account. The individual account of the complainant was finalized and balance amount as on 31.5.05 was intimated to the complainant dt.27.4.05.The complainant had been intimated the dues in tentative cost as on 8/04 granting OTS benefit vide letter dated 21.7.04, complainant clear dues of tentative cost during February 2005 remitting a sum of Rs.91, 800/- and as per records the 1^st complainant has remitted a sum of Rs.2, 21,518/- towards tentative cost.

            The complainant has agreed to condition 9 and10 of HP agreement, where in it is mutually agreed that board shall be entitled to realize the final price of property and building thereon by board, party shall pay to board together with 15% interest the difference between tentative price and price   finally fixed and party entitled to get registered sale deed only after payment of all dues as per final statement of account. Proportionate additional land value as per the land are allotted to be paid by the complainant consequent on payment of LAR compensation by board as per letter dt.19.3.93, but the complainant ignored the requisition. The complainant is bound to pay interest on the enhanced land value till the loan account is closed and for the balance amount after 1993. There is no deliberate delay or deficiency of service as alleged. The sale deed can be issued only after closing the entire loan amount. Above all the opposite party contended that the forum has no jurisdictions to decide the case since the subject matter is with respect t to immovable property and the complaint is for specific relief. So the above complaint is liable to be dismissed.

            Upon the above contentions the following issues have been raised for consideration:-

1. Whether this Forum has jurisdiction to try the case?

2. Whether there is any deficiency of service on the part of opposite parties?

3. Whether the complainant is entitled to any relief?

4. Relief and cost.

            The evidence consists of the oral testimony of PW1, DW1 and Exts.A1 to A3 and B1 to B7.

Issue No.1

            The case of the complainants is that even though he had paid the entire amount as per the loan agreement executed infavour of the complainant, the opposite party is not ready to execute the sale deed infavour of the complainant. But the opposite party contended that the Forum has no jurisdiction to try the case since the complaint is solely based on the specific relief and the dispute raised by the complainant relates to immovable property. In Lucknow Development Authority Vs. M.K.Gupta, the land mark case in which the Hon’ble apex court held that under section 17, 21,11 and 2((d) and (o) jurisdiction to entertain complaints –goods and services-defect or deficiency in construction and delivery of houses by development authority- complaint regarding use of substandard material or delay in delivery of house cannot be rejected as being not maintainable on ground that goods under the Act meant only movable goods under sale of goods Act and not immovable property. Moreover in Shikar Sahkari Avas Samithi Vs. Praveen Singh, which was reported in 1986-2005 Consumer,            the Hon’ble National Commission held on 17.7.03 that no legal infirmity or jurisdiction on the order of the State commission that a plot was allotted and entire consideration paid and possession taken, and non execution of registration deed and the state commission directed registration in favour of complainant  In another  case “ Baba Construction vs. P.S. Neelakantan, the National Commission held that the order of State Commission is just and proper. In this case state Commission gave direction for execution of sale deed on payment of balance if any and for issuance of occupancy certificate. The case is in hand also has the same prayerand hence we are of the opinion that this Forum has ample jurisdiction to try the case and hence issue No.1 is answered in favour of the complainant.

Issue Nos.2 to 4

            The complainant contended that he has paid a  total sum of Rs.2,40,352/- on different dates, even though as per exhibit A1 agreement he is bound to pay only Rs.1,56,509/- and the opposite party is not willing to register the sale deed in favour of the complainant as agreed. In order to prove his case he has produced Ext.A1 to A3 i.e. photocopy of the agreement dt.7.6.88, A2 is a photocopy of letter dt.21.7.04 issued by opposite party and A3 another letter dt.27.4.05 issued by opposite party. The opposite party has produced documents Ext.B1 to B7 i.e. a letter dt.19.3.93, notice for vacating, letter dt.25.2.91, reply issued by complainant for Ext.B2, revised statement of account dt.15.5.04, true copy of ledger extract and demand notice  for OTS dt.21.7.07.

            As per Ext.A1 agreement the complainant has to pay Rs.63498/- as initial deposit and Rs.27, 384/- with 12.5% interest to be paid immediately after within one year from the date of agreement. The govt. has   sanctioned Rs.20, 000/- as subsidy since he is a working journalist. The   balance amount of Rs.50, 000/- with 12.5% interest has to be paid in 180 E.M.I having Rs.618.5/- per month. The complainant further agreed as per clause 9 of the agreement that the Kerala state Housing Board shall be entitled to re-fix the final price of the propertied the building thereon as described in the schedule hereto, taking into account inter-alia the enhanced compensation awarded by  courts and tribunals, the cost incurred by the board and it predecessor in   interest for  prosecuting such proceedings in courts and tribunals and also the increased cost of development works and amenities undertaken with respect to the scheme after a final settlement of accounts in connection there with       and the party of the second part shall agree to pay any additional amount to be paid due to enhancement of the cost of the building. It is also agreed that the decision of the board infixing the revised price of the property and the building, thereon shall be conclusive and final and the parts of the second part shall not be entitled to question the same. So the complainant is bound to pay the final valuation as calculated by the board. So the complainant is bound to pay

 Rs.32, 080/- on or before 30.4.93. So in total the complainant has a liability  of Rs.50, 000/- with 12.5% interest within 15 years.Rs.27,384/- with 12.5% on or before 7.6.89 and Rs.32, 080/- on or before 30.4.93.

            The complainant has paid an amount of Rs.2, 31,679.5 including the initial payment and the govt. subsidy. The opposite parties admits that the complain t has paid Rs.231679.5. But the complainant contend that he has paid Rs.2, 40,352/-. But the complainant has not produced any document to show that he has paid Rs.8672.5 more than that admitted by the opposite party.

            According to the complainant as per Ext.A2 he is bound to pay only Rs.86041/- as per OTS. But while going through Ext.A2 dt.21.7.04, it is clear that it is issued with respect to the temporary value of the property and it has to be paid on or before 5.8.04. But the complainant has paid the amount during the month of February 2005. So his contention that he has paid the entire amount as per OTS cannot be taken into consideration. It is also not correct to say that the opposite party has not informed the enhanced value as per LAR in time. Ext.B1 shows that the same was intimated to the complainant during March 1993.

            The details of payment made by the complaint with respect to Rs.50, 000/- with 12.5% interest as per 180 EMI is detailed as follows:

Rs.50, 000/- with 12.5% in 180 installment as 618.50 default  interest 18% Total 111330

Date of Agreement 7.6.88

            As per the above calculation, the complainant has paid  Rs.43001.5 as on 25.2.05 more towards the installment of Rs.50,000/- with 12.5% interest. As per Ext.B1 the complainant is bound to pay Rs.32, 080/- towards the enhanced amount as per Ext.A1. So deducting the amount from the already paid amount on 25.2.05 i.e. Rs.43001.5 – 32,080/- = 10921.5 is in balance with the opposite party. But it is evident that the complainant has not paid Rs.27, 384/-, the 3rd installment which is to be paid by the complainant as on 6.6.89. So the complainant has to pay the amount with 12.5% interest.

            According to the above stated calculation Rs.10921.5 paid excess on 25.2.05 can be accounted towards 3rd installment.

            So the complainant has to pay as per the calculation shown below.

The complainant has to pay up to February 2005     27384 X 12.5 x 15    = 51345

                                                                                            100

                                                                                    27384 + 51345          =78729

The amount paid                                   78729 – 10921.5

                                                                                                                     = 67807.5

The amount to be paid from

2005 February up to and inclusive of 2010 June

                         657807.5 X 12.5 X 5 Y 4 M

                                                100

         =42379.69 +

           67807.5

             2825.31

     113012.18               =  113012/-

            So the above calculation shows that the complainant has to pay Rs.113012/- up to and inclusive of June 2010. So it is seen that the complainants has kept the above said amount in arrears without paying the dues. Moreover from the facts of the case it is seen that the complainants is a chronic defaulter of payment of EMI also. So we are of the opinion that there is no deficiency on the part of the opposite party in executing the sale deed in favour of the complainant. But the compliant is bound to pay Rs.113012/- to the board  up to and inclusive of June 2010 and the board is bound to execute the sale deed in faovur of the complaint on such event of payment. There is no order as to cost

In the result, the complaint is partly allowed directing the opposite party to execute the sale deed in favour of the complainants in the event of payment of Rs.113012/- to the Board by the complainants. Opposite party is further directed to issue notice to complainant       within one moth from the date of receipt of this order for want of remitting the amount Rs.113012/- to the Board for the purpose of executing the sale deed, failing which the complainant is entitled to execute the order as per the provisions of Consumer protection Act.

Sd/-                   Sd/-                               Sd/-

                               President            Member                           Member.

APPENDIX

Exhibits for the complainant

A1.Copy of agreement executed by 1st complainant and OP

A2. &A3.Copy of the letter dt.21.7.04 and 27.4.05 issued by OP

Exhibits for the opposite parties

B1.Coppy of the letter dt.19.3.93 sent to complainant No.1

B2.Eviction notice

B3.Evictionnotice dt.25.2.91

B4.Copy of the letter dt.15.3.91 sent to complainant

B5.Statement of Accounts dt.15.5.07.

B6.Copy of ledger extract

B7.Demand notice dt.21.7.04 (one time settlement) sent to complainant

Witness examined for the complainant

PW1.Foumiya Mubaraka

Witness examined for the opposite parties

DW1.K.Babu.

                                                            /forwarded by order/

                                                            Senior Superintendent

Consumer Disputes Redressal Forum, Kannur