Haryana

StateCommission

A/1012/2015

HOUSING BOARD,HARYANA - Complainant(s)

Versus

ASHOK KUMAR AGGARWAL - Opp.Party(s)

RECEIVED FROM NCDRC,NEW DELHI

08 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Remand Appeal No:  1012 of 2015

In First Appeal No.1217 of 2008

Date of Institution:16.07.2008/07.12.2015

Date of Decision: 08.07.2016     

 

1.      Housing Board Haryana through its Estate Manager, Karnal.

2.      Housing Board Haryana, through its Chief Administrator, Panchkula.

                                      Appellants/Opposite Parties

Versus

 

Ashok Kumar Aggarwal s/o late Shri P.C. Aggarwal, Resident of 868, New Housing Board Colony, Karnal.

                             Respondent/complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Present:               Shri A.K. Kansal, Advocate for appellants.

                             None for respondent.

 

                                                   O R D E R

B.M. BEDI, JUDICIAL MEMBER

 

Ashok Kumar Aggarwal-complainant/respondent was allotted LIG House bearing No. 1726, Sector 4-5, Karnal by the Housing Board Haryana-Opposite Party/appellants vide allotment letter No.1915 dated 21.12.1998 (Exhibit O-2) for a tentative cost of Rs.64,100/- besides Rs.12,860/- as E.L.C. The complainant paid Rs.6410/, that is, 10% of the tentative price as Registration Fee alongwith the application form and Rs.13,137/- on account of E.L.C. and other charges. The balance amount was to be paid in monthly instalments of Rs.657/- each over a period of 13 years. The possession of the house was to be given after execution of a Hire Purchase Tenancy Agreement between the complainant and the opposite parties. So, Hire-Purchase Tenancy Agreement (Exhibit O-3) was executed.

2.      The complainant deposited the instalments upto 25.11.1998 and thereafter failed to deposit the remaining instalments. So, the opposite parties issued Show Cause Notice under Section 51(1) of the Haryana Housing Board Act, 1971, vide memo No.2244-45 dated 19.05.2004 (Exhibit O-4) but the complainant did not pay any heed. The opposite parties issued eviction order vide memo No.2578-79 dated 18.06.2004 (Exhibit O-6). Reminder vide Endst No.3488-91 dated 26.07.2004 (Exhibit O-7) was also issued whereby the complainant was asked to hand over possession of the house to the opposite parties. Since, the complainant did not adhere to the aforementioned notices/reminders, so the opposite parties took possession of the house on 30.07.2004 and also refunded an amount of Rs.11,553/- to the complainant vide cheque No.476313 dated 07.01.2005, vide memo No.297. However, the complainant did not encash the cheque. Another cheque bearing No.289644 dated 07.06.2007 of Rs.11,553/- was issued to the complainant. Alleging it a case of deficiency in service on the part of the opposite parties, the complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 before the District Consumer Disputes Redressal Forum, Karnal (for short ‘the District Forum’).    

3.      The opposite parties contested the complaint by filing reply raising plea that since the complainant failed to deposit the balance price of the house, so the possession of the house was taken by the opposite parties as per terms and conditions of the Hire Purchase Tenancy Agreement (Exhibit O-3). Denying any deficiency in service on their part, It was prayed that the complaint be dismissed.

4.      On appraisal of the pleadings and evidence of the parties, the District Forum vide order dated 11.04.2008 accepted the complaint and directed the opposite parties as under:-

“………we direct Ops to refund the said amount of Rs.63627/- to the complainant within a period of 30 days of the receipt of copy of this order failing which the said amount shall carry interest at the rate of 10% p.a. from the date of this order till refund. The complaint stands dispose off with no order as to costs.”

5.      Earlier the instant appeal was dismissed by this Commission vide its order dated February 2^nd, 2011 as having become infructuous. Revision Petition No.1443 of 2011 being filed by the Housing Board, Haryana, Hon’ble National Commission vide order dated October 14^th, 2015 set aside the order of this Commission and remanded the case to decide it afresh on merits.  

6.      Notice was issued to the respondent.  He has been served upon through publication in the newspaper ‘Dainik Bhaskar’ dated June 2^nd, 2016 (Annexure-A) but none has turned up to contest the appeal.

7.      Indisputably, the house in question was allotted to the complainant vide allotment letter Exhibit O-2 and Hire Purchase Tenancy Agreement (Exhibit O-3) was also executed between the parties. Both the parties are bound by the terms and conditions of the agreement. It is own case of the complainant that he defaulted the payment of instalments. Paragraph No.2 of the complaint is as reproduced as under:-

“2.     That vide allotment letter dated 21.12.98 (copy enclosed) the complainant was allotted one LIG House bearing No.1726 and the tentative price was fixed therein as 76,960/-. The complainant had deposited an amount of Rs.64,010/- as initial deposit and thereafter instalments upto further period of three years. However, the complainant have to go to South India in connection with his business which kept him away from Karnal for a couple of years and for this reason he was unable to deposit the remaining instalments.”

8.      It is admitted that the complainant deposited initial amount of Rs.6410/- (wrongly mentioned as Rs.64,010/- in paragraph No.2) and thereafter paid some instalments. In all he paid Rs.60,739/-. Due to default in payment of instalments the tenancy agreement was terminated as per the terms and conditions mentioned therein and possession of the house was taken by the opposite parties. The relevant extract of the agreement Exhibit O-3 is as under:-

“(2)    The hirer shall hold the said property as a tenant for the Hire-Purchase period which is a fixed term of 13 years commencing from the first day of the month of January of the year one thousand nine hundred and 1999 and ending of the day of the month of December of year 2011 subject to the following conditions:

          (a)     The hirer shall pay without waiting for any demand from the owner the monthly rent (instalment) of Rs.657/- p.m. (Rupees six hundred and fifty seven only) on or before the 10^th day of each month at the office of the owner, the first of such payment has already been made by the hirer mentioned herein above and the same is considered to be taken as monthly rent (instalment) of the month of January, 1990 and the next such payment is due and payable on or before the Ist day of the month of February of the year 1999 and so on subsequently for every calendar month till the expiry of the hire-purchase period.

          Xxx

          (r) The hire purchase deposit shall be retained by the owner and the hirer shall be precluded from making any demand on it for meeting any of his liabilities whatsoever:

          Provided further that in the case of permitted transfer, the adjustment of the said deposit will be made as a special case in the sole discretion of the owner on merits of each case:

          Provided still further that in the case of eviction, said deposit shall be utilized for recovering all the dues whatsoever of the owner as the first charge and all the dues of the public bodies as the second charge and only the remainder shall be refunded to the hirer on his demand.” 

9.      In view of the above, it is proved that the complainant violated the terms and conditions of the agreement, so it cannot be said that there was any deficiency on the part of the opposite parties in terminating the Hire Purchase Tenancy Agreement and taking over the possession of the house.

10.    Since, the possession was taken over by the opposite parties on 30.07.2004, so the amount refundable to the complainant after adjusting usage was calculated at Rs.11,553/-, however, in the execution proceedings, the complainant has received the amount of Rs.67,297/- to which he was not actually entitled. The calculations with respect to the amount have been produced on the file. The complainant is actually entitled to the amount after deducting the amount calculated on account of usage of the tenancy. Thus, the amount returnable by the complainant to the opposite parties comes to Rs.55,744/- (Rs.67297-11553).       Hence, the complainant is directed to return the amount of Rs.55,744/- to the opposite parties.

11.    The appeal is accepted in the manner indicated above.

 

Announced 08.07.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL