Saroj Dogra w/o Late Sh. Kuldeep Dogra, r/o H.No.3199, Sector 46-C, Chandigarh.

2      Nipun Dogra s/o Late Sh. Kuldeep Dogra, r/o H.No.3199, Sector 46-C, Chandigarh.

……Appellants/Complainants

V e r s u s

Chandigarh Housing Board, 8, Jan Marg, Sector 9, Chandigarh – 160009.

 ....Respondent/OP

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:          Sh. Sandeep Bhardwaj, Adv. for the appellants.

                   Sh. Rajesh K. Sharma, Adv. for the respondent.

PER  JAGROOP  SINGH   MAHAL, MEMBER

                    This is complainants’ appeal against the order dated 11.7.2011 passed by the learned District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter referred to as the District Forum) whereby the complaint was dismissed.

2.                           The facts, in brief are that Complainant No.1, alongwith her late husband purchased Booth No.19 in Sector 49-A, Chandigarh in the name of their son Nipun Dogra-Complainant No.2,  from the OP in an auction held on 30.10.2002. The total price of the said Booth was Rs.15.70 lacs. The complainants deposited 25% of the bid money alongwith Rs.71,667/- towards ground rent for first 09 years, within time. Thereafter, they took possession of the Booth, on 18.12.2002. It was stated that the OP issued allotment letter in respect of the aforesaid Booth on 9.12.2002 and as per condition no.9 thereof, the Complainant was required to pay the balance 75% of the bid price i.e. 11,77,500/- either within 30 days (without interest) or with 18% p.a. interest in three installments payable upto 01.12.2005. After paying the balance 75%, vide Annexure C-7 to C-9, the Complainants approached the OP to issue ‘No Due Certificate’, the OP asked them to deposit another sum of  2,62,000/- towards interest on the principal amount and the final payment, which was accordingly deposited by them on 18.9.2004 vide Annexure C-10. It was alleged that even, thereafter, the OP did not issue the ‘No Due Certificate; despite repeated visits. However, to their utter surprise, the OP instead of issuing ‘No Due Certificate’, vide letter dated 28.6.2010, informed that they had not deposited the balance 75% payment of bid money. Upon, which the Complainants, immediately, wrote to the OP on 6.7.2010, and gave all the details of the amounts deposited by them. In response to which, the OP, vide letter dated 9.8.2010 (Annexure C-14), asked them to deposit 3,83,789/-, out of which 1,77,680/- was stated to be principal amount and 2,06,109/- was stated to be the interest @24% on this amount. The said amount of 3,83,789/- was, however, deposited by the them ‘under protest’ on 15.9.2010. Hence this complaint was filed alleging deficiency in service and unfair trade practice on the part of the OP.

3.                           In its written reply the OP submitted that the Complainants have admitted that they failed to make payment of 25% of the bid money in time and sought extension of time limit for payment of 25% amount of the bid money and that was allowed on 28.11.2002. After making the payment of 25% of the bid money, the Complainants took the possession of the Booth on 18.12.2002. It was pleaded that the Complainants were required to adhere to the schedule of making payment as mentioned  in clause 9 of the allotment letter, but they started to deposit the installments in piecemeal manner at their own sweet will and evidently in contravention of the payment schedule. Thus, they were rightly burdened with the interest and they could not escape its payment being a contractual obligation. It was further pleaded that till all govt. dues are cleared ‘No Dues Certificate’ cannot be granted to the allottee and hence, after reconciliation of the accounts an amount of 3,83,789/- was found due against the Complainants, which was paid by them on 17.9.2010 and in response thereof, the OP had issued the ‘No Dues Certificate’ to the Complainant. All other allegations of the complaint were denied. It was pleaded that there was no deficiency in service on the part of the OP, a prayer was made for dismissal of the complaint.

4.                           Parties led evidence in support of their case. 

5.                           After hearing the ld. Counsel for the parties and on going through the evidence on record, the ld. District Forum dismissed the complaint, as stated in the opening para of this order

6.                           Feeling aggrieved, the instant appeal has been filed by the appellants/complainants.

7.                           We have heard the ld. Counsel for the parties and have perused the record carefully.

8.                           It is clear from Annexure C-3 that the complainants/appellants have purchased the booth in question from the OP for Rs.15,70,000/-. There is no dispute about it that 25% of the said amount was to be deposited within 30 days, which the complainants have already deposited. As regards the remaining amount, the complainants had two options, either to pay the same in lump sum without any interest within 30 days of issue of allotment letter Annexure C-6 or to pay the same in three equated installments alongwith interest @18 p.a. It is also admitted that the complainants did not deposit the balance 75% amount in lump sum within 30 days of issuance of Annexure C-6. It is also a fact that as against Rs.5,41,560 relating to the first installment, which was payable by 10.12.2003, the complainants deposited Rs.7.00 lac vide Annexure C-7 dated 9.10.2003. In this manner they had deposited Rs.1,58,440/- in excess. The second installment of Rs.5,41,560/- was to be deposited by 10.12.2004. They had already deposited Rs.1,58,440/- as mentioned above and Rs.85,000/- was deposited on 6.1.2004 vide Annexure C-8 and Rs.4.00 lac vide Annexure C-9 on 12.7.2004 well before the date 10.12.2004. In this manner the second installment was also deposited by the due date and rather a sum of Rs.1,01,880/- was deposited by them in excess. The third installment of Rs.5,41,560/- was to be deposited by the complainants by 10.12.2005 but only a sum of Rs.2,62,000/- was deposited vide Annexure C-10  on 18.9.2004  plus the complainants had already deposited the excess amount Rs.1,01,880/- while depositing second installment. The third instalment, therefore, fell short by Rs.1,77,680/-, which was not deposited by due date. It is admitted that the complainant/appellant No.2 requested the OP on 29.12.2005 vide Annexure C-11 to issue a No Due Certificate. The total payment made by them was mentioned on the application itself. The OP kept silent and did not send any reply to the same for about 5 years. On 28.6.2010 they issued Annexure C-12 intimating them that they had not deposited the 3 equal annual installments alongwith interest, upon which the OP/respondent was informed vide Annexure C-13 that they have already deposited various amounts and gave copies of receipts.  It was only thereafter, that the OP realized that it was not the amount of all three installments but only a sum of Rs.1,77,680.00, which was due from them. The OP charged interest on this amount @24%p.a. totaling to Rs.2,06,109/-. The complainants deposited the said amount vide demand draft Annexure C-16 and again requested for the No Due Certificate. The contention of the learned Counsel for the complainants/appellants is that, if the OP had intimated this fact in the year 2005 or 2006, in response to his application Annexure C-11 the complainants would not have been required to pay such a huge amount of interest to the OP/respondent. The OP/respondent admitted that no reply was sent, as the original of application (Annexure C-11) was misplaced in their office. It is a very sorry state of affairs that even for five years the complainants had to wait for a reply from the OP, what to say of issuance of No Due Certificate and ultimately he was burdened with a huge amount of interest of Rs.2,06,109/-. This was the deficiency in service on the part of the OP, which the District Forum failed to notice. The OP/respondent was therefore, deficient in rendering proper service to the complainants because due to fault of the OP the complainants had been waiting for No Due Certificate for more than 5 years and had also to shell out huge amount by way of interest.

9.                           The learned Counsel for the complainants/appellants has argued that the complainants have deposited the amount in excess of the installment and the OP should pay 24% interest on the said amount, because it is recovering interest at this rate from the complainants for the amount which they failed to deposit due to the fault of the OP itself. It is true that the complainants had deposited excess amount before the due date with respect to first and second installments but it was deposited by them with their own free will. Otherwise also, there was no such condition in the allotment letter Annexure C-6, that the Housing Board would pay interest on the amount deposited by the complainants in excess of the installment amount. We, therefore, cannot accept this contention of the complainants that they would be entitled to interest on the amount paid by them in excess of the installments.

10.                       In view of the above discussion, we are of the opinion that the OP was definitely deficient in rendering proper service to the complainants. Hence we accept the present appeal and set aside the impugned order. We are, however, of the opinion that instead of directing the OP to refund the whole amount of Rs.2,06,109/- to the complainants, interest of justice would be met if we direct that a sum of Rs.50,000/- be paid by the OP as compensation to the complainants. We order accordingly.  The OP shall also pay Rs.5,000/- towards costs of litigation. The entire amount shall be paid within 30 days from the date of receipt of copy of the order, failing which, the OP shall be liable to pay the same alongwith interest @12% P.A. w.e.f. today till its payment to the complainants.

11.                       The OP would be free to recover the amount of compensation, interest and costs from its officials who were required to maintain the record and send a reply to Annexure C-11 but did not send any reply and rather misplaced the application, of course after following proper procedure as required under the Service Rules relating to officials concerned.

                    Copies of this order be sent to the parties free of charge.

Pronounced.

10^th January, 2012                                                                             sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/

[JAGROOP SINGH MAHAL]

MEMBER