These two revision petitions have been filed u/s 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 10.01.2012, passed by the State Consumer Disputes Redressal Commission, UT Chandigarh (hereinafter referred to as ‘the State Commission’) in FA No. 228/2011, ‘Saroj Dogra & Anr. vs. Chandigarh Housing Board’, vide which, while allowing the appeal, the order dated 11.07.2011, passed by the District Forum-I UT Chandigarh in complaint case No. 691/2010, dismissing the said complaint, was set aside. 2. The facts of the case are that the complainant Saroj Dogra alongwith her late husband Kuldeep Dogra bought a commercial booth from the OP, Chandigarh Housing Board in the name of their son Nipun Dogra, who is complainant No. 2, in an auction held by the OP on 30.10.2002. The total cost of the said booth was ₹15,70,000/-. The complainants deposited 10% of the bid amount, i.e., ₹1,57,000/- with the OP on the same day. They sought extension in time for payment of a sum of ₹2,35,500/- to compete 25% of the bid money. The OP granted them the said extension till 28.11.2002. The complainants deposited the amount of ₹2,35,500/- alongwith ₹71,667/- as ground rent on 25.11.2002. The OP issued an allotment letter for the said booth on 09.12.2002 and also delivered the possession to them on 18.12.2002. In accordance with the conditions of the allotment, the balance 75% of the bid price, i.e., ₹11,77,500/- was to be paid either within 30 days without any interest or with interest @18% p.a. in 3 instalments payable on 01.12.2003, 01.12.2004 and 01.12.2005. The complainants chose the latter option for the said payments and are stated to have paid a sum of ₹7 lakhs on 09.10.2003, ₹85,000/- on 06.01.2004 and ₹4 lakh on 12.07.2004, making it a total sum of ₹11,85,000/-. In this way, the payment of first two instalments was made even before time, the last date for second instalment being 01.12.2004, rather same payment was made in excess to the OP than that required for the first two instalments. The present dispute relates to the payment of 3rd instalment which was due on 01.12.2005. It has been stated that the complainant paid an amount of ₹2,62,000/- on 18.09.2004 and did not make any payment thereafter. The case of the complainant is that they sent a letter dated 29.12.2005 to the OP and asked them to issue No Due Certificate to them. The said letter was, however, misplaced in the office of the OP. Rather than issuing him a No Due Certificate, the OP demanded a sum of ₹3,83,789/- from them after a long period of 5 years. The case of the complainant is that the action of the OP in asking for the said amount of ₹3,83,789/- after a period of 5 years amounts to an unfair trade practice. 3. On the other hand, the case of the OP Chandigarh Housing Board is that the complainant failed to make full payment of the outstanding amount due from them and hence, under the terms and conditions of the allotment, they were required to pay the said outstanding amount, alongwith interest including the penal interest, as laid down in the terms and conditions of the said allotment, which were duly accepted by the complainant. The complainant filed the consumer complaint in question, seeking direction to the OP to issue No Due Certificate and to refund the amount of ₹3,83,789/- with interest @18% p.a. w.e.f. 15.09.2010 and payment of compensation of ₹1 lakh for mental harassment and ₹21,000/- as cost of litigation. 4. The complaint was resisted by the OP by filing a written statement before the District Forum saying that the complainants failed to deposit even the payable principal amount of the three equated instalments until 17.09.2010. According to the OP, a sum of ₹1,77,680/- was outstanding against the complainant on account of the payment to be made on account of principal amount and hence, the amount of ₹2,06,109/- as interest @24% p.a. on the unpaid amount was demanded from them vide letter dated 09.08.2010. The OP also stated that after receiving the amount of ₹3,83,789/- on 17.09.2010 from the complainants, the No Due Certificate had been issued to them. The complaint, therefore, deserved to be dismissed, as the OP had acted in accordance with the terms and conditions of the allotment. The District Forum vide their order dated 11.07.2011, dismissed the complaint after concluding that the complainant could not be allowed to wriggle out of the terms and conditions of the auction and they were required to pay penal interest @24% on the delayed instalments. Being aggrieved against the order of the District Forum, the complainant filed appeal before the State Commission, which has been allowed vide impugned order. 5. The State Commission have observed in their order that the complainants had requested the OP vide letter dated 29.12.2005 to issue a No Due Certificate. However, the OPs failed to respond to the said letter and kept quiet for a period of 5 years, which amounted to deficiency in service on their part. The OPs were, therefore, not justified in asking the complainant to pay penal interest to them. The State Commission, however, stated vide impugned order that instead of directing the OP to refund the interest amount of ₹2,06,109/- to the complainant, they were directing that a sum of ₹50,000/- be paid by the OPs as compensation to the complainants for their deficiency in service and ₹5,000/- should be paid as cost of litigation. It was also ordered that OPs would be free to recover the amount of compensation, interest and cost from their officials, who misplaced the application for No Due Certificate, filed by the complainant. Being aggrieved against the said order, the complainants as well as the OP are before this Commission by way of two separate revision petitions. RP No. 1068/2012 is filed by the complainants, in which they have requested for refund of amount of ₹3,83,789/- a/w interest @18% p.a. w.e.f. 15.09.2010, a compensation of ₹1 lakh and litigation expenses of ₹51,000/- from the OP. On the other hand, OP in their RP No. 1443/2012 stated that the order dated 10.01.2012 of the State Commission should be set aside, as they did not indulge in any deficiency in service. 6. At the time of hearing before me, the Ld. Counsel for the petitioner, Chandigarh Housing Board in RP No. 1443/2012 has drawn attention to the terms and conditions contained in the allotment letter dated 30.10.2002 issued by them and also to the order passed by the District Forum in the case, saying that the OP was required to follow the terms and conditions of the auction and the said transaction was between the complainant and the OP and hence, there was no deficiency on their part. The District Forum in their order had arrived at the correct conclusion that there was no merit in the complaint and hence, they decided to dismiss the same. The Ld. Counsel further stated that the complainant had defaulted in making the payment to them for the 3rd instalment and hence, the OP was well within their competence to charge penal interest @24% p.a. from them. 7. Per contra, the Ld. Counsel for the complainants/petitioners in RP No. 1068/2012 stated that the complainants had made payments of the first two instalments which were due on 1.12.2003 and 01.12.2004 well before time, rather they had made excess payment to the OP Chandigarh Housing Board. The Ld. Counsel argued that the letter dated 29.12.2005 sent by the complainants to the OP, seeking the issuance of No Due Certificate was misplaced in their office. It was the duty of the OP to send intimation to them if anything further was due from them. The Ld. Counsel further argued that in case of non-payment of any instalment of premium by due date, the OPs could charge penal interest @24% p.a. on the amount due, but it was also stipulated, that in case the payment due alongwith penal interest was not made within 3 months from the date on which such instalments were due, the allotment was liable to be cancelled and the booth resumed and the whole or any part of the amount forfeited by the OP Board. According to the Ld. Counsel, interest @24% p.a. could have been charged by the OPs for a period of 3 months default only, after which they should have cancelled the said allotment. The complainants were not liable to pay penal interest for any period beyond 3 months. 8. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me. 9. In so far as the allotment of booth by the OP Chandigarh Housing Board to the complainants, its total price and the period of payment of instalments of the initial deposit and instalments of the balance amount of 75% is concerned, the facts have been admitted by both the parties. The dates of making payments and the amounts stated therein by the complainants have also been admitted by the OP Chandigarh Housing Board. It is, however, clear from the version given by the complainants that while they made the payment of the necessary amount for the first two instalments before time, they failed to make payment of the 3rd instalment in full. It has been made clear in the order passed by the State Commission as well, that the 3rd instalment of ₹5,41,560/- was to be deposited by the complainants by 01.12.2005, but only a sum of ₹2,62,000/- was deposited by the complainants on 18.09.2004. There was an excess payment of ₹1,01,880/- made by the complainant while depositing the second instalment. The third instalment, therefore, fell short by ₹1,77,680/- (₹5,41,560 - ₹2,62,000 - ₹1,01,880 = ₹1,77,680/-) to the Housing Board in time. The letter sent by the complainants on 29.12.2005 was received in the office of the OP Board as admitted by them. The details of the payments made by the complainants have been mentioned on the said letter, a perusal of which reveals that the total amount due for the 3 instalments of the balance amount of 75% of the Booth was not paid by the complainants to the OP Housing Board. It is very clear, therefore, that the OP Board is within their rights to demand the payment of the balance amount from them alongwith interest in accordance with the terms and conditions of the allotment. 10. The State Commission allowed the appeal on the ground that the Housing Board had committed deficiency in service towards the complainant by not responding to their letter dated 29.12.2005. Even if it is true that the said letter got misplaced in the office of the OP and the OP did not give any response to the complainants for the letter dated 29.12.2005, it does not mean that the complainants were absolved of their responsibility from following the terms and conditions contained in the allotment letter. The material produced on record and the version given by the complainant themselves makes it very clear that there was no ambiguity of any kind regarding the amounts payable by the complainants to the OP. The complainants have not been able to offer any reasonable explanation even at the time of arguments as to why they failed to make the payment of balance amount to the Housing Board in time. It can be stated that it was not mandatory on the part of the OP to respond to each and every communication from the complainant, when the terms and conditions are already made clear to the complainants. The contention raised by the State Commission that there was deficiency in service on the part of the OP is, therefore, totally unfounded and the OPs cannot be held guilty of deficiency in service to the complainants on the ground that they failed to respond to some letter from the complainant. It can be stated that there was no necessity for the complainants to send the said letter, seeking No Due Certificate from the OP, when they were fully aware that there was shortfall in making payment to the OP regarding the allotment of the said booth. The order passed by the State Commission, therefore, deserves to be set aside based on the facts stated above. 11. Further, the Ld. Counsel for the complainants stated that under the terms and conditions contained in the letter of allotment, the penal interest @24% p.a. could be levied for a period of 3 months only and after that the OP could not charge that interest, as there was a provision for cancellation of the said allotment. This argument is, however, completely untenable because it is not mandatory upon the OP to cancel the allotment after period of 3 months from the default made by the complainant is over. 12. It is very clearly laid down in para 11 of the allotment letter dated 09.12.2002 issued by the OP that in the event of non-payment of premium, the complainant shall be liable to pay penal interest @24% p.a. on the amount due. It has further been laid down that if such payment alongwith penal interest was not made within 3 months from the date on which the instalment was originally due, the lease shall be liable to be cancelled. At best, this provision can be stated to be a provision in the hands of the OP, relying upon which they could have initiated the process of cancellation of the allotment. The Ld. Counsel for the OP stated in this regard that cancellation was generally resorted to as a last resort in such cases. In any case, even if the OP did not choose to cancel the allotment, the complainant is not absolved of their responsibility to pay the penal interest @24% p.a. 13. From the foregoing discussion, it is very clear that the complainants failed to make full payment of the instalments due to the OP within time and hence, the OP is entitled to recover the penal interest from them as per the terms and conditions of the allotment. It is held, therefore, that there was no deficiency on the part of the OPs and they are not liable to pay any compensation to the complainant at all. The order passed by the State Commission is, therefore, set aside and the order passed by the District Forum is restored. Consequently, RP No. 1068 / 2012 filed by the complainant, stands dismissed and the RP No. 1443 / 2012 is allowed and the consumer complaint stands dismissed. There shall be no order as to costs. |
