DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH

                        Complaint Case No.:743 of 2007

 Date of Inst:31.08.2007

Date of Decision: 30.11.2009 

Sharwan Kumar Kohli Son of Sh. Ram Rakhawal, resident of House No.C-II/88, Baga Nagar, Dr. Zair Hussain Marg, New Delhi through his General Power of Attorney Sh. Raghbir Singh Son of Sh. Sucha Singh, resident of House No.3726, Sector –46-C, Chandigarh.

     …….Complainant                                                                                                    

V e r s u s      

Chandigarh Housing Board, Sector –9, Chandigarh through its Secretary.

                                    ..…Opposite Party

QUORUM                  SHRI LAKSHMAN SHARMA                    PRESIDENT

SMT URVASHI AGNIHOTRI MEMBER

SHRI ASHOK RAJ BHANDARI MEMBER

PRESENT:                 Sh. Munish Jolly, Adv. for the Complainant alongwith Sh. Raghbir Singh, GPA for the Complainant.

Sh. Naresh Parbhakar, Adv. for op.

PER ASHOK RAJ BHANDARI, MEMBER  

            The Complainant had executed a GPA in favour of Sh. Raghbir Singh to do all such acts as necessary concerning the allotted dwelling unit.

            The case of the complainant is that the OP allotted a dwelling unit vide allotment letter dated 10.01.1983. As per Clause 3 (i) of the allotment letter, the Complainant was to make an initial deposit of Rs.12370/- and further to pay Rs.992/- per month as monthly installment for a period of ten years. The Complainant made the initial payment and completed all other initial requirements. Therefore, he made payment of installments and on completion of all the installments, asked the OP for issuance of the NDC on 09.05.2005 followed by reminders on 19.05.2005 and 10.01.2006, but there was no response from OP. Afterward feeling aggrieved, the Complainant applied for the NDC under RTI Act on 17.08.2006 and in response, OP on 19.09.2006 said that the case of issuance of NDC is under process and thereafter on 12.10.2006 that they raised the demand of Rs.85669/- for issuance of NDC. The Complainant immediately wrote to the OP that he had deposited Rs.20,000/- on 29.11.2006 and asked them to correct the account. The OP sent the statement of Account on 11.01.2007 to the Complainant (Annexure C-9,10). On 26.03.2007 Complainant wrote to OP that he had been excessively charged and that the matter be looked into. The Complainant also deposited Rs.66122/- with the OP on 18.06.2007 whereupon the OP again demanded of Rs.5992 as penalty on 09.07.2007 and the Complainant deposited the said amount under protest on 26.07.2007. The monthly installment of the petitioner dwelling house was Rs.992/- only and as per Clause 7 mentioned above, the penalty if any, could never be in excess of 10% of the amount due every month and not more than Rs.100/- p.m. The excessive amount so charged by the OP from the Complainant and paid by him is only under duress and the Complainant had paid the same so as to get NDC from the OP. Due to non supply of NDC by the OP even after deposit of Rs.5992/- as demanded last by the OP, there is a clear deficiency in service on the part of the OP.  The OP has been sitting over the case file of the Complainant for over 12 years (1993-2005) and only woke up when information was sought from it under RTI Act on 17.08.2006 and, therefore, the Complainant is not liable to payment of any interest on the delayed payment or otherwise since 2005 because if the OP had acted at that point of time, then the Complainant would not have been saddled with additional interest amount.   

            Alleging this as deficiency in service on the part of OP, complainant has approached this Forum with the prayer that cost of Rs.5.00 lacs be imposed on the OP for compensation for mental agony and torture, Excess amount of Rs.1.00 lac paid by the Complainant, to the OP may kindly be ordered to be refunded alongwith interest @18% and OP be further directed to give NDC.

2.   In its reply, OP took some preliminary objections regarding the maintainability of the complaint etc. Further pleaded that the Attorney holder has not been authorized to apply for obtaining the no dues certificate. In fact the Complainant has not disclosed in his complaint that he has committed default in making the payment of installments in time. The amount is being claimed as per the terms and conditions as contained in Clauses 7, 9 and 10 of the Allotment Letter and as such there is no deficiency of service on the part of the OP in rendering the services on the part of the OP, to the Complainant. Thus, the OP prayed that the present complaint may be dismissed.

3.         We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainant / OP. We also heard the arguments put forth by the learned counsel for the parties / Complainant himself. As a result of the detailed analysis of the entire case, the following points / issues have clearly emerged and certain conclusions / arrived at, accordingly:-

i)        The basic facts of the case in respect of the Complainant having executed a GPA in favor of Sh. Raghbir Singh and that the OP allotted a dwelling unit to him on 10.01.1983 by making an initial deposit of Rs.12370/- and to pay monthly installments @Rs.992/- per month for a period of 10 years, have all been admitted. The Complainant made the initial payment as per rules and completed all other requirements for the allotment of the dwelling unit to him. On completion the payment of all the installments, he asked the OP  for the issuance of No Dues Certificate (NDC) on 09.05.2005 followed by reminders on 19.05.2005 and 10.01.2006 but the OP did not issue the NDC to the Complainant.  Subsequently, the Complainant made an application under RTI Act on 17.08.2006 and in response, the OP wrote to the Complainant on 19.09.2006 that the case of issuance of NDC was under process and thereafter instead of issuing the NDC, the OP raised the demand of Rs.85669/- for issuance of NDC. The Complainant had deposited a sum of Rs.20,000/- on 29.11.2006 with the OP and asked them to correct his account, as according to the Complainant, he had been over charged. Since no solution was coming forth to settle the problem of issuance of NDC, the Complainant deposited further sums of Rs.66122/- on 18.06.2007 and Rs.5922/- as penalty on 09.07.2007. He did so and also lodged a protest with the OP on 26.07.2007.

ii)      The only dispute between the parties in the present complaint is that whereas, as per the Complainant, he has made all the installments for the dwelling unit allotted to him @992/- per month and where ever there was any delay in the payment of installment, he was ready to pay the due interest and penalty if any as per Clause 7 of the Allotment Letter issued by OP to the Complainant for the allotment of the Dwelling Unit on Hire Purchase basis (Dwelling Unit No.3726 MIG, Sector –46-C, Chandigarh). The relevant Clause 7 of the Allotment Letter is quoted as below:-

“You shall pay a monthly installment of Rs.992/- without receipt of any notice to this effect which shall be deemed to be the rent for all items and purposed for a period of 10 years by the 10^th day of each month following the month for which it falls due. The second such installment shall be pay by you by 10.03.1989 if any, installment is not paid in full remedy of the Board, you shall be liable to pay liquidated damages at the rate of 1% of the amount of installment delayed or Rs.2/- whichever is more for the first month of default, 2% of the amount of the installment delayed or Rs.5/- whichever is more for the second month of default and 4% of the amount of installment delayed or Rs.10/- which ever is more for the third month of default in respect of each delayed installment provided that it shall not exceed 10% of the amount due every month. In case of default for more than three consecutive months in respect of any installment the tenancy may stand terminated and you shall be liable to be evicted from the dwelling unit by following the procedure prescribed under Rules as framed under Chapter VI of the Haryana Housing Board Act, 1971, as extended to U.T. Chandigarh. However, the Chairman, may revive the allotment and tenancy, on such terms and conditions and by imposing such penalty as he considers fit, in as repriate cases, before referring the case to the competent authority under Chapter VI of the Act”. 

iii)     The contention of the Complainant is that as per Clause 7 of the Allotment Letter in case any installment is not paid in full by the stipulated date, he is liable to pay liquidated damages @1% of the amount of installment delayed or Rs.2.00 whichever is more for the first month of default, 2% of the amount of the installment delayed or Rs.5/- whichever is more for the second month of default and 4% of the amount of installment delayed or Rs.10% whichever is more for the third month of default in respect of each delayed installment provided that it shall not exceed 10% of the amount due every month. The Complainant says that this clause has been violated by the OP and as per the information made available to him through RTI application dated 19.02.2006, the OP has charged penalty on the delayed installments starting with 1% of the installment amount due and going upto as high as 25% whereas, as per Clause 7 (Supra), the maximum amount to be charged shall not exceed 10% of the amount due every month, even if the installment is delayed for three months or so. In the process, the OP has charged the penalty much in excess of what was actually payable by the Complainant. Both the OP as well as the Complainant have provided their independent calculations of the amount due and payable by the Complainant to the OP.

iv)    The OP in support of its case has quoted not only clause-7 of the Allotment Letter but also Clauses 9 & 10. The Clause 9 (i) only deals with the mode of payment as demand draft drawn in favour of the Chandigarh Housing Board for the payment of installments and other dues including ground rent. Clause 10 lists the amount of ground rent payable by the allottee during the total period of 99 years and also separate rates of the ground rent for the first 33 years, the next 33 years and the last 33 years and that the ground rent is payable in advance every year. It is also quite clear from clauses 9 & 10 of the Allotment Letter, that there is no provision of charging any penalty or interest on the delayed payment of ground rent. It is only applicable in the case of the installment in respect of the cost of the dwelling unit.

v)      In the written statement / reply submitted by the OP in para 20 it has been stated that the allottee did not deposit the ground rent regularly and therefore, the interest has been charged as per the terms and conditions of the Allotment Letter and that the Allotment Letter may be treated as the part and parcel of the reply. A close perusal of the Allotment Letter shows that there is no clause of charging any interest of the ground rent even if it is delayed by the allottee. In support of its case, the OP has submitted the Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations,1979, which have been issued vide notification dated 29.12.1979 and published by the Govt. in its gazettee on 05.01.1980. The relevant Regulation 7 (3 & 4) are quoted below:-

(3) If payment of the balance of consideration money is made in instalments, the allottee shall have to pay interest on the balance amount of premium at the rate as may be fixed by the Board by prior intimation.

(4) In case any installment is not paid by the allottee by the due date, a notice shall be served on him calling upon him to pay the instalment within a month together with penalty which may extend upto to 25 percent of the amount due. If the payment is not made within the said period of such extended period as may be allowed by the Board but not exceeding three months in all, from the date (---) on which the instalment was originally due, the Board may cancel the allotment and forfeit the whole or part of the consideration money and ground rent already paid in respect of the property and thenceforth the property shall vest in the board”.

vi)    As per Regulation 7 (3& 4) (supra), in case any installment is not paid by the allottee by the due date, a notice shall be served on the allottee calling upon him to pay the installment within a month together with the penalty  which may extend upto 25% of the amount due. This clause was introduced by the Chandigarh Administration by amending the said notification as on 22.07.1993. It is observed that  the said notification dated 29.12.1979 was published on 05.01.1980, but there is no mention of such a Clause 7 (3 & 4) in the Allotment Letter issued to the Complainant in the year 1983 which means that the allotment letter was issued to the Complainant three years after the publication of the gazette notification and still there is no such clause in the allotment letter, which came into effect only w.e.f 22.07.1993 [(2003) 3 Supreme Court cases 127 Patiala Ind. Investment Co. (P) Ltd., Vs. Union of India and Another]. Therefore, the OP cannot take undue advantage of any terms and conditions which do not find mention in the allotment letter. Any Rule Regulation or terms and conditions which are not a part and parcel of the Allotment Letter cannot be subsequently imposed on the Complainant arbitrarily/without due and proper notice and to his disadvantage and that too retrospectively from the date of allotment. Moreover even as per Clause 7 (3 & 4), the OP was required to give a notice to the Complainant to pay the delayed installment within a month with a penalty which may extend upto 25% of the amount due. In the present case, no such notice has been given to the Complainant and therefore the imposition of penalty @25% of the amount due becomes null and void. It is beyond doubt that the allotment letter issued by the OP to the Complainant is the only document which constitutes a valid contract between the two parties and is binding on both. Anything beyond this contract may not have any relevance or legal value for the Complainant as well as the OP unless proper procedure was followed for its amendment and that due & proper notice was served upon the Complainant as per rules.  

vii)  A close perusal of the calculation submitted by both the OP as well as the Complainant shows that whereas, as per the calculation made by the OP, the total amount recovered by the OP from the Complainant as on 26.07.2007 comes to 2,10,314/-, on the contrary as per the calculation made by the Complainant, the total amount payable by him was only Rs.1,39,653.72 (say Rs.1,39,654/-) and, therefore, the excess amount charged by the OP from the Complainant comes to Rs.70,660/-, which includes the excess amounts charged by the OP both in respect of Ground Rent, as well as payment of installments for consideration amount for the cost of dwelling unit. The calculation made by the Complainant is based on premise that the penalty is to be charged as per clause 7 of the allotment letter and as per judgment of the Hon’ble Supreme Court (Supra) and also that there was no provision at all for payment of any interest or penalty on the overdue ground rent payment in the beginning i.e. in the year 1983 and that the same became chargeable only w.e.f. 29.11.1990 as per Chandigarh Administration Notification amending Rule 12, sub-rule 2 & 3A and the rates were fixed as 10%, 12% and 15% p.a. respectively and later as revised by another notification dated 22.7.1993, the rate of interest on ground rent was enhanced to 24% p.a. w.e.f. 22.7.1993. Further, it is amply clear that no compound interest was to be charged from the allottees under any circumstances. This calculation made by the Complainant is strictly as per the terms and conditions of the allotment letter and also the Govt. Notification dated 22.07.1993. The plea of the OP is that the interest is being charged on account of the ground rent as per rules called Chandigarh (Lease hold of sites and buildings) Rules, 1990 which were notified by the Chandigarh Administration on 29.11.1990 (Annexure A-1) amending Rule 12 Sub Rule 2-3A and that the rate was fixed as mentioned in the notification which was followed by another notification dated 22.07.1993 wherein the rate of interest on ground rent was enhanced as per notification in Annexure A-2. In support of its case, the Complainant has enclosed the aforesaid Supreme Court Judgment 2003 (3) Supreme Court Cases 127, Patiala Inds. Investment Co. (P) Ltd. Vs. Union of India and Another (supra), the Head note of which is given below:-

“Town Planning – Chandigarh Leasehold of Sites and Buildings Rules, 1973-R. 12(3) [as amended in 1993] – Allotment – Delayed payment of installments – Interest on – Enhanced rate of interest i.e. @24% held to chargeable only with effect from the date of amendment in R.12(3) i.e. 22.07.1993”

viii) In view of the judgment passed by the Hon’ble Supreme Court, the interest on delayed payment of installments of the consideration amount is chargeable only w.e.f. the date of amendment i.e. 22.07.1993. Therefore, at best, the OP could have charged the enhanced rate of interest @24% on overdue installments of consideration amount, if any, only w.e.f the said date i.e. 22.07.1993 and not before. But at the same time there was no provision on record for charging any interest or penalty on the payment of delayed amount of Ground Rent in the beginning (1983) and that the same was introduced only later i.e. in 1990/1993 and hence the same could not be charged by the OP w.e.f. the year of allotment of the dwelling unit i.e. 1983, but only subsequently w.e.f. 1990/1993, as the case may be.

4.         As per the detailed analysis of the case we find that the complaint made by the Complainant is genuine and legitimate and has a lot of merit in it, whereas the OP has no case whatsoever. The OP has not only charged the allottee the excessive amount of ground rent, as well as consideration amount, but also extracted from him the said amount by charging the compound rates of interest which had gone as high as 40-50% p.a., which is clearly not only a deficiency in service on its part, but also a gross unfair trade practice indulged in by it qua the Complainant. Therefore, we accept the complaint in favour of the Complainant and against the OP. We, therefore, direct the OP to do the following:-

i)              To pay the sum of Rs.70,660/- to the Complainant for having charged the Complainant excessively on account of interest / penalty on both the installments of consideration money as well as ground rent of the dwelling unit allotted by the OP to the Complainant during the last 25 years or so.

ii)             The OP shall pay a compensation of Rs.30,000/- to the OP for causing physical harassment, mental agony and torture to the Complainant.

iii)           To pay Rs.5000/- to Complainant as litigation expenses. 

5.         The above said order be complied by the OP within a period of 6 weeks from the receipt of the certified copy of this order, failing which OP shall pay the sum of Rs.1,00,660/- along with interest @18% p.a. from the date of filing the complaint i.e. 31.8.2007, till realization, besides litigation expenses of Rs.5,000/-.

6.   Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

30.11.2009

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

                                                                                                   Sd/-

(URVASHI AGNIHOTRI)

MEMBER.

                                                                                                Sd/-

(ASHOK RAJ BHANDARI)

MEMBER

‘Dutt’
C.C. No. 743 of   2007

PRESENT:            None

            Arguments heard on 03.11.2009. The case was reserved for orders. 

            As per separate detailed order of even date, this complaint is allowed. After due compliance, file be consigned.

Announced.

30.11.2009                              Member                      President          Member