For the Appellant                 Ms Rachana Joshi Issar, Advocate

For the Respondent (s)     Mohd Parvez Dabas, Advocate and

                                     Mr Uzmi Jameel Husain, Advocate

ORDER

PER SUBHASH CHANDRA

1.          This appeal has been filed under section 19 of the Consumer Protection Act, 1986 (in short, ‘the Act’) against the judgment dated 29.112018 of the State Consumer Disputes Redressal Commission, U T Chandigarh (in short, ‘the State Commission’) in CC no. 264 of 2017, directing refund of excess amount deposited by the opposite parties to the complainants towards interest on delayed payment  along with interest @ 6% per annum, compensation of Rs.7000/- for mental agony and harassment and deficiency in service with litigation cost of Rs.7000/- within 45 days, failing which, with interest @ 9% till realisation.

2.          The brief facts of the case are that the appellant Board floated a Housing Flat Scheme 2008 for allotment of four types of flats under General Staff Financing Housing Scheme 2008 at Sector 63, Chandigarh. On 10.11.2008, one Smt Parbha Kumari, wife of respondent no.1, applied for allotment under the said scheme in Category C for allotment of a one Bed Room flat and was declared successful in the second draw of lots held on 10.11.2008 and placed in the waiting list at Serial no.1. Smt Parbha Kumari died in an accident on 21.02.2009 leaving behind respondent, her husband, and two minor daughters as her legal heirs. The death of late Parbha Kumari was intimated to the appellant Board immediately. On 04.08.2009, unware of the demise, the appellant issued a letter for registration in respect of one bed room flat bearing no. 2308 D, Sector 63, Chandigarh in the name of Smt Parbha Kumari as a successful applicant in the second draw of lots held on 10.11.2008 due to surrender of registration of allotment by another successful registered applicant in the first draw. Thereafter, on 13.12.2011, as no information was received regarding the demise of Smt Parbha Kumari, an Acceptance-cum-Demand letter was issued by the appellant Board. On 29.12.2011, instead of informing the appellant Board about the demise of Parbha Kumari, respondent no.1 deposited Rs.2,57,362/- in cash being the due amount payable within 30 days of issue of the Acceptance-cum-Demand letter dated 13.12.2011. This payment was made through his Power of Attorney holder, Mr Madan Singh. The name of deceased Parbha Kumari was mentioned in the receipt as the allottee. On 30.12.2011, respondent no.1 submitted a letter to the appellant/ Board seeking transfer of the flat in the names of the respondents, i.e., legal heirs of original allottee late Smt Parbha Kumari.

3.     The appellant Board on 07.05.2012 directed respondent no.1 to furnish an Indemnity Bond and Agreement on judicial stamp paper of Rs.15/- and Rs.5/- respectively to the office of the appellant and to deposit publication charges of Rs.3320/- to enable the appellant to proceed further in the matter. The said letter was, however, received back undelivered from respondent no.1 as he was not found in the said address. On 04.06.2012, respondent no.1 conveyed his new address by way of a letter to the appellant Board and thereafter respondent no.1 was served a letter to furnish the Indemnity Bond and Agreement and to deposit publication charges. As these documents were not submitted, another letter was issued on 17.04.2013. Thereafter, some documents were submitted to the appellant Board on 26.08.2013 where after on 26.11.2013 it informed respondent no.1 to appear before the Chief Accounts Officer, CHB on any working day between 10.00 am to 04.00 pm with the relevant original documents and identity proof. On scrutiny of documents on 26.08.2013, it emerged that the Indemnity Bond and Agreement had omitted the names of respondent nos. 2 and 3 (minor daughters of the original deceased allottee late Smt Parbha Kumari) and the transfer was sought exclusively in the name of respondent no.1. The appellant on 09.04.2014 therefore, asked respondent no.1 to furnish a fresh Indemnity Bond and Agreement which were submitted on 25.08.2014. Thereafter the flat was duly transferred in favour of respondents vide letter dated 23.09.2014 and on 24.09.2014, respondents were asked to deposit the 1^st, 2^nd and 3^rd half yearly instalments as per the terms and conditions of the acceptance-cum-demand letter with the appellant Board.

4.     According to the appellant, Respondent no.1 deposited the amount towards the three instalments but defaulted in paying the interest due on account of the delay in payment. Consequently, a show cause notice was issued on 20.04.2015, as to why allotment not be cancelled. An opportunity was granted to appear in person or through an authorised representative before the Chief Executive Officer of the Board on 21.05.2015.  However, the respondent no.1 neither replied to the show cause notice nor deposited the outstanding dues. Hence, another show cause was issued on 03.06.2015 as a last and final opportunity to appear before the Accounts Officer 1 on 08.06.2015 at 11.00 am. Vide letter dated 08.06.2015, respondent no.1 admitted the delayed payment of instalment and requested the appellant Board to withdraw the show cause notice on 03.06.2015. Thereafter show cause notice dated 15.06.2015 and 29.06.2015 were issued to respondent no.1 to appear before the appellant Board on 19.06.2015 and 01.07.2015 respectively. It was informed that an amount of Rs.8,08,000/- was due to be paid. Respondent no.1 deposited Rs.5.00 lakh in partial payment on 02.07.2015. On 17.07.2015, the appellant Board conveyed that Rs.3,09,957/- was still due as interest/penalty. On 27.07.2015, respondent no.1 sought details of the interest charged. Unit no. 2308 D of one Bed Room Flat Category and parking in Block no.31 in sector 63 Chandigarh was offered to the respondent by the appellant Board vide allotment letter dated 23.10.2015 with a demand of Rs.60,051/- as service tax and an amount of Rs.4,290/- towards lease money/ ground rent for 1 year in advance. On 09.11.2015 respondent no.1 informed that he had deposited Rs.64,341/- along with the relevant papers. Possession of the flat was also handed over to the respondent by the appellant Board vide possession letter dated 20.11.2015. However, after one year, the respondents, vide letter dated 09.12.2016 demanded interest on delayed payment be charged from 23.09.2014 instead of 13.12.2011 and the excess amount be refunded. On 10.04.2017, the appellant Board rejected the request of the respondent no.1 along with a calculation chart.

5.     Hence, the Respondents thereafter filed a complaint before the State Commission (Complaint Case no.264 of 2017) on 28.03.2017. The State Commission after hearing the arguments of the learned counsel for the parties and perusing the records observed as under:

8. Furthermore, it is also evident from the record that despite the fact that number of requests were made by complainant no.1 to the opposite party, to provide him calculation sheet pertaining to the interest levied on the amount, referred to above, it failed to do so. Every person has a right to be made aware of the details of the amount/interest, which is being recovered/demanded from him. By not providing calculation sheet pertaining to the interest levied on the amount, referred to above, the opposite party was deficient in providing service, thereby causing mental agony and harassment to the complainants, for which it is liable to compensate them.

9. No other point, was urged, by the contesting parties.

10. For the reasons recorded above, this complaint is partly accepted with costs, with following directions to the opposite party, as under:-

i. To refund the excess amount received by it, from the complainants, towards delayed payment interest, for the period from 13.12.2011 to 07.06.2012, alongwith interest @6% p.a.

ii. To pay compensation, in the sum of Rs.7,000/- for causing mental agony and physical harassment, to the complainants, and also deficiency in providing service, as the opposite party, failed to provide calculation sheet to them, despite making several requests.

iii. To pay cost of litigation, to the tune of Rs.7,000/- to the complainants.

11. The order be complied within a period of 45 days, from the date of receipt of its certified copy, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @9% p.a., from the date of default, and interest @9% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing this complaint, till realization.

6.      Aggrieved by this order of the State Commission, the appellant Board has filed the present appeal before us with the prayer to:

1. Set aside the impugned order dated 29.11.2018 of the State Commission, Chandigarh in CC no. 264 of 2017; and/ or
2. Pass such other or further orders as may deem fit and proper in the interest of justice.

7.      We have heard the learned counsel for the parties and have carefully considered through material on record.

8.      Learned counsel for the appellant contended that the State Commission has acted contrary to the settled position of law and the agreed terms of contract between the parties and disregarded the crucial fact that the respondents defaulted in payment of the instalment due. Learned counsel further stated that the State Commission vide its impugned order dated 29.11.2018 had partly allowed the false and frivolus complaint of the complainant/ respondent on the basis of erroneous assumptions and that there was no deficiency on part of the appellant Board with regard to the unit in question. Hence, it was argued that the impugned order deserved to be set aside. Reliance was placed upon the judgment of the Hon’ble Supreme Court in  Bhubaneshwar Development Authority vs Susanta Kumar Mishra (2009) 4 SCC 684 to argue that

20.     Further, any fora under the Consumer Protection Act, 1986 (‘the Act’', for short) before granting any relief to a complainant, should be satisfied that the complaint relates to any of the matter specified in Section 2 (1) (c ) of the Act, and that the complainant has alleged and made out either unfair or restrictive trade practice by a trader, or defects in the goods sold, or any deficiency in a service rendered, or charging of excessive price for the goods sold, or offering of any goods hazardous to life and safety without displaying information regarding contents, etc. If none of these is alleged and made out, the complaint will have to be rejected.

21.     When a lessee signs without protest an agreement agreeing to pay interest at a given rate from a given date in given circumstances, and does not contend that the term relating to instalments or interest is invalid or inequitable, it is not open to the consumer forum to grant any relief. A demand for any amount due in terms of the unchallenged terms of an agreement, does not furnish a cause of action to the lessee/ allottee to approach the consumer forum.

Hence, it was prayed that the impugned order be set aside in the interest of justice.

9.      Per contra, the learned counsel for the respondent submitted that late Smt Parbha Kumari, wife of respondent no.1, had applied for purchase of flat with the appellant Housing Board and on 21.02.2009. The applicant died in an accident. It was submitted that respondent no.1 received a registration letter from the Housing Board on 04.08.2009 and the death of his wife was intimated on 08.06.2009. The flat in question was allotted by the appellant on 07.04.2010 and thereafter the appellant Board vide letter dated 13.12.2011 demanded Rs.2,57,362/-. Respondent further contended that respondent no.1 had intimated on 30.12.2011 the transfer of registration of the flat in favour of the legal heirs of the deceased. It was contended that the appellant Board sat over the matter for nearly three years despite intimating the death of his wife on 08.06.2009. Counsel for the respondent submitted that on 07.05.2012 particulars of the legal heirs were sought from respondent no.1, even though the appellant Board had been informed regarding the death of the original applicant on 08.06.2009. It was therefore, contended that the appellant authority could not charge penal interest from a prior date. Hence, the learned counsel for the respondent submitted that the first appeal be dismissed.

10.    From the foregoing, it is evident that the appellant Board had allotted the flat in question to respondents, who were legal heirs of the original applicant, following her demise. It is also manifest that the required payments were delayed by the respondents repeatedly despite several opportunities being provided. The issue which falls for consideration is whether the appellant Board erred in levying penal interest with effect from 13.12.2011 instead of 23.09.2014.

11.    It is evident from the records that the appellant Board had provided a calculation sheet to the respondent. The finding of the State Commission to the contrary is therefore, erroneous. The argument of the respondent that the appellant Board delayed the matter even after being intimated of the demise of Smt Prabha Kumari is not relevant since the respondents were provided several opportunities to complete the formalities of execution of the Indemnity Board and Agreement and to make the requisite payments. Despite several opportunities, the respondents failed to satisfy the precedent conditions for handing over of possession. Respondents also accepted possession after making the payment as determined by the appellant Board without protest or demur. It is, therefore, now not open for them to contend that they be liable for penal interest from any other date.

12.    For the foregoing reasons, we do not find merit in the contentions of the respondent. The appeal of the Housing Board on the other hand has merits. FA no. 263 of 2019 is therefore, allowed and the impugned order in CC no.264 of 2017 is set aside with no order as to costs.