BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 15/2007 Filed on 09.01.2007

Dated : 15.06.2009

Complainant:

K. Raghupathy, Chithira House, S.P XIX 287, A.K.G Nagar, Pangappara, Thiruvananthapuram-81.

(By adv. V.R.C Pillai)

Opposite parties:

1. Secretary, Kerala State Housing Board, Santhi Nagar, Thiruvananthapuram.

    

   (By adv. G. Nissar)

2. Secretary to Government, Housing Department, Secretariat, Thiruvananthapuram.

This O.P having been heard on 06.04.2009, the Forum on 15.06.2009 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that Flat No. CF 6/219 was allotted to the complainant vide order No. E1/NLA/93 dated 02.02.1994 of Regional Engineer, Thiruvananthapuram Housing Unit, that the price of the said flat was fixed at Rs. 3,37,770/-, that the complainant was directed to remit Rs. 1,68,885/- as initial deposit and the same was remitted on 29.04.1994 and that the balance price of the apartment was directed to be paid in equal monthly instalments at the rate of Rs. 2,907/- for a period of 13 years. After the initial remittance of Rs. 1,68,885/- complainant had remitted 90 instalments which comes to Rs. 2,66,025/- upto 27.09.2001. Thereafter complainant preferred “one time settlement” based on vide Government Order dated 07.02.2004 for "one time settlement". Since there was no response from the opposite parties to the "one time settlement", complainant preferred a writ petition (WP(C) No. 15117 of 2004) before the Hon’ble High Court seeking direction to KSHB to consider the representation put by the complainant claiming the benefit of "one time settlement". Hon’ble High Court vide order dated 19.05.2004 in WP(C) No. 15117 of 2004 directed Kerala State Housing Board to consider the claim of the complainant within one month from the date of receipt of the order. The Board violated the order of the Hon’ble High Court and not settled the matter so far. Hence this complaint to direct opposite parties to give the calculation details of the amount to be recovered from the complainant based on G.O dated 07.02.2004 extending all the concessions as per the above said Government Order.

Opposite parties entered appearance and filed version contending that complainant is not a consumer. The averments in para 1 to 7 are not disputed. Default in payment of EMI attract default interest and penal interest. Though the flat was allotted provisionally on 02.02.1994, it was confirmed and finally allotted on 29.04.1994. Complainant has not remitted the monthly instalments as per the terms of the agreement. He has violated the agreement conditions for remitting the EMI of Rs. 2,907/- each in 156 monthly instalments on or before 10^th day of every month from 04/94 onwards. This necessitated the issuance of default notices and notices for coercive steps. The allegation that complainant has cleared all due arrears upto 2001 is not correct. The said payment upto 27.09.2001 was sufficient only for clearing dues upto 11/00 since belated payment attract default interest and penal interest. The contention of the complainant that remittance of Rs. 2,66,025/- will be sufficient and more than what the complainant expected to pay is false. The act of the Board was not in violation of the order of the Hon’ble High Court in which the Court directed the Board to consider the claim of the petitioner within one month from the date of order. As such he was intimated the amount for closing the account allowing O.T.S benefit and also called for a personal hearing. But complainant did not attend. The Board is ready to grant the eligible benefits of O.T.S if the complainant is ready to remit the amount during the allowable period.

The points that arise for consideration are:-

1. Whether the complainant is entitled to the benefit of "one time settlement" as on 19.05.2004 as per the government order dated 07.02.2004?

2. Whether there has been deficiency in service on the part of opposite parties?

3. Other reliefs and costs.

In support of the complaint, complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and Exts. P1 to P6 were marked. PW1 has been cross examined by the opposite party. In rebuttal, the Section Officer of the 1^st opposite party’s office has filed an affidavit of herself as DW1 and Exts. D1 to D3 were marked. DW1 has been cross examined by the complainant.

Points (i) to (iii):- It has been the case of the complainant that Flat No. CF 6/219 was allotted to the complainant vide order No. E1/NLA/93 dated 02.02.1994 of Regional Engineer, Thiruvananthapuram Housing Unit, that the price of the said flat was fixed as Rs. 3,37,770/-, that the complainant was directed to remit Rs. 1,68,885/- as initial deposit and the same was remitted on 29.04.1994, and that the balance price of the apartment was directed to be paid in equal monthly instalments at the rate of Rs. 2,907/- for a period of 13 years (156 instalments). It has also been the case of the complainant that after the initial remittance of Rs. 1,68,885/- complainant had remitted 90 instalments which comes to Rs. 2,66,025/- upto 27.09.2001, that thereafter complainant preferred "one time settlement" based on vide Government Order dated 07.02.2004 for "one time settlement", that since there was no response from the opposite parties, complainant preferred a writ petition (WP(C) No. 15117 of 2004) before the Hon’ble High Court seeking direction to KSHB to consider the representation put by the complainant claiming the benefit of "one time settlement", that Hon’ble High Court vide order dated 19.05.2004 in WP(C) No. 15117 of 2004(4) directed Kerala State Housing Board to consider the claim of the complainant within one month from the date of receipt of the order. Ext. P1 is the order of allotment of Flat No. CF6-219 by the KSHB. As per Ext. P1 the tentative cost of the said Flat is Rs. 3,37,770/-. Ext. P2 is the agreement for the sale of property and apartment. As per clause 6 of the agreement complainant has to deposit a sum of Rs. 1,68,885/- with the Board as security, which will be adjusted towards the price of the apartment land and the balance sum of Rs. 1,68,885/- was to be paid in 156 monthly instalments at the rate of Rs. 2907/- from the month of April 1994. As per Ext. P2, the 1^st instalment shall be payable on 10.04.1994 and the succeeding instalments being payable on or before the 10^th day of each and every succeeding month. As per clause 8 of the said agreement, the instalment of the price of the property shall, on default, be recoverable together with a penal interest at the rate of 20% per annum. As per clause 9 of Ext. P2 agreement, opposite party shall be entitled to refix the final price of the apartment land charges, thereon taking into account, interalia, the enhanced compensation awarded by courts and Tribunals as per actual cost of construction and as under clause 10 of the Agreement the allottee shall after the finalisation of the price of land/apartment pay to the Board together with interest at 18.75% per annum, the difference between the tentative price fixed and price finally fixed, within thirty days of the date of registered notice demanding thereof. Main thrust of argument advanced by the counsel appearing on behalf of the complainant was to the effect that, complainant had already remitted an amount of Rs. 2,66,025/- in total 90 instalments besides the initial deposit of Rs. 1,68,885/-, but to substantiate that aspect complainant did not furnish any documents. Opposite parties resisted the complaint by submitting that the allegation that complainant has cleared all due arrears upto 2001 is not correct, and that the said payment was sufficient only for clearing dues upto 11/2000 since belated payments attract default interest and penal interest. Ext. D3 is the copy of the detailed closing statement as on 01.09.2008 furnished by the opposite party. On perusal of Ext. D3, it is found that complainant has committed default in payment of monthly instalments and it is admitted by opposite party by Ext. D3 remitted particulars, that complainant had already remitted 83 monthly instalments. Though complainant claims to have remitted 90 monthly instalments upto 27.09.2001, out of which some amount is seen adjusted by opposite party to cover default interest and penal interest, thereby the number of instalments remitted is seen reduced to 83. There is no material before us to prove otherwise. The initial onus of proving remittance of instalments in time would rest on the complainant. As per Ext. D3, there is due from 84^th instalment (due date 10.03.2001) onwards. Submission by the complainant is that he is entitled to get the benefits of "one time settlement" as per Ext. P5 Government Order dated 07.02.2004 and Ext. P6 order of the Hon’ble High Court dated 19.05.2004 in WP(C) No. 15117 of 2004. On perusal of Ext. P5 Government Order, the "one time settlement" (OTS) would be in force in 6 months from the date of Government Order, the OTS scheme will be applicable to all house loan scheme and hire purchase schemes of the Board. It is stated in Ext. P5 order that ’one time settlement’ will be implemented by recovering the outstanding principal, outstanding interest, and only 30% default interest and allowing concession of 5% on the balance principal and 2.5% penal interest. As per Ext. P6 order dated 19.05.2004 of the Hon’ble High Court, it is seen directed the Housing Board to consider the claim of the complainant raised in the complaint before the Regional Engineer, KSHB Thiruvananthapuram unit within one month from the date of receipt of the copy of the judgement after affording an opportunity of being heard to the petitioner. It has been the case of the complainant that he was denied the benefits of Ext. P5 Government Order dated 07.02.2004 and opposite parties handled the matter improperly and made undue delay in taking action. Ext. D1 is the copy of the letter dated 25.11.2004, addressed to complainant, wherein the reference is (i) order of the Hon’ble High Court (Ext. P6) (ii) complainant’s last request dated 30.09.2004 and (iii) opposite party’s office letters dated 23.06.2004, 07.07.2004, 30.07.2004 and 16.08.2004. Ext. D2 is the copy of the letter dated 20.09.2004 addressed to Deputy Secretary (Estate), KSHB informing him about non-clearance of dues by the complainant and his request for detailed statement. In Ext. D2, complaint from the allottee dated 08.03.2004 is seen referred. It is seen mentioned in Ext. D2 letter that “vide letter dated 23.06.2004 it was intimated to remit Rs. 1,90,610/- after allowing a waivement of Rs. 32,756/- under "one time settlement" and requested to remit the amount before 30.06.2004. But he has not remitted any amount so far. Again vide letter dated 07.07.2004 he was called for a personal hearing so as to convince him the method of calculation. But complainant or his representative has not attended to this office and again requested for a detailed statement. Then again he was intimated to remit Rs. 1,93,227/- before 30.08.2004 after allowing "one time settlement" benefit of Rs. 36,280/-. But he is not clearing the dues and again requested for detailed statement. It is seen that the allottee is tactfully evading by submitting representation on due dates of remitting balance amounts”. It is to be noted that opposite parties did not submit detailed closing statement as on 23.06.2004, nor did opposite parties mention it in the version or affidavit filed by the opposite party, nor did opposite party file Ext. D1 along with version, nor did opposite party furnish any document to show that a letter dated 23.06.2004 was sent to the complainant informing him to remit the said amount. In his cross examination complainant has deposed that: “amount-ന്‍റെ വിശദവിവരം അറിയാന്‍ താങ്കള്‍ 1st opposite party -യെ സമീപിച്ചിട്ടില്ല എന്നു പറയുന്നു (Q) ശരിയല്ല. ഞാന്‍ പല തവണ അന്വേഷിച്ചു, രേഖാ മൂലം എഴുതി കൊടുത്തിരുന്നു. 1st opposite party- യുടെ office-ല്‍ ഒറ്റത്തവണയായി ഇടപാട് തീര്‍ക്കാന്‍ നിങ്ങള്‍ പോയിരുന്നോ? (Q) KSHB-യിലെ Regional Engineer -ടെ അടുത്തു പോയി അന്വേഷിച്ചിരുന്നു. Statement of "one time settlement" തരണമെന്നു പറഞ്ഞ് ഞാന്‍ ഒരുപാടു തവണ ടിയാളുടെ അടുക്കല്‍ പോയി. പക്ഷേ തന്നില്ല. താങ്കള്‍ 1st opposite party-യെ സമീപിച്ചിട്ടില്ല എന്നും ഈ കേസിന്‍റെ ആവശ്യത്തിനായി സമീപിച്ചു എന്ന് കളവായി മൊഴി നല്‍കുകയാണെന്നും പറയുന്നു(Q) ശരിയല്ല (A).

The onus is upon the opposite party to prove that timely intimation letter with detailed closing statement as on 19.05.2004 as per Ext. P5 Government Order was sent to the complainant. It is not in dispute that complainant has lodged application before the Board claiming the benefits of "one time settlement" as per Ext. P5 government order dated 07.02.2004. No documents furnished by opposite parties to show that the detailed closing statement as on 19.05.2004 extending all the concessions as per Ext. P5 Government Order dated 07.02.2004 with intimation letter was sent to the complainant in response to the claim for "one time settlement" moved by the complainant. Ext. D3 closing statement as on 01.09.2008 is not in connection with the claim for "one time settlement". If opposite party had served detailed closing statement as on 19.05.2004 extending all the concessions as per Ext. P5 government order dated 07.02.2004 to the complainant pursuant to the Ext. P6 order of the Hon’ble High Court, opposite parties would definitely have furnished the copy of the same before us to show that timely action was taken by opposite parties. In the absence of any cogent and clinching evidence showing the intimation letter was served to the complainant with detailed closing statement, extending all the concessions as per Ext. P5 Government Order dated 07.02.2004 and Ext. P6 High Court order dated 19.05.2004, we presume that no earnest efforts were taken by opposite to settle the claim of the complainant, extending all the concessions as per Ext. P5 Government Order dated 07.02.2004. Complainant ought to have got the benefit of "one time settlement" as per Ext.P5 Government Order dated 07.02.2004, if he applied for the same. Delay in taking action to that effect would definitely amount to deficiency in service which would also facilitate continuing cause of action in favour of the complainant. In view of the foregoing discussion and in the light of the evidence available on record, we are of the considered opinion that it will be expedient and justice will be well met if the complainant is allowed the benefits of "one time settlement" as on 19.05.2004 on the basis of Ext. P5 Government Order dated 07.02.2004.

In the result, complaint is allowed. Opposite parties are directed to settle the claim of the complainant under "one time settlement" as on 19.05.2004, extending all the concessions as per Ext. P5 Government Order dated 07.02.2004, for the remaining monthly instalments. Opposite parties shall prepare a detailed closing statement as on 19.05.2004 after allowing all the concessions as per Ext. P5 Government order dated 07.02.2004 and serve the same to the complainant, within two months from the date of receipt of this order. There will be no compensation and cost in facts and circumstances of the case.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of June 2009.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

C.C. No. 15/2007

APPENDIX

I COMPLAINANT’S WITNESS :

PW1 - K. Reghupathy

II COMPLAINANT’S DOCUMENTS :

P1 - Letter dated 02.02.1994 of the Regional Engineer, Tvpm Housing unit.

P2 - Copy of agreement for the sale of property and apartment dated 23.05.1994.

P3 - Letter Dated 24.05.1994 addressed to the Secretary, KSHE, Tvpm.

P4 - Original order dated 03.08.2006 of the Hon’ble Kerala Lok Ayuktha.

P5 - Copy of Government Order dated 07.02.2004.

P6 - Copy of Judgement dated 19.05.2004 of the Hon’ble High Court of Kerala.

III OPPOSITE PARTY’S WITNESS :

DW1 - K.P. Ushakumari

IV OPPOSITE PARTY’S DOCUMENTS :

D1 - Copy of letter dated 25.11.2004 issued by KSHB

D2 - Copy of letter addressed to the Deputy Secretary, KSHB, Tvpm.

D3 - Copy of detailed closing statement dated 23.05.2004.

PRESIDENT