Kerala

StateCommission

A/14/145

SECRETARY, KERALA STATE HOUSING BOARD - Complainant(s)

Versus

JAYAPRAKASH. K - Opp.Party(s)

MEENA.C.R

30 Mar 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NO.145/2014

JUDGMENT DATED:30/03/2016

 (Appeal filed against the order in CC.No.07/2011 on the file of CDRF, Thiruvananthapuram, order dated : 31.7.2013)

 

PRESENT

 

SHRI.K.CHANDRADAS NADAR  : JUDICIAL MEMBER

 

SHRI. V.V. JOSE                            : MEMBER

 

APPELLANT

 

          The Kerala State Housing Board,

          R/by the Secretary,

          Santhi Nagar,

          Thiruvananthapuram,

          Pin – 695001.

 

          (By Adv: Smt. Meena. C.R)

 

                                                          Vs.

 

RESPONDENT

 

          Jayaprakash. K.,

          S/o. Late N. Kesavan,

          Flat No.FF9/220, P.T. Chacko Nagar,

          Ulloor, Thiruvananthapruam – 15.

 

          (By Adv: Sri. B. Sakthidharan Nair)

 

JUDGMENT

 

SHRI.K. CHANDRADAS NADAR : JUDICIAL MEMBER

          The Kerala State Housing Board, the opposite party in CC No.07/2011 in the CDRF, Thiruvananthapuram is the appellant.  The respondent complainant was allotted apartment No.FF9-220 in the Housing Scheme of the opposite party called P.T. Chacko Nagar Accommodation Scheme, Ulloor.  The complainant had retired from service on superannuation on 31/05/2003 as an executive engineer of the opposite party. It is alleged in the complaint that he was allotted the apartment as per letter dtd.8/3/1993 and an agreement dtd.21.4.1993 was executed between the complainant and the opposite party.  As per the agreement the tentative cost of the apartment was fixed at Rs.4,14,667/- which was payable in monthly instalments of Rs.3,456/- within a period of ten years.  The interest portion amounting to Rs.1,98,608/- was payable in 36 monthly instalments at the rate of Rs.5,517/- over a period of 3 years after the payment of the principal amount.  The complainant remitted the instalments as recovery from his salary.   He had made lumpsum payments also.  While so as per the request of the complainant the outstanding balance  was adjusted by the 1^st opp. party from the DCRG due to him in view of the adjustment of the amounts due from DCRG, the complainant is not liable to pay any amount after 31.5.2003.  But the opposite party informed the complainant on 18.1.2005 that a sum of Rs.2,74,738/- had been adjusted from the pensionery benefits of the complainant towards the price of the apartment .  Thereafter the opposite party again collected additional amount from the complainant towards compensation remitted in LAR cases.  In spite of full payment made the opposite party had collected more amount from the complainant  and failed to execute sale deed in favour of the complainant.  Thereafter complainant received letter dtd.25.5.2009 from the opposite party demanding remittance of Rs.1,14,515/- as additional amount.   As per revised statement of accounts Rs.1,03,698/- was demanded on account of difference in cost, interest, LAR balance and miscellaneous .demands.  This according to the complainant was based on wrong calculation of the area of the land shared by the flat allotted to the complainant.  Hence the complainant wanted to set aside the demand dated 25.5.09 for additional amount of Rs.1,14,515/-.  A direction was also sought to execute and register sale deed in respect of the flat allotted in favour of  complainant .

          2.      The opposite patty contended before the consumer forum that the tentative cost of the flat was fixed at Rs.4,14,667/- as per clause 6 of the agreement executed between the parties.  The amount was payable in 120 monthly instalments at the rate of Rs.3,456/- from 10.4.93.  The interest portion amounting to Rs.1,98,608/- was payable in 36 monthly instalments at the rate of Rs.5,517/-.  The complainant had permitted the tentative cost of Rs.4,14,667/- by March, 2003.  When amounts were remitted in LAR case proportionate share of remitted amount was calculated and demanded from the allottees. The complainant had remitted Rs.7,910/ only.  At the request of the complainant the proportionate share of LAR remittances and interest portion of the tentative cost were calculated as Rs.57,061/- and intimated to the complainant on 4.3.2003.   Including the said amount Rs.1,98,530/-  and the interest portion  were recovered from the DCRG of the complainant. On 18.1.2005 the complainant was informed that Rs.2,74,738/-  had been adjusted from the pensionary benefits due to him.  On 12.6.2003 the opposite party deposited LAR claims on and demanded proportionate share from the allottees including the complainant.   On 16.7.07, the board finalised the scheme account including payments made up to 7.9.05 and all the allottees in the scheme were intimated the final cost.  Only 3 persons including the complainant failed to remit the amount demanded.  On final measurement the land area share of FF9 type flats was calculated as 75.13m2.  The delay in executing the sale deed is due to the non remittance of the final cost and additional land value as demanded by the opposite party.  There is no deficiency in service on the part of the opposite party.

          3.      Before the consumer forum the complainant was examined as PW1 Exts. P1 to P19 were marked on his side.  One witness was examined on the side of the opposite party as DW1.  Exts. D1 to D9 were marked on their side.  As per the impugned order the consumer forum cancelled Ext. P5 demand notice dtd.25.5.09 for Rs. 1,14,515/- issued to the complainant.  The forum further directed the opposite party to refund an amount of Rs.18,892/- to the complainant .  Further the opposite party is directed to execute and register sale deed in respect of apartment No.FF9-220 in favour of the complainant.  Compensation of Rs.10,000/- was also ordered to be paid.  The opposite party is challenging the correctness of the order. 

          4.      Complainant, an employee of the opposite party was allotted apartment No.FF9-220 in the housing scheme of the appellant called P.T. Chacko Nagar housing accommodation scheme, Ulloor.  Ext. P1 is the agreement dtd.21.4.93 executed between the parties.  The terms of the agreement are not in dispute and cannot be disputed also.  It is admitted that the complainant was remitting instalments due to the appellant as per the agreement and at the time of his retirement on superannuation adjustment of amounts due were made from his pensionary benefits including DCRG.  There is no dispute regarding theses aspects.  The dispute relates to the sum of Rs.1,14,515/-  demanded by the appellant as per Ext.P5 notice dtd.25.5.09.  According to the complainant already the entire amount was paid.  Hence the appellant is not entitled to demand this amount.  According to the appellant they had remitted LAR claims subsequent to the retirement of the complainant and he is still bound to pay the proportionate share of those remittances.  The Housing Board finalised the scheme account and demanded the balance due from all the allottees including the complainant.   As he failed to remit the amount demanded, sale deed was not executed. 

          5.      At the outset it may be mentioned that the consumer forum has no power to settle accounts between the parties  as per the agreement .  So whether the amounts as per Ext.P1 agreement was fully paid or amounts still remains to be paid is not a matter for adjudication by the consumer forum. The question is whether the appellant has committed any deficiency in service.  As per Ext.A1 it can be seen that the appellant formulated the housing scheme called P.T Chacko Nagar housing accommodation scheme and in pursuance of the scheme acquired land for the implementation of the scheme.  The land was parcelled out into a number of building plots and had constructed different types of residential flats and offered such flats to persons for residential purpose subject to the terms and conditions in Ext.P1.  This is the service offered by the appellant.   The tentative sum fixed and the repayment schedule provided are all parts of the consideration for the service offered. The point is deficiency in service can be attributed only with regard to the service part of the agreement.  Once service is provided, it is the duty of the allottee to pay the consideration which is agreed in specific terms in Ext.P1.  Since land was acquired and LAR cases were likely to be filed. Provision is made in Ext.P1 where by allottees agreed to pay the proportionate share as and when appellant made remittances to satisfy the awards in LAR cases.  This is also consideration part of the agreement and allottees of flats are bound to pay proportionate share.

          6.      In M/s. Narne construction pvt. Ltd. Vs. Union of India, 2012 (3)CPRI (SC) the Hon’ble Supreme Court of India held that the action of a builder involving offer of plots for sale to its customers with assurance of development of infrastructure or amenities lay out etc. is service within the provisions of Consumer Protection Act.  In Kerala State Housing Board Vs. P.V. Balasubramaniam 2008 (2)CPR 41, this Commission held that when the housing board had no consistent case regarding the area of the plot allotted the delay in execution of sale deed was not justified and amounted to deficiency in service.  In the present case, the justification in delaying execution of sale deed is failure to remit the amount demanded on final settlement.  This demand as seen already is demand of the consideration for the service availed from the appellant and the correctness of the demand can be adjudicated in a proceedings for settlement of accounts only as no deficiency is service is involved.

          7.      Apart from the contention that demand as per Ext.P5 was not justified, the complainant had alleged that the appellant purposefully delayed execution of the sale deed.  In this regard from the version it appears that the appellant deposited the amount as per the award in the LAR cases  on 2.3.07 but the final settlement of accounts in the scheme was made only much later  on 16.7.07.   This delay appears to be not fully justified and perhaps is the only deficiency in service committed by the appellant.  In this regard, it appears that the complainant himself retired on superannuation from the service of the appellant as executive engineer on 31.5.2003.  Till then he was part of an establishment which is apparently known for its delay and the complainant got the taste of the bitter pill which he himself was administering to allottees of the appellant’s scheme.  The consumer forum while allowing the prayer to cancel Ext. P5 demand notice was settling the account between the parties without sufficient evidence on record to adjudicate such an issue.  For the same reason the consumer forum was not justified in ordering refund of Rs.10,899/- to the complainant.  As per the agreement the complainant is entitled to get sale deed executed and registered in his name only on payment of the entire consideration.  The demand for balance amount due on final settlement of accounts of the scheme may be belated but not illegal as it is the consideration part of the service availed by the complainant.  So long as the demand is not satisfied the complaint is not entitled to get sale deed executed and registered in his name.  So the consumer forum was not justified in ordering compensation also.  In short, the appellant is entitled to succeed.  The complaint is not sustainable. 

          In the result, the appeal is allowed.  The order OF CRDF, Thiruvananthapuram, in CC No.07/2011, dated 31.07.2013  is set aside. The complaint is dismissed.  The parties are directed to bear their respective costs in the appeal.

 

K. CHANDRADAS NADAR  : JUDICIAL MEMBER

 

V.V. JOSE          : MEMBER

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KERALA STATE CONSUMER

DISPUTES REDRESSAL COMMISSION

 SISUVIHARLANE VAZHUTHACADU

 THIRUVANANTHAPURAM

 

 

 

APPEAL NO.145/2014

JUDGMENT DATED:30/03/2016

 

 

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