BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No: 76/2009 Filed on 07/04/2009

Dated: 16..04..2012

Complainant:

S.R. Sudha, w/o Jeevan Sadasivan, Flat No.106, FF 3(a)- 106, Swathy Nagar, West Fort, Thiruvananthapuram. Represented by her father and Power of Attorney Shri. N. Ramachandran, Flat No.106, FF3(a)-106 of ..do.. ..do..

(By Adv. Narayan. R)

Opposite parties:

1. Kerala State Housing Board, Thiruvananthapuram – 695 001. Represented by its Secretary.

2. Regional Engineer, Trivandrum Housing Unit, Kerala State Housing Board, Thiruvananthapuram – 695 001.

(By Adv. SAJI. S.L)

This O.P having been heard on 23..03..2012, the Forum on 16..04..2012 delivered the following:

ORDER

SHRI. G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, in 1986, the complainant was allotted a flat bearing No. FF 3 (a)-106 for a tentative cost of Rs. 2,16,790/- by the 2^nd opposite party, Regional Engineer, Trivandrum Housing Unit, Kerala State Housing Board, payable at monthly installments, that as per the conditions of allotment opposite parties fixed an installment schedule, as per which the complainant was to remit the price in equal monthly installments, that only after the same would the opposite parties execute the sale deed in favour of the complainant, that accordingly complainant diligently remitted each and every installment in time, that the terms and conditions also stipulated opposite parties can revise the tentative cost only in case of additional improvements made or enhancement of cost due to disposal of land acquisition reference, if any, that complainant had agreed to the said terms and conditions of the opposite parties and thus an agreement was executed on 28/01/1987 by which complainant was allotted a flat bearing No. FF3 (a)-106, that by 12/08/1994 the last installment was paid and the same was entered in the pass book issued to the complainant by the opposite parties, that as per the terms of the agreement opposite parties had to provide for the flooring and electrification of the flat, that opposite parties failed to do so and the complainant herself took the said task, that though opposite parties had agreed to refund the amount spent towards the same from the tentative cost, the same has not been done till date, that complainant was requesting the opposite parties to execute the sale deed at the earliest, but opposite parties were putting of the same on some flimsy ground or other, that all attempts made by the complainant and the Residents Association to get the sale deeds executed by opposite parties amicably, ended in failure, that complainant and similarly situated persons had threatened legal action, if the opposite parties do not execute the sale deed, that following the same, complainant was served with a demand notice dated 5/02/2009 by opposite parties calling upon her to pay an additional amount of Rs. 91,260/- being the balance amount towards the opposite parties, that the same was stated to be the difference between the tentative cost and final value, that the action of the opposite parties in not executing the sale deed in favour of the complainant amounts to unfair trade practice and deficiency in service. Hence this complaint to quash the demand notice dated 5/02/2009 for Rs. 91,260/- issued by opposite parties to the complainant and direct opposite parties to execute sale deed in favour of the complainant and pay compensation and cost.

2. Opposite parties filed version contending inter alia that the Flat No.FF3 (a)-106 was allotted in the name of complainant for a tentative cost of Rs. 2,16,790/-, that complainant accepted the allotment and remitted the initial deposit of Rs.75,875/- and an agreement was executed on 28/01/1987, that prior to the execution of the agreement the tentative cost was refixed as Rs. 1,83.800.85/- and adjusted the initial deposit and allowed hire purchase facility to remit the balance amount of Rs. 1,07,925.85/-, that the EMI was Rs. 2,282/- starting from February 1987 for a period of six years, that complainant was irregular in paying the EMI and she is liable to pay the penal interest, that the complainant and other allottees in this scheme were allowed to execute the electrical fittings and flooring works and cost for the same were not included in the final cost, that complainant had remitted Rs. 1,64,282/- which was adjusted as Rs. 1,05,465.26/- towards principal and Rs. 58,816.74/- towards interest, thus complainant was liable to remit a further amount of Rs. 2,460.74/ towards the principal amount as on 12/8/1994, that complainant is liable to pay the penal interest on defaulted payment, that opposite parties have finalised the scheme account based on the expenditure incurred and thus intimated the final cost to all the allottees, that complainant is liable to remit the difference in final cost and tentative cost with interest, that the difference in cost is due to the price enhancement of land cost on the basis of the final decision of LAR cases and the actual construction cost of the building, that there are 5 LAR cases with respect to the acquisition of land for the said scheme. Hence opposite parties issued additional demand notice for Rs. 91,260/-, that there is no deficiency in service on the part of opposite parties. Hence opposite parties prayed for dismissal of the complaint.

3. The points that arise for consideration are:

1. Whether there is deficiency in service on the part of the opposite parties?

2. Whether the complainant is entitled to get any reliefs prayed for?

In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 to P5. In rebuttal, Assistant Secretary of Kerala State Housing Board has filed proof affidavit. But opposite parties have not furnished any documents.

4. Points (i) & (ii): There is no dispute on the point that in 1986 complainant was allotted a flat bearing No. FF 3(a)-106 for a tentative cost of Rs.2,16,790/- by the 2^nd opposite party. There is no dispute on the point that as per the conditions of the allottment complainant was to remit the price in equal monthly installments. Admittedly, agreement was executed on 28/01/1987. Ext. P1 is the copy of the provisional allotment of flat No. FF 3(a)-106. As per Ext. P1 complainant was requested to remit the initial deposit of Rs. 75,875/- within 30 days as stipulated in clause VII of the conditions of allotment, and that the tentative cost of flat allotted was at Rs. 2,16,790/-. Complainant was also requested to produce the documents stated in Ext. P1. It is further stated in Ext. P1 that if the certificates etc... are not produced and the payment as required is not made by complainant on or before 29/09/1986 the allotment is liable to be cancelled. Ext. P2 is the duplicate prospectus and conditions of allotment. Ext. P3 is the copy of agreement for sale of the property and the apartment executed between the opposite party and the complainant on 28/01/1987. As per the agreement the cost of land and price of the flat constructed upon the property is tentatively fixed at Rs. 1,83,800.85/- and parties agreed that the sum of Rs. 75,875/- deposited with the Board as security has been adjusted towards the price of the apartment, land, service charges that after such adjustment a sum of Rs. 1,07,925.85/- remains payable as the outstanding balance of price of the apartment, that the balance amount of Rs. 1,07,925.85/- shall be payable @ Rs. 2,282/- per each installment over a period of 6 years as from the month of February 1987. Ext. P4 is the copy of the pass book issued to the complainant by the opposite parties. A perusal of Ext. P4 reveals total amount to be realised from the allottee is Rs. 1,07,925.85/- and monthly installment fixed at Rs. 2,282/-. It is further stated that the installment of Rs. 2,282/- shall be paid on or before the 10^th day of every month. A perusal of Ext. P4 reveals that complainant had ever diligent in paying the whole amount as specified in the agreement and the last payment was made on 12/08/1994. Ext. P5 is the copy of the demand notice dated 05/02/2009 issued by opposite parties to complainant directing him to remit an amount of Rs. 91,260/- being the balance amount towards the opposite parties, that the said amount was stated to be the difference between the tentative cost and final cost as on 28/02/2009. The power of attorney holder of the complainant was examined as PW1. PW1 denied the suggestion putforth by the opposite parties that the entire tentative cost was not remitted by the complainant. PW1 has deposed that complainant was not aware of pendency of LAR cases. PW1 has deposed that complainant has remitted the entire amount as per the terms of the agreement. In refutation opposite party has not filed any document except oral testimony of Assistant Secretary, Kerala State Housing Board. Opposite party has not furnished any material to show that there were any LAR cases in connection with the said allotment. There is nothing on record to show that opposite party had spent the alleged amount. In her cross examination opposite party has mentioned about 5 LAR cases. DW1 has admitted that in Ext. P4 pass book issued in the name of complainant, the balance amount has been recorded as 'Nil'. According to DW1 the additional demand notice was issued to complainant on the basis of the decision of LAR cases. Complainant has no knowledge of the pendency of LAR cases. Though opposite party had contended that they had informed the complainant of the pendency of LAR cases, there is nothing on record to substantiate the same. It is the duty of the opposite party to substantiate their stand in the version by producing judgement of the aforesaid LAR cases and by producing other materials to substantiate that they had spent such and such amount for additional improvements made or enhancement of cost due to the disposal of land acquisition cases. In the absence of evidence in support of the version we find the additional demand notice issued by opposite parties has no merits at all. In view of the above discussion and evidence available on records we are of the considered opinion that the demand notice dated 5/02/2009 issued by opposite parties to complainant deserves to be cancelled. There is deficiency in service from the side of the opposite parties. Complainant is entitled to get the sale deed executed.

In the result, complaint is allowed. Additional demand notice dated 05/02/2009 issued by the 2^nd opposite party calling upon the complainant to pay an additional amount of Rs. 91,260/- is cancelled. Opposite party shall execute the sale deed in favour of the complainant within two months from the date of receipt of this Order. In facts and circumstances of the case, there will be no order as to compensation and cost.

.

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 16^th day of April, 2012.

sd/-

G. SIVAPRASAD

PRESIDENT. sd/-

BEENA KUMARI .A,

MEMBER.

sd/-

S.K. SREELA,

MEMBER.

ad.

C.C.No: 76/2009

APPENDIX

I. Complainant's documents:

P1 : Copy of the provisional allotment of flat No. FF 3 (a)-106

P2 : Duplicate prospectus and conditions of allotment

P3 : Copy of the agreement for sale of the property and the apartment executed between the opposite party and the complainant on 28/01/1987

P4 : Copy of the passbook issued to the complainant by the opposite parties.

P5 : " demand notice dated 5/2/2009 issued by the opposite parties to complainant.

II. Complainant's witness:

PW1 : Ramachandran

III. Opposite parties' documents : NIL

IV. Opposite parties' witness:

DW1 : Vasanth. M

sd/-

PRESIDENT