BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

SHRI. G. SIVAPRASAD                              :         PRESIDENT

SMT. SATHI. R                                  :         MEMBER

SMT. LIJU B. NAIR                           :         MEMBER

                                    C.C.No:  210/2011          filed on 21/06/2011

                                             Dated: 16..11..2013

Complainants:

1. T. Sudha Devi, w/o N. Das, Flat No. MF 5-222, Prashant Nagar, Fort, Trivandrum, presently residing at ‘Prashanthi’, Near Sreedevi Temple, Kallummoodu, Anayara – P.O., Thiruvananthapuram – 695 029.

            2. N. Das, Flat No.MF 5-222    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, Thiruvnanthapuram – 695 001.

         (Opp. Parties 1 & 2 by Adv. Meena C.R)

This C.C having been heard on 15..11..2013, the Forum on 16..11..2014 delivered the following:

ORDER

SHRI. G. SIVAPRASAD, PRESIDENT:

         The facts leading to the filing of the complaint are that in 1979 the complainants were allotted a Flat by the opposite parties, the Kerala State Housing Board, represented by its Secretary and the Regional Engineer, Trivandrum Housing Unit on a price of Rs. 27,600/-, that as per conditions of the allotment, the opposite parties fixed instalment schedule by which complainants were to remit the price in equal monthly instalments, that only after the same would the opposite parties execute the sale deed in favour of the complainants, that the terms and conditions also stipulate that the opposite parties can revise this tentative cost only in case of additional improvements made, or enhancement of cost due to disposal of land acquisition reference, if any, that an amount of Rs. 7,000/- which was initially deposited as security by the complainant, was adjusted towards the amount and a balance was to be paid in monthly instalments, that complainant diligently remitted each and every instalment in time. By 10/04/1991 the last instalment was paid and the same was entered in the pass book issued to the complainant by the opposite parties, that after the payment of the last instalment, the complainants were requesting the opposite parties to execute the sale deed at the earliest, but the opposite parties were lethargic in executing the sale deed, that there were stoic silence on the part of the opposite parties, that while so in between 1996 and 1998 certain residents of this housing colony were served with notice demanding arrear payments including huge interest, that they had denied the same and had approached this Forum and this Forum had way back in 2000 – 02 ordered that such demands made by the opposite parties were illegal, that complainants also requested a like decision in their favour . However, there was stoic silence for the past 10 old years, that fed up with the total lethargy, the complainants issued a letter in August 2010 to the opposite parties to execute the sale deed, that to the shock of the complainants, 1^st complainant was served with a demand notice dated 03/09/2010 calling upon him to pay an additional amount of Rs. 70,941/-, that opposite parties have malafidely issued such a demand in the aftermath of the complainants issuing letter demanding the execution of the sale deed. Hence this complaint to quash the demand notice dated 03/09/2010 issued by opposite party and to direct opposite parties to execute sale deed in favour of the complainants and pay compensation and cost.

         2. Opposite parties, on being served, entered appearance and filed their version contending inter alia that complainants were allotted a flat in Prasanth Nagar Housing Scheme and issued an allotment letter dated 14/06/1979, that the tentative cost of the land was fixed as Rs. 28,000/-, that complainants had remitted an amount of Rs. 7,000/- as initial deposit and balance cost of the property had to be paid in 144 EMIs at the rate of 10.5% from 10/08/1979, that the pass book entry ‘Nil’ shows, the complainant fully remitted the tentative cost of the flat, that the final cost was intimated to the complainants in the month of February 1998, that complainants  never requested to opposite parties for executing sale deed before 10/08/2010, that opposite parties sent reply dated 03/09/2010 to the application dated 10/08/2010 issued by the complainants, that opposite party has not demanded any amount on account of land acquisition cases, that after finalising the scheme account the opposite parties issued several demand notices from 2/98, but the complainants had not remitted the amount till date, that there is no deficiency in service on the part of the opposite parties. Complainants are not entitled to get any of the relief as prayed for. Hence opposite parties prayed for dismissal of the complaint with cost.

          The points that arise for consideration are:

1. Whether there is deficiency in service on the part of opposite parties?
2. Whether the complainants are entitled to get the reliefs as prayed for?

In support of the complaint, complainant has filed proof affidavit as PW1 and has marked Exts. P1 to P5. In rebuttal, the Junior Superintendent of the opposite parties’ office has filed proof affidavit as DW1and has marked Exts. D1 to D7.

         Points (i) & (ii) :  There is no dispute on the point that in 1979, the complainant was allotted a flat in Prasanth Nagar Housing Scheme bearing No. MF5-222/PRN on a price of Rs. 27,600/-. There is no dispute on the point that as per the conditions of allotment by Ext. P1 the complainant was to remit the price in equal monthly instalments. According to complainants, an amount of Rs. 7,000/- which was initially deposited as security by the complainants was adjusted towards the said amount and a balance was to be paid in monthly instalments as stipulated by the opposite parties. It is contended that complainants delegently remitted each and every instalment in time. That by 10/04/1991, the last instalment was paid and the same was entered in the pass book issued to complainants by opposite parties by Ext.P2. It has been contended by the complainants, that the balance was shown as ‘Nil’ by Ext. P2. That after payment of the last instalment, the complainants were requesting the opposite parties to execute the sale deed at the earliest, but opposite parties were lethargic in executing the sale deed. There was stoic silence for the past ten odd years. That fed up with the total lethargy, the complainants issued a letter in August 2010 to opposite parties to execute the sale deed. Meanwhile 1^st complainant was served with a demand notice by Ext. P3 dated 03/09/2010 by opposite parties calling upon the complainant to pay an additional amount of Rs.  70,941/- being the balance towards the opposite parties. Ext. P4 is the copy of the order dated  30/05/2000 in O.P. No. 314/1998 of this Forum in M. Sukumaran Vs Kerala State Housing Board and another. When the complainant approached the opposite parties in 2011 with the demand notice, though opposite parties earlier assured prompt redressal of the complainants’ grievances, they were informed that no reduction is possible and that the complainants are to pay an amount of Rs. 73,977/- inclusive of interest for delayed payment and (penal interest @ 100%) and the same was noted in the reverse of the demand letter dated 03/09/2010. Opposite party had led evidence by way of proof affidavit and by Exts. D1 to D5. Ext. D1 is the copy of the letter dated 10/08/2010 issued by the complainants to opposite party requesting for title deed. Ext. D2 is the copy of the reply dated 03/09/2010 issued in response to Ext. D1. Ext. D3 is the copy of the letter dated 07/02/1998, which was marked subject to objection. Hence the onus is on the part of opposite parties to prove Ext. D3. Ext. D4 is the copy of the agreement for sale of the flat dated 16/09/1979. Ext. D5 series include the copy of the demand notice issued to one Vinayakom and receipt issued by opposite party to the said Vinayakom. Ext. D5 series were marked subject to objection that those records were not having any link with this complaint. The issue herein is in connection with Ext. P3 demand notice dated 03/09/2010. In this connection it should be mentioned that complainant had already remitted the cost as per Ext. P1 allotment letter and by virtue of Ext. P2 pass book, complainant had remitted the said cost on 10/04/1991. Ext. P3 demand notice is seen served in the year 2010, that is after a lapse of more than 19 years of the last payment of instalment by the complainant. During cross examination, DW1 has admitted that the additional demand was not made on account of any LAR cases in connection with the impugned property. When asked about the basis of additional demand DW1 has deposed that the said demand is on the basis finalisation of scheme of account. Opposite party has never furnished any record showing the finalisation of scheme account, nor has opposite party mentioned the manner in which the said amount was arrived or calculated. Ext. D2 is the letter addressed to complainant simply asking her to remit further payment and nothing more. According to complainant, only if there is any grievance in the claim of the opposite parties, then complainant is bound to pay any sum. The onus is on the part of the opposite parties to substantiate their stand in the version with cogent and clinching evidence. Opposite party has failed to do so. There is no material on record to show the reason for issue of additional demand notice (Ext. P3) by opposite party to complainants. In the absence of any evidence in support of the version we are of the view that Ext. P3 demand notice issued by the opposite party is without basis. Further the said notice is seen issued by the opposite parties after a lapse of more than 30 years from the date of agreement for sale of the flat. Hence Ext. P3 demand notice deserves to be cancelled. That even after remittance of agreed amount by the complainant within time stipulated, opposite party has not come forward to execute the sale deed with respect to MF5/222/PRN flat. Non execution of sale deed by opposite party after accepting the agreed amount from the complainant would definitely amount to deficiency in service. Complainant is entitled to get the sale deed executed within a time frame.

         In the result, complaint is allowed. Ext. P3 demand notice dated 03/09/2010 issued by the opposite parties to complainants is cancelled. Opposite parties shall execute sale deed with respect to MF5/222/PRN flat in favour of complainant within 2 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 November 2013.

          Sd/- G. SIVAPRASAD   :         P RESIDENT

Sd/-   R. SATHI               :         MEMBER

Ad.                                  Sd/-  LIJU B. NAIR         :         MEMBER

C.C.No: 210/2011

APPENDIX

I.   Complainants’ documents:

          P1      :  Copy of the letter No.Estates B4.P.R MF5/4 issued by KSHB

          P2      :  Copy of passbook issued by KSHB, Thiruvananthapuram

          P3      :  Copy of letter dated 03/09/2010 No.E4/MF5-222/PRSN

          P4      :  Copy of Order dated 30/05/2000 of O.P.No: 314/1998

          P5      :  Copy of the statement of interest calculation

 II. Complainants’ witness:

          PW1  :         T. Sudha Devi

III. Opposite parties’ documents:

D1     :  Copy of letter dated 10/08/2010 issued from complainant to the  Executive Engineer, Division No. II

D2     :  Copy of letter dated 03/09/2010 issued by Executive Engineer, KSHB.

D3     :  Copy of letter dated 07/02/1998 issued by Regional Engineer, KSHB., Thiruvananthapuram.

D4     :  Copy of the agreement for sale of the flat

D5     :  Copy of the letter No.E7/MF5-120/PRSN dated 02/05/2012

D5(a) :  Copy of receipt for Rs. 50,000/- only issued by KSHB.

D5(b) :  Copy of duplicate receipt dated 23/06/2012 issued by KSHB

IV. Opposite parties’ witness:

          DW1  :         Kunjumon. G

                                                                                                                     Sd/-

PRESIDENT