RESERVED
State Consumer Dispute Redressal Commission, Uttar Pradesh
Lucknow
Appeal No. 2417 of 2003
U.P. Housing Board & Another.
….Appellants
Versus
Mahesh Chandra Gupta.
……Respondent
Present:-
- Hon’ble Sri Udai ShankerAwasthi, Presiding Member.
- Hon’ble Sri Mahesh Chand, Member.
Sri N.N.Pandey, Advocate for the Appellant.
None for the Respondent.
Date: 27.04-2016
Judgment
Sri Mahesh Chand,Member-This Appeal has been filed by U.P. Housing Board through its commissioner, Lucknow & Estate Management office through its Assistant Commissioner, Kanpur Nagar against the order dated 4.4.2003, passed by learned District Consumer Dispute Redressal Forum, Kanpur Nagar, in complaint case No 462/2001. Mahesh Chandra Gupta vsU.P. Housing Board & Another.In brief the facts of the case are that the Complainant applied for allotment of a semi finished house measuring plot area 108.50 sq.mts whose initial proposed cost was Rs380,000/-. This house was to be allotted in Scheme No 1,Pankai Road, Kalyanpur, in Kanpur Nagar. He had sent the application form along with the registration fee of Rs40,000/- on 8.3.1999. The allotment of the house was to be done by lottery system. As per conditions mentioned in broacher booklet the corner plot would cost 10% more. The said scheme was under the name Self Finance Scheme-98. The complainant received a letter No 1261/SFS-1998 dated22.4.1999 under the signature of the opposite party No 2 on 25.4.1999 wherein it was stated that his application has been accepted and hewas asked to deposit the amount as per directions therein. The opposite party No2 vide its
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letter No. 4494 dated 14.12.1999 informed the applicant/complainant that the house No H-813 has been allotted to the applicant by draw of lottery. Before this intimation, the complainant had deposited as sum of Rs 190,000/- by 22.5.2000 in installments as per demand. The allottee received another letter No 2324 dated 2.8.2000 wherein it was mentioned that the said allotted plot No H-813 is a corner plot measuring area 213.19 sq, mts and its complete cost ( including semi finished house on it) is Rs722,172/- and the entire cost was to be deposited by 31.8.2000. It caused a lot of mental agony to the complainant as the purchasing power of the complainant was limited upto Rs450,000/- only while the he was asked to deposit the total amount of Rs722,172/- within a short period of 20days. The complainant could deposit total amount of Rs626,250/- by 30.8.2000 by arranging loan at very higher rates. The original scheme was for semi finished houses measuring area 42 sqmtson plot size of 108.50 sq. mts.But due to doubling of the plot size the allottee had to bear unnecessary loss. The complainant has alleged that the demand of 10% extra charges on account of corner plot and 12% charges on account of freehold charges are illegal and be refunded with interest @ 24%. The opposite party No2 opposed the complaint case and said that the complainant deposited the amount of the house as per terms and conditions and the possession was given to him. They contested the case before the learned District Forum. After hearing both the parties and perusing the evidences, the learned District Forum passed the impugned order as being quoted here:
“ The complainant’s case is partially accepted. The opposite party is directed that they charge the cost of entire plot No H-813 measuring size 213.19sq. mts @ as for the plot size measuring 108.50 sq. mts. The extra amount charged from the complainant be refunded to the complainant with interest @10% from the date of the payment of last installment. Complaint for other reliefs is dismissed”
Beingaggrieved with the order of the learned District Forum the opposite parties/ Appellants have filed the Appeal. The Appellant have taken the following
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grounds in the appeal. There was no deficiency in service on the part of the appellant. The allotee/complainant was informed of the area and the cost of the land vide letter dated 2.8.2000 and he had agreed with the allotment and cost of the house and also deposited Rs 626,250/- by 31.8.2000. The complainant had requested the appellant to deposit the balance amount in installments. On the request of the complainant, the appellant entered into an agreement. According to the agreement, the complainant was required to pay the balance amount of Rs132,305/- in equal monthly installments of Rs2441/- in nine years with 17.5 % interest. The possession of the said house was given on 12.12.2000 . Copies of the agreement, and possession letter have been filed with the appeal. That after taking possession of the house and making few installments, the complainant has stopped paying the other installments and thus violated the terms and conditions of the agreement. The respondent/complainant have contested the appeal and filed his objections. Both the parties have filed their written arguments also.
The case was put up before us for hearing. Learned counsel for the appellant, Mr. N.N. Pandey is present. No body is present from the respondent’s side. Heard the arguments of the learned counsel of the appellant. So far as the question of arguments of respondent’s side is concerned, we are taking note of the written arguments submitted by his counsel.
Firstly We are taking up the written submissions of the respondent. In these submissions stress has been given on delay in filing the appeal and alleged that the appeal has been filed at the delay of 128 days and no reasonable explanation has been given for this delay. Another plea have been taken regarding the pricing of the land of the allotted house. It has been argued that there can not be two prices in one plot of land. In the instant case the total area of the plot is 213.19 sqmts. out of which 104.69 sqmts area has been charged/priced at the rate of Rs1850/- per sqmt and rest has been charged/priced at the rate of Rs2150/- per sqmt. The corner charges and freehold charges have also been objected.
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We have perused the record on file. We see prima facie merits in the Appeal. So in the interest of justice the delay in filing the appeal is condoned. The learned counsel of the appellant has drawn our attention towards the agreement between the parties. The respondent/complainant can not backtrack from the terms and conditions of the agreement. After taking possession of the house he has stopped making payment of the balance installments. He has violated the terms and conditions of the agreement. The learned counsel for appellant also mentioned about Judgment passed by Hon’ble National Commission in the matter of Sahara India Commercial Corporation vs C. MadhuBabu- CPJ(2011) 3 (NC) in which the Hon’ble National Commission has held:
“Consumer Fora have to consider relief in the light of written agreement and it is not open to them to add or subtract any condition or word –order of Fora below set aside”
Here in this case also the complainant can not runaway from the terms and conditions of the agreement between him and the Appellant. These terms and conditions are binding upon the allottee/complainant. The learned counsel of the appellant drew our attention towards the pricing of the housing property. He argued that the pricing of the property or goods is beyond the jurisdiction of consumer forum. He mentioned about the judgment passed by Hon’ble National Commission in the matter – BK Chaturvedi vs. U.P. Awas Vikas Parishad, CPJ(2006) 369 (NC) in which the Hon’ble National Commission have held :
“Question of pricing – Contention, Complainant liable to pay price which was reflected in the broucher at the time of floating scheme- Rejected for reasons- Firstly, consumer forum can not go into the question of pricing- Secondly, complainant made no protest about new price- In fact some installments paid by him- Raising of said issue after 5-6 years of taking possession appears to be after thought.- No merits of it in plea of complainant.”
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In the instant case the Complainant/Respondent after entering into an agreement with the Appellant and taking possession of the house, cannot challenge its pricing. Either he should have rejected the offer of allotment at the initial stage and if he has entered into an agreement with the appellant then he is bound by its terms and conditions. After taking possession of the house on installment basis he cannot stop paying the balance installments. Housing Board is at liberty to recover the balance amount as per provisions of its rules and regulations. In our opinion the learned District Forum have gone beyond its jurisdiction in fixing the price of the house allotted to the complainant.
In the light of above discussions and observations the impugned judgment of the learned District Forum is liable to be set aside.
Order
In the light of above discussions and observations the Appeal is allowed and the impugned order of the learned District Forum, Kanpur is set aside. Parties will bear own costs. Hence No order to the costs.
(Udai Shanker Awasthi) (Mahesh Chand)
Presiding Member Member
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