BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD.
FA.No.711/2007 against C.C.No.03/2006, District Forum, Adilabad.
Between:
1. A.P.Housing Board, rep. by its Vice Chairman,
& Managing Director, A.P.Housing Board,
Gruhakalpa, Hyderabad.
2. A.P.Housing Board, rep. by its Executive Engineer
(Housing) A.P.Housing Board, Vinayaknagar,
Nizamabad. . .Appellants/
Opp.parties
And
A.Padma Latha, W/o.A.Amarender Reddy
Age 42 years, Occ:Business,
R/o.L.I.G., H.No.16, Old H.B.Colony,
Adilabad. Respondent/
Complainant.
Counsel for the Appellants: : Mr.D.Ranganath Kumar
Counsel for the Respondent. Mr.L.Dayakar Reddy
FA.No.289/2009 against C.C.No.03/2006, District Forum, Adilabad.
Between:
A.Padma Latha, W/o.A.Amarender Reddy
Age 42 years, Occ:Business,
R/o.L.I.G., H.No.16, Old H.B.Colony,
Adilabad, Adilabad District. Appellant/
Complainant.
And
1. A.P.Housing Board, rep. by its Vice Chairman,
& Managing Director, A.P.Housing Board,
Gruhakalpa, Hyderabad.
2. A.P.Housing Board, rep. by its Executive Engineer
(Housing) A.P.Housing Board, Vinayaknagar,
Nizamabad. . . Respondents/
Opp.parties
Counsel for the Appellants: : Mr.L.Dayakar Reddy
Counsel for the Respondent. Mr.D.Ranganath Kumar
QUORUM:THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
AND
SRI K.SATYANAND, MEMBER.
WEDNESDAY, THE TENTH DAY OF JUNE,
TWO THOUSAND NINE
ORAL ORDER: (Per Hon’ble Sri K.Satyanand, Hon'ble Member.)
***
These two appeals-appeal and cross appeal-arise out of the same order passed by the District Forum. As obviously they raise common questions of fact and law, they are taken up for disposal by a common order.
The facts that lead to filing these appeals are briefly as follows:
The complainant is a nominee of the deceased, by name, V.Shantamma. The said Shantamma applied for allotment of house constructed by the housing board way back in late 70’s. It seems A.P.Housing Board failed to make an allotment in her favour and as such, she filed a complaint in the District Forum, Adilabad in which an order was passed in her favour to allot a house bearing No.113, L.I.G. at Adilabad in Phase-III Colony in survey Nos.352 and 353. It appears she paid the entire consideration for the allotment totaling to Rs.76,100/-. At this stage, she claimed the delivery of possession of the said property in as much as she fulfilled her part of the agreement. However, she submitted a letter to the opposite parties after submitting original agreement, declaration nomination form etc. to intimate if any amount was due from her but before receiving the reply she died on 15-5-2004. The present complainant as the nominee stepped into her shoes and consequently addressed a letter of the same tenor. Thereupon opposite party No.2 representing the A.P.Housing Board at the ground level issued a letter demanding a huge amount of Rs.1,18,638/- as on 31-10-2005 presumably calculated by imposing interest on the original consideration amount etc. The complainant contended that in as much as the allotment was in pursuance of the original proceedings and in as much as the original allottee, Shantamma, had paid all the amounts leaving nothing outstanding due to the Housing Board, the further demand was untenable and therefore any impediment to the delivery of possession under the guise of the said demand was illegal and liable to be quashed: More particularly characterizing such obstruction as deficiency in service, the complainant preferred this complaint as her predecessor in title had left a contract in her favour which was totally fulfilled by the time of the former’s death. In other words, the case of the complainant was that the Housing Board was instrumental in sliding the date of allotment to the detriment of the complainant and thereby mulcted her with additional liability which was illegal and untenable.
This complaint had come to be resisted by the opposite parties, who filed a combined counter reiterating the reason for the demand on the ground that the circumstances including the price and delay had to be reckoned from the original date of allotment in the wake of the order of the District Forum and that in any view of the matter the demand by way of balance of Rs.1,18,638/- was subject to verification and confirmation.
In support of her case, the complainant filed her own affidavit and marked Exs.A1 to A15. Opposite parties appeared to have relied upon their counter as it was a counter affidavit and by way of documentary evidence filed Exs.B1 to B30.
On a consideration of the evidence adduced on either side, the District Forum did not accept the calculation of the opposite parties as demanded but calculated on the basis of the material available, the appropriate amount that was due from the complainant and quantified it as being Rs.76,929.50 ps. However, the District Forum passed an order directing in the first instance the complainant to pay Rs.95,000/- to the opposite parties within one month from the date of its order and thereupon the opposite parties to execute the regular sale deed in favour of the complainant within 30 days from the date of receipt of the said amount from the complainant.
Aggrieved by the said order, both parties preferred these appeals.
It is urged by the complainant/appellant that the direction to the complainant to pay Rs.95,000/- was baseless and not backed by any reasoning especially when the amount due from the complainant was nil. The District Forum failed to note that the house allotted to the complainant was originally allotted to third parties on 30-11-1992 and therefore charging of interest on the final amount from 27-10-1993 was illegal and arbitrary etc. The District Forum erred in not awarding damages though they caused so much mental agony. It failed to take note of the fact that the entire amount of final cost was paid by 10-9-2003 itself. The District Forum ought to have seen that the respondents fixed different rates for the house allotted to the complainant and the houses allotted to others even though they were constructed in the same phase. The District Forum failed to take note of the contradictory statements of the opposite parties with regard to the final rate of the house. The District Forum ought to have seen that the complainant had paid the entire amount of Rs.76,100/- only after receiving letter from the respondents stating that she had to pay only Rs.76,100/- while allotting the house in question as per their letter dated 20-1-2003.
Strangely the complainant/appellant came up with a prayer in the last paragraph which appears to be contradictory to her own grounds set forth above to the following effect:
“Appellant herein prays that this Hon’ble State Commission
may be pleased to set-aside the Judgement order passed by the
Hon’ble District Forum, Adilabad …………………. and direct the Respondents to calculate the interest amount on the allotted house of Appellant from the date of Agreement entered by Smt.Late.P.Shantamma on the fixed final cost of Rs.64,200……”
On the other hand, the opposite parties too assailed the order of the District Forum on the following grounds.
They also submitted that the stipulation of payment of Rs.95,000/- by the complainant was baseless especially when the amount due from the complainant was Rs.1,18,634/- as on 31-10-2005. The District Forum failed to see that the cost of house allotted in the year 2003 cannot be the same as the cost of the house allotted in the year 1990. The District Forum failed to see that the cost of the house was fixed at Rs.64,200/- for those allottees who were allotted the house in the year 1990 and the cost was revised to Rs.76,100/- in the year 1993. The said cost of Rs.76,100/- was demanded from the complainant with interest from 1993 till the date of allotment in the year 2003. The District Forum failed to see that this was not at all a consumer complaint and the complainant was not at all a consumer. The complaint was barred by limitation, it urged rhetorically.
Heard both sides.
The points that arise for consideration are 1) whether the complaint suffered from any infirmities thwarting the maintainability as urged by the opposite parties?
2) whether the relief granted by the District Forum is appropriate and inkeeping with the contentions raised by both sides?
3) Whether there are any grounds to interfere with modify or annul the order of the District Forum?
4) To what relief?
1. Opposite parties loosely urged that the complaint does not answer the description of consumer and the dispute raised is not a consumer dispute. We think this plea is repugnant to the very fundamental laws of the Consumer Protection Act. Admittedly the complainant was an allottee of the house by the developer, namely, the opposite parties, representing the Housing Board. Every grievance that springs from such kind of relationship has been characterized in number of decisions by both Hon’ble Supreme Court as also the National Commission as would squarely come under the jurisdiction of the Consumer Fora. We need not have to digress at length into that question, as it is well trodden. The other technical infirmity tried to be pointed out was that the complaint was barred by limitation. This again is absurd as, so long as delivery of possession in the wake of a concluded allotment remained in lurch. Even otherwise the allotment had occurred in the year 2003 but the Housing Board made demands impervious of further steps like delivery of possession which alone would consummate fruition of the contract for quite some time till 2004 as it appears from the record. Therefore this ground is equally untenable. These two impediments for maintainability are strikingly illusory. In other words, there is no substance in the argument of the opposite parties in this regard.
2. Now the most important issue that falls for consideration is whether the relief granted by the District Forum is in conformity or is inkeeping with the bone of contentions raised before it by both the parties. Basically the complainant relied upon the order passed by the District Forum in an earlier order in O.p.No.267/1996 which came to be confirmed by this Commission in F.A.No.672/1997. Admittedly that order was the foundation for the present appeal. In the said order, this Commission categorically directed the present opposite parties to allot to the complainant’s predecessor an LIG house or in the alternative MIG house on receipt of the differential payment. But it is the common case of both parties that ultimately the opposite parties allotted in the year 2003 to the original allottee, LIG bearing No.113 situated in survey Nos.352 and 353 of Adilabad. That means this allotment strictly speaking relates back to the original exercise that commenced some time about the year 1978 but which suffered severe birth pangs till the District Forum at Adilabad interfered in the matter at the instance of the complainant and rendered justice to the complainant’s predecessor in title. So the tentative fixation of the price ought to have come to finality as the allotment came to the actualized only in the year 2003. In the very year 2003 the final cost of the said house was fixed firmly at Rs.76,100/- as per Ex.A1. It is not in dispute that the entire amount was paid. The Housing Board however tried to recast the price of the house by adding to the said amount an additional component of interest reckoned from 1993 till the date of allotment in the year 2003 or the date of payment of the cost in full. Thus it is very clear that though the parties obfuscated the issue a lot, the appellant/Housing Board blurted out the actual facts that had happened in ground No.3 which reads as follows:
“The District Forum failed to see that the cost of the house
allotted in the year 2003 cannot be the same as the cost of the
houses allotted in the year 1990. The District Forum failed to see
that the cost of the houses was fixed at Rs.64,200/- for those
allottees who were allotted the houses in the year 1990 and the cost
was revised to Rs.76,100/- in the year 1993. As the present house
was allotted in the year, 2003, the said cost of Rs.76,100/- was
demanded from the complainant with interest from 1993 till the date
of allotment in the year 2003. Therefore the same cost was fixed for
the house allotted to the complainant as that of the other houses and
not a higher cost”.
So the very manipulation of the escalation of the price ultimately demanded by the Housing Board by sliding back the date of allotment to 1993 is totally illegal as it was only on its own fault that the allotment had come to be held up all these years for nearly 10 years as manifest from the earlier allotment. Therefore, it cannot rely upon its own mistake to bloat up the cost by including in it a component which it was illegal on account of its own mistake as confirmed by two judicial fora. As against the above version of the opposite parties, the complainant’s version appears to be that the price of the house allotted to her predecessor was liable to be firmed up at Rs.64,200/- on par with such a price collected from the allottees of the house in the year 1990 as her predecessor was supposed to be allotted in 1990 itself and her grievance had come to be remedied after a long legal battle that ended up in her favour on 5-6-2002 by passing an order in F.A.No.672/1997. She also filed copies of the comparable sales to prove her case i.e. Ex.A15. If we have to give a true effect to the order in F.A.No.672/1997 the price of the house that can be demanded must be on par with the sales pushed through to other allottees on the date she would have also been allotted but for some kind of unjust deprivation. It is rather incomprehensible as to how that amount could be altered unilaterally by claiming interest for that very same amount or some more from an antecedent date which has utterly no nexus with her allotment which came into being on 20-1-2003 to bloat up the price and make an unfair demand. Therefore the claim of the opposite parties to get interest from the year 1993 on an amount of Rs.76,100/- is fallacious and absurd on the face of it. No doubt the opposite parties are entitled to demand interest only for the delay in payment if any outstanding amount was due subsequent to the allotment. The complainant herself as an appellant presumably without analyzing his own case properly, made an offer in the appeal grounds to the following effect:
“Appellant herein prays that this Hon’ble State Commission
may be pleased to set-aside the Judgement order passed by the
Hon’ble District Forum, Adilabad passed in C.C.No.3/2006 dated 20th November, 2006 and direct the Respondents to calculate the interest amount on the allotted house of Appellant from the date of Agreement entered by Smt.Late.P.Shantamma on the fixed final cost of Rs.64,200/-“.
This is equally bewildering and inscrutable but yet the fact remains that the counsel for the appellant on behalf of the appellant/complainant voluntarily made an appeal in the appeal grounds and we cannot alter it, it operates like a concession on behalf of the appellant/complainant. Therefore, we have to strict to that offer and make it rule of the court in the place of operative portion of the order passed by the District Forum. On the other hand the case of the opposite parties in this appeal failed to make any sense in that they wanted nothing short of dismissal of the whole of the order made in C.C.
It is abundantly clear from the above discussion, that the quantification of Rs.95,000/- and saddling the complainant with the said liability cannot be sustained as there is absolutely no reasoning and our own examination of the record also fails to show any reason to uphold that quantification. However the fixation of the price being Rs.64,200/- and its applicability to the case of the complainant is amply made out by the record produced by both sides. The offer of the complainant to pay interest thereon without spelling out the date upto which such interest has to be computed makes it very cryptic and incomprehensible but the offer sounds as if the complainant is ready to confer some extra benefits on the opposite parties and we cannot come in the way. We therefore incorporate that offer culled out in her own language, in this order. However, the dates from which and upto which the interest has to be calculated have to be properly identified by applying sound principles of law, equity and good conscience. As per Ex.A1 the date of allotment is 20-1-2003. Again as per the same document the cost of the allotted house was fixed at Rs.76,100/-. As per Ex.B6 which is equal to Ex.A3 by 10-9-2003 the complainant’s predecessor paid the entire cost. So at the most interest has to be paid for the period in between as the Housing Board is entitled to claim interest for the delayed payment. Thus though there are no grounds to annul the order of the District Forum, it brooks interference by way of modification in terms of the finding under point No.2.
Accordingly both appeals are disposed of directing opposite parties to execute a regular sale deed in favour of the complainant within one month after receiving from the complainant an amount representing the interest calculated at 13.5% from 10-1-2003 till 10-9-2003 as also pay the complainant an amount of Rs.5000/- by way of costs. We hereby grant the opposite parties/appellants time of six weeks for compliance. In all other respects the order of the District Forum shall remain in tact.
PRESIDENT
MEMBER
Dated 10-6.2009
