Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The Complainant has presented this Complaint under section 12 of the Consumer Protection Act, 1986 contending that on 10.03.1992 the Opposite party had sanctioned an HIG Model House bearing No.40 situated at 4th Stage, Bogadhi, Mysore which was still under construction. Value of the flat was fixed at Rs.2,35,000/- and she had paid 25% of the value and requested the Opposite party to issue temporary possession certificate to enable her to seek loan. That on 28.07.2000, the Opposite party entered into a lease-cum-sale agreement with her but the file in the office of the Opposite party was misplaced, therefore registering of lease-cum-sale agreement was postpone for more than 5 years. That on 12.05.2005, the Opposite party issued a letter to her calling upon her to pay a sum of Rs.1,35,610/- towards the balance sale consideration amount and Rs.1,42,647/- towards interest. That she was not liable to pay interest as claimed by the Opposite party as the delay was due to the missing of file in the office of the Opposite party. That on 28.06.2005, she paid Rs.10,000/- and another sum of Rs.1,30,503/- on 05.11.2005, after payment of the said amount, the Opposite party executed lease-sale-agreement on 18.07.2005 and possession was also delivered on the same day. But when she approached the Opposite party to issue title deeds, the Opposite party demanded to pay the balance amount of Rs.1,35,610/- towards interest. Further on 04.04.2006, the Opposite party issued another endorsement calling upon her to pay Rs.1,00,726/- for transferring title deeds which is not proper and therefore she has prayed for an order directing the Opposite party to execute registered title deeds of the house allotted to her and to grant such other relief. <br /> 2. The Opposite party has resisted the Complaint with his version admitting the allotment of a house to the Complainant and fixation of the price of the house. It is further contended that a final notice on 06.08.1992 was given to the Complainant to pay the balance amount, but the same was returned with a shara “as no such door number”. Thereafter, the Complainant did not approach it and later on approached it, stating that original allotment letter was lost and requested for issue of duplicate allotment letter. The Complainant had not come forward for taking possession of the house and she only applied for possession on 18.04.2005 final price has been fixed at Rs.1,90,610/- on 29.04.1999 as the house was not completed, as per the Government Order dated 18.12.1997. Therefore, it issued a notice on the Complainant on 14.07.2005 to pay the balance amount with interest, for which the Complainant sought two months time and lease-cum-sale deed was executed on 18.07.2005 and possession certificate was issued on 18.08.2005. Therefore, the Complainant besides the scaled down amount of Rs.1,90,610/- is required to pay interest of Rs.1,05,709/- and she has paid in all Rs.1,95,593/- and balance of Rs.1,00,726/- is to be paid and thus contending that the Complaint is not maintainable has prayed for dismissal of the same.<br /> 3. During the enquiry of this Complaint, one Panduranga Setty a Power of Attorney Holder of the Complainant has filed his affidavit evidence reiterating the Complaint allegations and produced certain documents. On behalf of the Opposite party, the Assistant Secretary has filed his affidavit evidence reasserting the contentions they have taken in the version and they have also produced the original file pertaining to the case of the Complainant. <br /> 4. We have heard the counsel for the Complainant and Opposite party and perused the records.<br /> 5. On the above contentions, following points for determination arise.<br /> 1. Whether the Complainant proves that the Opposite party has caused deficiency in service in misplacing the relevant file, in not executing the lease-cum-sale agreement and charging interest for issue of title deed?<br /> 2. Whether the Complainant is entitled for relief as prayed for?<br /> 3. What order?<br /> 6. Our findings are as under:-<br /> Point no.1 : In the Negative.<br /> Point no.2 : Answered in the affirmative in part.<br /> Point no.3 : See the final order.<br /> <br /> REASONS<br /> <br /> 7. Points no. 1 & 2:- The fact that the Opposite party had allotted an HIG model house bearing No.40 on 10.03.1992 in favour of the Complainant and the cost of the house was fixed at Rs.2,35,000/- and the Complainant had paid 25% of the value are not at all in dispute. But it is the allegation of the Complainant that she then approached the Opposite party to issue temporary possession certificate to enable her to apply for loan and at that time she came to know the file of the Opposite party was missing and therefore, they delayed the execution of lease-cum-sale agreement for more than 5 years and therefore the Opposite party charging interest on the outstanding amount is not proper. The power of attorney holder of the Complainant has reiterated the same set of facts in the affidavit evidence, whereas the Opposite party has denied the same and contended that the Complainant herself thereafter did not turn up to their office and she approached them stating that the original allotment letter dated 10.03.1992 was lost and therefore applied for issue of a duplicate allotment letter and thereafter as the construction was not completed, the value of the flat was scaled down to Rs.1,90,610/- on as it is where it is basis as per Government order and of the Complainant took time to pay the balance amount with interest has come up with this Complaint. <br /> 8. We have perused the original file produced by the Opposite party. As per the note found in the file on 17.06.2003 the Complainant said to have given a representation to the Opposite party that the house temporarily allotted to her was not fit for occupation and therefore sought for allotment of a vacant site. That representation was under process and finally Opposite party held that a vacant site cannot be allotted on the ground that the house allotted to the Complainant was of a ground floor and for which a substitute vacant site cannot be allotted, this process found to had gone till the year 2003. Thereafter, it is further found from the file that somewhere during January 2005 the Complainant for the first time approached the Opposite party with a representation that original allotment letter given to her is lost and requested for issue of a duplicate allotment letter. The representation of the Complainant in this regard is found in the file and on the basis of such representation, the Opposite party found to had directed the Complainant to give a Complaint to that effect to the concerned police and also to file an affidavit to that effect. Accordingly, the Complainant gave an acknowledgement for having lodged a police Complaint and also filed an affidavit sworn to on 30.11.2004, in which she has categorically stated that the allotment letter dated 10.03.1992 she had obtained is lost and to issue a duplicate allotment letter. Accordingly, the Opposite party shown to had issued a duplicate letter dated 10.03.1992.<br /> 9. Thereafter, it is found the Opposite party vide his letter dated 10.03.1992 had called upon the Complainant to pay the balance amount of house allotted to her within 30 days from the date of receipt of the said letter and it was dispatched to the Complainant. Thereafter, the Opposite party again on 12.05.2005 sent another letter to the Complainant calling upon her to pay the balance amount of Rs.2,78,257/-. After receipt of the same, the Complainant gave a representation to the Opposite party on 25.05.2005 admitting the receipt of demand notice dated 12.05.2005 and stated that she is trying to take loan from a bank and requested two months time to pay the balance amount. These documents are found in the file of the Opposite party and relied on by the Opposite party are not controverted by the Complainant therefore they remain unquestioned. But, nowhere we find the basis for the allegation of the Complainant that the Opposite party had misplaced the file in it’s office and caused delay of more than 5 years to execute the sale-cum-lease agreement. All these notice found in the file of the Opposite party and correspondences that have taken place between the Complainant and the Opposite party proves the facts that the Complainant who had lost the allotment letter and who had at one stage applied for allotment of a vacant site in place of the house allotted did not approach the Opposite party to pay the balance amount and to obtain a lease-cum-sale agreement. It is on her approaching the Opposite party for the first time after 1992 for obtaining a duplicate allotment letter papers started processing on the initiation of the Complainant and on her paying a part of the value of the flat on 28.06.2005 and on 05.11.2005. The file further discloses that the house allotted to the Complainant had not yet been completed, therefore relying upon a Government order referred to above estimated the value of the flat as it is where it is basis and fix the value as Rs.1,90,610/- in place of 2,35,000/- and the Complainant was called upon to pay the balance amount and interest on the balance amount. The Opposite party has relied upon the Government order to this effect dated 18.12.1997. Therefore, if the Complainant had approached the Opposite party after 1992 till 1997 the Opposite party would have fixed the value of the incompleted building at Rs.1,90,610/- and on payment of the same by the Complainant would have executed the lease-cum-sale agreement. The Complainant did not turn up to them and only turned up to their office in the year 2004 onwards and asked for execution of a lease-cum-sale agreement and on payment of a partial amount, lease-cum-sale agreement came to be executed in her favour on 18.07.2005 and possession was delivered to her on 18.08.2005. The Complainant therefore who had slept over on the issue till 2005 cannot complain against the Opposite party and claim exemption of payment of interest of the outstanding amount. <br /> 10. The learned counsel appearing for the Complainant placed reliance on a decision of this Forum rendered in CD 178/03 dated 04.02.2004 and argued that there was lapse on the part of the Opposite party in not executing the lease-cum-sale agreement, therefore the Opposite party is liable to interest at 18% p.a. on the amount paid by the Complainant and that should be adjusted towards the amount due to the Opposite party. Nodoubt, in the order of this Forum in the matter referred to above the Forum finding deficiency in service of the Opposite party and by placing reliance on a decision of Hon’ble National Commission reported in 2002 CTJ page – 365 between Hariyana Development Authority –Vs- Darsh Kumar has held that the Opposite party is liable to pay interest at 18% p.a. on the amount paid by the Complainant, which was utilized by the Opposite party but not completed the building and that to be adjusted towards the amount due to the Opposite party. But the facts of this case are not similar to the facts of the case under reference. In the instant case, the Complainant herself was of fault in not pursuing her claim with the Opposite party. Therefore, the Opposite party on the basis of the Government order fixed the value of the flat as Rs.1,90,610/- and calculated interest at Rs.1,05,709/- which came to be Rs.2,96,319/- and after deducting the amount paid by the Complainant Rs.1,95,593/- has called upon the Complainant to pay the balance amount of Rs.1,00,726/- which in our view cannot be found fault with. Thus on consideration of the entire materials on record, we are inclined to hold that the Complainant has failed to prove the deficiency in service of the Opposite party causing delay in getting lease-cum-sale agreement executed. The Complainant therefore in our view is liable to pay interest as claimed by the Opposite party as she did not pay the balance amount within reasonable time that is around the year 1997 and therefore on her paying the balance amount she would be entitled to the relief of getting a registered title deed executed by the Opposite party. With the result, we answer point no.1 and 2 accordingly and pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is allowed in part.<br /> 2. The Opposite party is directed to execute registered title deed in respect of the flat allotted to the Complainant on her paying the balance amount of Rs.1,00,726/- with any other statutory payments and expenses.<br /> 3. The Opposite party is directed to execute the title deed within 30 days from the date of payment of the balance amount as stated above, failing which the Opposite party shall pay a compensation of Rs.5,000/- to the Complainant and in case of further delay beyond 30 days as indicated above it shall also pay interest at 15% p.a. on Rs.5,000/- until this order complied with.<br /> 4. Return the original file to the learned counsel for Opposite party.<br /> 5. Parties to bear their own costs.<br /> 6. Give a copy of this order to each party according to Rules.<br /> <br />