Per Mr S M Shembole, Hon’ble Presiding Member
Challenge in both these appeals is the judgement & order dtd.28.03.2011 passed by District Consumer Forum, Nagpur in CC No.CC/10/107. Appeal No.A/11/36 is filed by original complainant – Umakant, whereas appeal No.A/11/298 is filed by original opposite parties.
(For the sake of brevity, appellant in appeal No.A/11/36 is hereinafter referred as “complainant” and appellants in appeal No.A/11/298 as “opposite parties”.)
Since both these appeals are against the same judgement & order, we decided it to dispose of it by this common judgment.
Brief facts giving rise to these appeals are that:-
1. O.ps are engaged in the business of housing development & construction. They had floated a scheme at Nagpur. From its Unit ‘C’ a flat was booked by Deorao, who is brother of complainant – Umakant. The price of the flat was fixed at Rs.16,75,000/-. Subsequently, it was increased by Rs.63,594/-. It was agreed to pay the amount of consideration by 38 monthly instalments. As per agreement, said Deorao initially paid the instalments. However, subsequently, on 31.08.2007, with the consent of the o.ps., the same flat came to be allotted to the complainant and the o.ps. transferred the same flat in the name of complainant and by letter dtd.02.06.2008 communicated to the complainant giving advance coupon bearing No.9840000200745. Since then the complainant was regular in payment of monthly instalment. Thus, the complainant and his brother made total payment of Rs.9,79,226/- till 13.05.2009.
2. However, after 13.05.2009 complainant could not pay monthly instalment as his father was seriously ailing from cancer and he was required to spent amount of Rs.3.00 Lac towards medical expenses. He informed the o.ps by giving letter with medical case papers. However, the complainant was ready and willing to pay the dues by borrowing bank loan. At the time of booking the flat the o.p.s had assured the complaint that if any loan is required for payment of the instalments, they would co-operate fully for obtaining the loan. By letter dtd. 18.05.2009 the o.p.s also informed the complainant that the renouned financial institutes have approved their project and these institutions are ready to provide easy financial facility. Therefore, the complainant approached the Axis Bank Ltd., - one of the financial institutions, who approved their project for providing the financial aid to the consumers. The said Bank also sanctioned the loan to the complainant & by letter dtd.01.09.2009 informed the complainant to submit registered agreement of sale for disbursing the loan amount. However, in spite of repeated requests, o.ps. failed to execute the deed of agreement of sale. Lastly the complainant issued legal notice asking the o.ps to execute the agreement to sale. But the o.ps did not comply with the notice. Therefore, the complainant made complaint with District Consumer Forum, Nagpur.
3. In response to the notice the o.ps appeared before the District Consumer Forum, Nagpur and resisted the complaint, contending, inter alia, that the complainant himself committed default in making payment of monthly instalments and therefore, by giving three reminders it has cancelled the flat booking agreement. However, it is contended that the claim made by the complainant is not tenable before the Forum as there is an arbitration clause in the agreement. Therefore, the complainant ought to have applied for appointment of arbitrator or ought to have filed civil suit, etc. On these grounds, it is submitted to dismiss the complaint.
4. On hearing both the sides and considering the documents on record, the District Consumer Forum, Nagpur held that the Forum has jurisdiction to entertain the complaint. It is further held that the o.p.s committed deficiency in service by not executing the agreement for sale in favour of the complainant. It is also held that o.ps., without prior notice, arbitrarily cancelled the flat booking. The Forum also held that complainant is liable to pay interest on dues as he committed default in payment of instalments. In keeping with these findings, the Forum partly allowed the complaint and declared that o.ps. committed deficiency in service and cancellation of flat booking by them is illegal. The Forum directed the o.ps to execute the agreement for sale in favour of the complainant within 30 days from the date of impugned order and thereafter the complainant shall pay dues with interest within 60 days to the o.ps. The Forum further directed the o.ps to pay compensation of Rs.10,000/- towards physical & mental torture and Rs.2,000/- towards cost of proceedings to the complainant.
5. Feeling aggrieved by the said judgement & order, the o.ps filed appeal bearing No.A/11/298 and by appeal bearing No.A/11/36 complainant challenged the said impugned judgement & order in respect of direction to pay the interest on the amount of dues.
6. We heard Ld. Counsel for both the sides at length and perused the copy of the impugned judgement & order and also copies of documents filed in both the appeals.
7. Undisputed facts are that initially the flat, in question, was booked by the brother of the complainant for a consideration of Rs.16,75,000/- and subsequently the price was increased by Rs.63,594/-. Brother of the complainant paid monthly instalments till 04.08.2007. Thereafter, on 31.08.2007, the same flat was transferred in the name of complainant with the consent of o.ps & by letter dtd.02.06.2008 the complainant was informed about the transfer of flat in his name by giving advance coupon. Thereafter, the complainant paid monthly instalments regularly till 13.05.2009. Thus, admittedly, the complainant and his brother made total payment of Rs.9,79,226/- to the o.pls. However, thereafter, the complainant could not pay the monthly instalments as he was required to spent huge amount of about Rs.3.00 Lacs for medical treatment of his father and accordingly, by letter dtd.14.08.2009 it was informed to the o.ps. and further informed that the complainant is ready & willing to pay the remaining instalments with interest by borrowing bank loan. It is also admitted fact that by letter dtd.18.05.2009 the complainant was informed by the o.ps that renouned financial institutions have approved their project and ready to provide easy finance facility to the customers. Therefore, the complainant approached the Axis Bank Ltd. On his request Axis Bank sanctioned loan vide letter dtd.01.09.2009, asking the complainant to submit registered agreement of sale. But the o.ps. have not executed the agreement of sale. It is also not disputed that the complaint was tenable before the Consumer Forum though it was averred by o.ps. that the Forum have no jurisdiction to entertain the complaint. The same point is not agitated before this Commission. It is also not disputed that on 24.09.2009 complainant paid an amount of Rs.25,000/- by issuing a cheque in favour of the o.ps. towards interest on the due amount till that date. The complainant by letters dtd.14.08.2009, 03.09.2009, 15.09.2009 & 04.11.2009 informed the o.p. that bank has sanctioned the loan and for disbursement of loan amount registered agreement to sell is required.
8. The crux of this matter is as to whether the o.ps committed deficiency in service by not executing the agreement to sell and cancelling the flat booking without prior notice. Further whether the complainant has committed default in payment of instalments and if yes, is he liable to pay interest on the due amount.
9. Giving much stress on the copy of statement of account of monthly instalments paid by the complainant and his brother, it is vehemently argued by the Ld. Counsel for the o.ps that the complainant was irregular in payment of monthly instalments. It is further argued that though three reminders vide letters dtd. 30.05.2009, 17.06.2009 & 30.06.2009 were issued to the complainant regarding the payment of instalments, complainant failed to pay the instalments. Hence, flat booking was cancelled vide letter dtd. Nil. Relying on the following decisions, it is contended by the Ld. Counsel for the o.ps that they have not committed any deficiency in service:-
a. I (2011) CPJ 486 (UP SCDRC – Lucknow) –
Agra Development Authority & Anr. Vs. Suman Lata Gupta
b. II (2011) CPJ 85 (AP SCDRC – Hyderabad)
Vitthala Usha Rani & Anr. Vs. Vishal Projects Ltd
10. However, the complainant disputed the reminders and further submitted that reminders were not issued before filing the complaint. It is further submitted on behalf of the complainant that the reminders are concocted and prepared subsequently. On perusal of these letters it does not reflect that these letters were sent to the complainant on the dates shown therein. When the o.p.No.1 is a registered company, it must have maintained the inward and outward registers and if these letters would have sent to the complainant the entry to that effect would have been made in the outward register. But no such record is produced by the o.ps. Therefore, Ld. Members of the District Consumer Forum, Nagpur have rightly held that these letters are prepared subsequently. During the hearing before this Commission also, o.ps. could not explain as to why such record is not produced either before the Forum or before this Commission. Therefore, we uphold the finding of the District Consumer Forum that these letters are prepared subsequently to legalize the cancellation of the flat booking, which is made arbitrarily without prior notice to the complainant.
11. On perusal of statement showing the payment of monthly instalments, it is obvious that the complainant has committed default in payment of monthly instalments. However, considering the undisputed fact that o.ps failed to execute the agreement to sell in favour of the complainant, both the authorities supra, cannot be applicable to the present case.
12. Further, the Ld. Counsel appearing for o.ps also could not explain as to why the o.ps failed to execute the agreement to sell in spite of repeated requests of complainant. The record clearly reflects that o.ps failed to execute the agreement to sell in favour of the complainant though they were well aware that complainant was required bank loan to clear the dues of monthly instaments. Record clearly reflects that by letters dtd. 14.08.2009, 03.09.2009, 15.09.2009 & 04.11.2009 complainant requested the o.ps to execute the agreement to sell, as it was required for the bank to disburse loan. Not only this, but the record further reflects that on 24.09.2009 the complainant paid an amount of interest of Rs.25,000/- to the o.ps by issuing cheque and the same was accepted. By a letter dtd.14.08.2009 it was also informed to the o.ps by the complainant that he is willing to pay the amount of dues on getting the bank loan. When the o.ps themselves had informed the complainant for obtaining the finance from the approved finance institutions vide its letter dtd.02.06.2008, there cannot be any other inference, except that the o.ps had agreed to accept the amount of dues after getting the bank loan by the complainant. But it is obvious from the record that in stead of executing the agreement to sell the o.ps arbitrarily cancelled the flat booking, showing the issuance of reminders. Such Unfair Trade Practice cannot be allowed. Therefore, the District Consumer Forum has rightly held deficiency in service on the part of o.ps and directed them to execute the agreement to sell in favour of the complainant.
13. As far as the grievance of the complainant that the District Consumer Forum erred in directing him to pay amount of interest to the o.ps is concerned, since, undisputedly, complainant failed to pay the monthly instalments in time; he will have to bear the amount of interest, though due to financial crisis he could not pay the monthly instalments in time. Therefore, in our view, the District Consumer Forum has rightly directed the complainant to pay dues alongwith interest thereon after executing the agreement to sell deed in his favour by the o.ps, etc.
14. For the foregoing reasons, the District Consumer Forum has rightly passed the impugned judgement & order. Therefore, we do not find any infirmity or illegality in it. Hence, no interference is warranted.
15. In the result, both these appeals are being devoid of any merit, deserve to be dismissed.
Hence, the following order:-
ORDER
i. Both the appeals are dismissed.
ii. Parties to bear their own cost.
iii. Copy of this order be supplied to the parties.
Pronounced on 15.11.2011.
sj
