SRI BIJAYA KUMAR DAS,PRESIDENT:-
Deficiency in service in respect of not providing basic facilities and charging illegal arrear rental dues towards the allotment of shop rooms are the allegations arrayed against the Opp.Parties.
2. Complaint, in brief reveals that complainant to avail a shop room constructed by Ops paid Rs.25,000/- vide M.R.No.321 dtd. 19.07.97 as security deposit and also paid Rs.7,000/- vide M.R.No.392 dtd.12.01.98 as double shutter charge with a monthly rent of rs.420/- and allotted shop room No.D-8 in Block-D measuring 120 sqft. Complainant also alleges having no approach road, no electrification, no drinking water etc.. Complainant also reveals that though it was agreed between the parties, that separate electric connection will be provided, but the Ops forced the complainant to avail the power supply from a common meter being co-sharer. The complainant is entitle to pay the monthly shop rents from the date of possession or not from the date of execution of the agreement. As the electrical wirings were poor in quality, on oral order of the J.E.KRIT complainant spent Rs.6,000/- towards recurring of the shop room. The OP No.2 in his letter No.391 dtd. 10.10.2014 demanded to pay Rs.37,087/- as on August,2014 which according to complainant is excess, arbitrary and based on wrong calculations. The letter of OP No.1 bearing No.458 dtd. 14.11.14 where the Ops demanded to pay Rs.1,85,435/- within 15 days which according to complainant is unfair trade practice. Being aggrieved complainant and other tenants putforth their grievance before OP No.2,Collector,Kendrapara vide grievance No.5580 assured the complainants to pay the arrear dues on installment basis, accordingly issued a letter on dtd.06.12.14 vide dispatch No.22291, but the said letter was missed. On dtd.22.01.15 OP No.2 issued a letter of final notice to complainant demanding Rs.40,492/- towards shop rent with interest upto December,2014, if 50 per cent of the said amount is not paid on or before dtd. 15.02.15, OP No.1 will cancel the allotment and vacate the shop room by evicting the complainant. The cause of action of the instant case on dtd.22.01.15 and on dtd.11.08.15 when Ops demanded an arbitrary shop rent arrears and threatened the complainant to evict from the shop room. Complainant by filing the complaint prays this Forum that a direction may be issued not to evict the complainant from the case shop room, rectification and exemption of the wrong calculation of arrear dues, actual energy bills of CESCO and restoration of power supply. It is further prayed that return/adjustment of Rs.6,000/-/- spent by the complainant in rewiring of the shop room and Rs.5,000/- towards roof repairing alongwith Rs.35,750/- for financial loss and mental agony.
3. Being noticed OPs appeared into the dispute through the Secretary,Kendrapara Regional Improvement Trust,Kendrapara and filed parawise written reply countering the allegations of the complainant both in the C.C. and I.A.Case. In written counter Ops challenges the maintainability of the complaint that the complainant can not be treated, as a ‘consumer’ as C.P.Act,1986. It is stated that complainant was allotted a shop room No.D-5 of size 10’-0” x 12’-0” on hire basis at Niranjan Market Complex,Kajala,Kendrapara with a monthly rent of Rs.420/-. Complainant deposited Rs.25,000/- as security deposit on dtd.09.06.97 and Rs.7,000/- as double shutter charge. The possession of the said shop room was handed over to complainant on dtd.15.05.2000 after a lapse of seven months from the date of execution of the order. After a lot of official correspondences the complainant executed the agreement on dtd.14.10.99 and the date of payment of monthly rent is on or before 10th of the month on advance. It is also averred in the written replies that initially the power supply to the shop room was given from a common meter, later vide letter No.680 dtd.22.11.2000 complainant was intimated to avail power supply individually from CESCO,KED-I(Annexure-X). The complainant is a regular defaulter in respect of payment of monthly rent. Countering the allegations of approach road, water supplies boundary wall and security provisions, Ops in the written replies state that as the market complex situated in the side of main road there is no question of constructing approach road and a P.H.E.D. water tap is already existed in the premises. So far the construction of boundary wall and employment of securities are concerned, the agreement is completely silent regarding this provisions. It is further stated that as per clause 1(a) of the agreement if the complainant fails to deposit the monthly rent in advance on or before 10th of the month 18 per cent interest will be imposed for the defaulted period. As per the complaint it is averred in written replies that Collector,Kendrapara(OP No.2) has never passed any order to waive the interest to pay arrear outstanding dues on installments basis. Complainant being a defaulter on payment of monthly rent charges, OP No.1 in their Letter dated 442/KRIT dtd.14.11.14 directed to pay Rs.50 per cent of the arrear dues, i.e. Rs.32,708/- out of total amount of Rs.65,416/- to clear the outstanding dues in phase manner and the total outstanding till March,2016 remains to the tune of Rs.1,12,893.00. It is further stated that no excess amount of rent and interest has been charged on the complainant rather what arrear outstanding are pending on the complainant. It is in accordance with the agreement executed between Ops and complainant. As the agreement expired since long and no further renewal is made as per the clause 1(b) of the agreement, the complainant will be treated as unauthorized occupant of the shop room. In the circumstances, the allegations of the complainant are false and baseless and is liable to be dismissed with cost.
4. Heard the Ld. Counsel Mr. S.K.Kar appearing for the complainant and Secretary,KRIT who appeared personally and defend their case also considered the documents/annexures/citations filed into the dispute. The admitted facts of the case are that the complainant was allotted a shop room after executing an agreement bearing shop No.D-5 in the Market complex constructed by Ops. It is further admitted that as per the agreement complainant deposited security amount against occupying of shop room and certain arrear outstanding in connection to shop room rent is pending on the complainant till the date.
Before discussing the factual and legal aspect of the dispute, we must discuss the maintainability of the case as raised by Ops. Ops in their written replies averred that the complainant can not be treated as a consumer as per Sec.2(i)(d)(i) of the C.P.Act, by denyning the said clause of the Section. But subsequent sub-clause Sec,2(i)(d)(ii) deals with ‘hiring of service’ in the present dispute admittedly complainant after depositing a certain amount as security deposit and on execution of the agreement and promised to pay the monthly rent as per the agreement. Thus, complainant by paying certain ‘consideration’ avails’hires the service of the Ops. Hence, he can be treated as a consumer and the complaint is well within the purview of C.P.Act,1986.
In the complaint deficiency in service is attributed against the Ops on the grounds of delayed delivery of possession of shop room, non-construction of approach road and boundary wall, non-supply of individual power supply, non-payment of repairing charges of shop room alongwith electrical wiring on oral order of J.E.,KRIT,Kendrapara. It is further alleged that without complying grievances Ops are demanding interest @ 18 per cent interest per annum on arrear dues of shop rooms ignoring the order of the Collector,Kendrapara vide the dispatch No.22291 dtd.06.12.14 basing on the grievance petition No.5580 dtd. 01.02.14. In support of his claim complainant filed number of attested Xerox copies of money receipts, copy of the agreement dtd. 22.11.99 and Xerox copies of letters correspondence between the parties on different dates.
Ops countering the allegation state that they have acted as per the agreement between the parties on dtd.14.10.99. On allegation of power supply Ops intimated the complainant to provide individual power supply vide letter No.680 dtd. 22.11.2000. Non of the parties have filed the copy of disputed security deposits. It is also contended that the other demands of the complainant are not considered as the claims are not within the frame of the agreement dtd. 14.10.99 and charging @ 18 per cent interest, per annum is in accordance with the agreement, when the complainant failed to pay the monthly dues regularly and becomes a defaulter.
Considering the allegation and counter allegations it is clear that most of the grievances of the complainant and its non-compliances are related to the long years back like non-supply of individual of power supply, non-construction of approach road, non-construction of boundary wall, if the same is treated as deficiency in service, it is raised in a much a belated stage. In case of individual power supply to the shop room when the Ops in their letter dtd. 680/KRIT dtd. 22.11.2000(Anenxure-V) offered the opportunity to complaint to avail the power supply directly from CESCO as per the official norms, but complainant lost the opportunity and raised the grievance after a lapse of more than 15 years and same can be availed by the complainant after completion of official formalities. The present dispute based on the agreement executed between the parties, which is a contract and either of the party can’t go beyond the terms and conditions of the agreement unless it is interfered by a court of law or competent authority. On perusal of copy of the agreement it appears that ‘ Where as the license agrees to take said premises(described in schedule-B) for the term of annual licence to computed from the date of execution of agreement by the licence….”. It is clear from the said agreement that the valid period of agreement /contract is limited to one year from the date of execution of the agreement. W/S of Ops silent regarding tenure of the agreement. It is equally clear that, the Ops allowed the complainant to become a defaulter in respect of a huge pending arrear house rents by not renewed or terminating the agreement before lapse of the time limit mentioned in the agreement. As per the agreement the Ops are empowered under the contract/ agreement to impose @ 18% interest for default period within the permissible time limit given in the agreement.Ops can’t unilaterally impose the interest @ 18% P.A. when they a part of the violation of the agreement. Ops in their w/v emphasizes on the clause 1(a) (b) of the agreement by submitting that @ 18 % interest will be imposed on the complainant for default of paying the house rent. In this regard we opine that when the agreement itself is not in force the terms and condition/ the clauses are automatically becomes anfractuous. In the present dispute considering the legal position of the agreement, we do not fix the quantum of interest to be imposed on the complainant-licence rather we left it to be Ops to decide the rate of interest by taking a rational approach and legality of the agreement. However, complainant can not be allowed to take advantage of the legal position discussed above, when admittedly the complainant-licence is a defaulter in respect of payment of arrear outstanding of shop room rents. But his grievance can be redressed by the authorities considering as per our observation. After settlement of the dispute the parties are at liberty to execute a fresh agreement in respect of letting out of the shop room.
So far the imposition of @ 18 per cent rate of interest on arrear dues and to pay 50 per cent of the total arrear outstanding dues, failing which complainant will be evicted from the shop room as per the agreement. Complainant hammered in the point that on presenting the grievance before OP No.2, Collector,Kendrapara vide grievance No.5580 dtd. 01.12.2014.On exemption of interest, the Collector,Kendrapara vide despatch No.22291 dtd. 06.12.2014 passed an order to collect the rent due in a single installment. But the said letter is not produced rather the letter is not traced as averred by the complainant. On the other hand, Ops deny the existence of such letter. Further Ops submit that on violation of clause 1(a) of the agreement, when the complainant defaulted in paying the monthly dues as per the agreement Ops were constrained to charge @ 18 per cent interest per annum on defaulted amount. In our opinion on non-existence of the letter of the Collector,Kendrapara(OP No.2) and as per the agreement this Court can not direct to exempt the interest @ 18 per cent imposed on the complainant. However, considering the specific presentation of grievance No. letter of Collector bearing No.22291 dtd. 06.12.14 which was again readdressed to Collector,Kendrapara (OP No.2) on dtd. 15.12.2014 vide grievance No.92 dtd. 05.01.2015 remains unanswered by the Ops.The attested copy of the grievance No.92 dtd. 05.01.2015 is filed by the complainant in C.C.Case No.27/2015,where the signature of other complainants/tenants are present. It is right of the complainant-consumer to know the fate of petition addressed to OP No.2. But legally and technically the complainants are in back foot as they have violated the agreement being a defaulter in respect of non-payment of monthly shop rents in time. However, on humanitarian aspect the complainants are small shopkeepers of the said shops. If the notice of the Ops is to pay 50 per cent of arrear outstanding dues is strictly adhered by implementing the agreement and charging 18 per cent interest for the default period. No doubt the complainant-shopkeeper will go through a financial hardship. So, complainant deserves sympathy from the Ops to consider the relaxation of imposition of @ 18 per cent per annum. The Opp.Parties on support of their stand filed a decision of the Hon’ble High Court,Odisha in W.P.(C) No.8342/2010 and decision of the District C.D.R.Forum,Phulbani. Both the decision are applicable into the present proceeding.
Having observations reflected above, it is directed that complainant will make an representation to OP No.2,Collector,Kendrapara within one month of receipt of this order to consider their grievance including charging of @ 18 per cent interest on monthly arrears on pending house rents of complainants subject to payment of 25 per cent of the total arrear outstanding which will be adjusted on the final disposal of representation of the complainant by OP No.2. If the grievances are filed, OP No.2 will dispose of the grievance petition within two months of receipt of the grievance. If the complainant failed to implement the order within a stipulated period, the Opp.Parties are at liberty to take action as per the law. During this period Ops are hereby restrained to take any coercive action against complainant. Accordingly, the I.A.Case filed is hereby disposed of.
No order as to cost. Complaint is disposed of.
Pronounced in the open Court, this the 30th day of April,2016.
