BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 86/2004 Filed on 09.02.2004

Dated : 15.04.2009

Complainant:

K. Sadasivan, Flat No. MF 5-225, Prasanth Nagar, West Fort, Thiruvananthapuram – 695 023.

(By adv. Pachalloor R. Jayakrishnan)

Opposite parties:

1. Kerala State Housing Board, represented by its Secretary, Housing Board Building, Thiruvananthapuram.

2. The Regional Engineer, Trivandrum Housing Unit, Kerala State Housing Board, Thiruvananthapuram.

   (By adv. Saji. S.L)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 07.02.2006, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been taken as heard on 16.03.2009, the Forum on 15.04.2009 delivered the following:

ORDER

SMT. S.K.SREELA : MEMBER

The brief facts of the case are as follows: The complainant had applied for allotment of MF5 type flat on 31.05.1978, in pursuance of the publication of application for the allotment of residential flats to persons of the middle income group at Prasanth Nagar, West Fort, Thiruvananthapuram. Accordingly, MF5 type flat No. 225 was allotted to the complainant by the opposite parties vide decision dated 28.06.1978 for Rs. 27,600/- in addition to an amount of Rs. 7000/- sought to be deposited as share of the complainant in constructing common facilities such as pump house, compound wall, gate etc. The complainant remitted Rs. 11,000/- by cheque dated 15.12.1978. The complainant on the basis of the letter of allotment, executed an agreement on 21.08.1979, and the key of the flat was handed over to the complainant. As per the terms of the agreement the price fixed for the flat is to be remitted in monthly instalments over a period of 12 years. On the completion of instalments the complainant requested the opposite party to execute the Sale Deed, but such execution was evaded and postponed. As per the terms of agreement the price fixed at the time of allotment was treated as tentative and it was further stated the final price will be fixed taking into consideration the additional land value that the opposite party is likely to pay to the land owner, consequent to any land acquisition case and also any additional construction made for common facilities and difference into price will carry interest @ 10.5%. The land originally belonged to the Maharaja of Travancore who surrendered it to the Government as excess land. The Government, after fixing a price, transferred the land to the Kerala State Housing Board, the 1^st opposite party and therefore there is no land acquisition claim on the land. No additional construction was also made in the building. As per the terms of the contract, the opposite party is bound to execute the Sale Deed once the entire price amount is paid. The complainant had paid the entire balance amount of Rs. 16,150/- on 22.11.1980 and on 16.06.1994, the complainant repaid all claim of Rs. 1,033/-. Since then the complainant has been requesting the opposite parties to execute the Sale Deed. On 13.02.1998, the opposite parties sent communication to the complainant dated 13.02.1998 stating that the final price of the building was fixed at Rs. 38,198/- as on 31.07.1979 vide Board decision dated 15.11.1997 and for common facilities such as pump house, compound wall, gate, etc. was fixed at Rs. 1,372/-. The hire purchase transaction of the flats which were allotted in August 1979, were closed in July 1991 but the opposite parties took the decision only on 15.11.1997. The final price has been communicated after a lapse of 19 years and the allottee has been asked to pay interest @ 10.5% for all these years. The complainant had been requesting to get the sale deed executed all these years. Non-execution of sale deed even after receipt of the sale consideration is a serious deficiency in service on the part of the opposite parties. Due to the negligent and deficient attitude of the opposite party, the complainant has sustained mental agony and strain which is to be compensated by the opposite party. Hence this complaint for directing the opposite parties to execute the sale deed with respect to flat No. MF5/225 along with other reliefs.

The 2^nd opposite party has filed version for and on behalf of the 1^st opposite party also contending as follows: The complaint is not maintainable. The complainant was allotted flat No. MF 5 225 in Prasanth Nagar Housing Scheme vide allotment letter dated 28.06.1978 and the tentative cost of the flat was fixed at Rs. 28,000/- and the agreement for sale of the flat was executed between the complainant and the Board on 22.08.1980. The complainant was requested to remit an amount of Rs. 7,000/- towards cost of the flat and not for the proportionate cost of construction of compound wall and for common facility and he remitted Rs. 11,000/- vide cheque dated 15.12.1978. The complainant executed the necessary agreement with the Board on 22.08.1979 and as per the agreement the balance of the tentative price fixed for the flat after adjustment of security deposit of flats amounting to Rs. 17,000/- is to be remitted in equal monthly instalments over a period of 12 years and the allottee is bound to pay the difference between the tentative cost and final cost together with interest at 10.5% per annum. The complainant never requested for the issuance of sale deed. The complainant had remitted only the tentative cost of the flat. The complainant has to remit the difference between the tentative cost and final cost with interest @ 10.5%. Complainant's claim is against the provisions of the agreement and barred by limitation. It is admitted that there was no land acquisition claim on the land. The complainant was asked to pay an amount of Rs. 31,170/- on or before 31.03.1998 towards the difference between the tentative cost and final cost with interest @ 10.5%. The opposite parties can issue the sale deed only on settlement of the said amount with interest upto the date of remittance. In terms of the agreement the decision of the opposite party in fixing the revised price of the flat shall be conclusive and final. The final price of MF 5 flat has been fixed as Rs. 38,198/- and final cost for additional works was fixed at Rs. 1,372/- vide Board decision dated 15.11.1997 and the complainant was requested to remit Rs. 31,170/- on or before 31.03.1998 vide letter dated 13.02.1998. However he did not remit the amount and he was again asked to remit an amount of Rs. 45,568/- towards balance tentative cost, difference between the tentative cost and final cost and cost for additional work on or before 31.07.2002 vide letter dated 20.07.2002 of the opposite parties. The complainant is not entitled to get the sale deed as he is yet to remit this amount with interest. The complainant had not objected to the demand for remittance of Rs. 45,568/- within reasonable time. The opposite party never acted discriminately towards the complainant. There is no wilful negligence, unfair trade practice or deficiency of service on the part of the opposite parties. The complainant was asked to remit an amount of Rs. 45,568/- vide letter dated 22.11.2003 which is the difference between final cost and tentative cost and additional works cost with interest @ 10.5% upto 31.07.2002. The complainant is bound to remit the amount with interest upto the date of payment as per clauses (9) and (10) of the agreement executed by him with the Board. Sale deed can be issued to the complainant by the opposite party only on remittance of all dues including the difference in cost with interest upto the date of payment. There is no reason for mental agony and strain to the complainant. The complaint is liable to be dismissed with costs to these opposite parties.

The complainant has filed affidavit and Exts. P1 to P5 were marked on his side. Opposite parties had no evidence.

The issues that would arise for consideration are:-

1. Whether the complaint is barred by limitation?

2. Whether the complainant is liable to pay any additional amount to the opposite party?

3. Whether the complainant is entitled to get any of the reliefs claimed?

Point (i):- Admittedly, the complainant has been allotted a MF5 type flat at Prasanth Nagar belonging to the opposite parties. According to the opposite parties, the complainant had never requested for issuance of sale deed inspite of the notice for dues as per final statement of accounts intimated on 13.02.1998. Hence according to the opposite party, since the complainant had never preferred a request for issue of sale deed, it is barred by limitation as it is against the provisions of the agreement.

According to the complainant, as per the terms of the contract, the opposite party is bound to execute the sale deed once the entire price amount is paid and the entire balance amount of Rs. 16,150/- was paid by the complainant on 22.11.1980 which is evident from Ext. P3 and on 16.06.1994, the complainant repaid all claim of Rs. 1,033/-. According to the opposite parties, the complainant has not raised the demand in time and it is hence barred by limitation. The complainant has pleaded that on the completion of instalments the complainant had requested the opposite party to execute the sale deed, but the opposite parties evaded such execution and postponed the same. Law requires a party to the agreement to discharge the obligation within a reasonable time. The opposite parties have not produced any material to corroborate their justification for the delay caused in fixing the price. When there is a violation of agreement on the part of both the parties, since this being a consumer complaint, the consumer should be given the benefit of the same. Ext. P5 demanding Rs. 45,568/- has been sent to the complainant by the opposite parties on 20.07.2002. The complainant has accordingly preferred this complaint on 09.02.2004 before this Forum. In the above circumstance, this point is found in favour of the complainant.

Points (ii) & (iii):- The learned counsel for the complainant had argued that the complainant has been asked to remit an amount of Rs. 45,568/- vide Ext. P5 for executing the sale deed and the above final price has been communicated after a lapse of 19 years for which he has been asked to pay interest @ 10.5% for all these years. It was further contended that the above decision of the opposite parties were challenged by other allottees before this Forum and the Forum had fixed Rs. 10,600/- as the reasonable amount to be remitted by MF5 type of flats and the above decision has been confirmed by the Hon'ble Supreme Court of India also. The learned counsel for the opposite parties contended that the complainant's case has no similarity with the cases decided by this Hon'ble Forum in its decision dated 30.05.2000 and further contended that the complainant is not entitled to any relief on the basis of the decisions of this Hon'ble Forum.

We have gone through the order of this Forum produced by the complainant. On considering the entire facts narrated in the order of this Forum dated 30.05.2000, we find that, the facts narrated in the complaint and the facts of the above order are similar and are squarely applicable in this case. The main issue which has been considered therein is whether such a re-fixation of price by the opposite party after a lapse of 19 years is just and warranted. The Forum has found that the amount of interest calculated appears quite unreasonable and unwarranted and the Forum had observed that “If the final price has been fixed within a reasonable period of one or two years from the date of agreement, this would not have happened. Fixing the final price after a delay of 19 years and then charging interest retrospectively is found unreasonable”. The Hon'ble State Commission, Kerala has observed in the appeals against the same orders that even assuming that the opposite party had the right to fix the price; yet the fixing of the price must be within a reasonable time. The District Forum has not interfered in the quantum of price finally fixed for the flats; interference was only with respect to the charging of interest for 19 years. The justification for the delay now offered cannot be accepted because we do not consider the reasons now attempted cannot be accepted as justifiable. Considering the above order, we are also of the view that, though the opposite party is vested with the right to fix the final price, it should have been done within a reasonable period. As per Ext. P4 the final cost of MF5 type flats in the Prasanth Nagar Housing Accommodation scheme has been fixed at Rs. 38,198/- as on 31.07.1979 vide decision dated 15.11.1997. Accordingly the complainant has been asked to pay an amount of Rs. 31,170/- with interest upto 31.03.1998 towards the difference between the tentative price and final price. This has been communicated to the complainant only on 13.02.1998 which is after a lapse of 19 years and this lapse of 19 years in fixing the final price has not been explained by the opposite parties. Moreover the opposite parties have not produced any documents to substantiate their reason for the delay. The right of the Housing Board to refix the price cannot be challenged. But if there is unreasonable delay in refixing the amount, the act of the opposite parties in charging interest for that period is to be disallowed accordingly. In the above order, the amount to be paid by MF5 has been fixed as Rs. 10,600/- and in the above circumstance, the claim of Rs. 45,568/- as per Ext. P5 is slashed and we fix Rs. 10,600/- with 10.5% as just and reasonable.

In the result, the complainant is directed to deposit an amount of Rs. 10,600/- with 10.5% from 30.05.2000 within 30 days of receipt of the order and the opposite parties on receipt of the amount shall execute a sale deed in favour of the complainant within 30 days of deposit. No order as to costs and compensation.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15^th April 2009.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

O.P. No. 86/2004

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of letter dated 09.08.1978.

P2 - Copy of agreement for sale of the flat dated 21.08.1979.

P3 - Copy of receipt dated 22.11.1980.

P4 - Original letter No. E7/MF5 225/PRN.

P5 - Copy of letter No. E7/ NFS/226/PRS dated 20.07.2002.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT