Date of filing : 21-03-2002 Date of order : 18 -09-2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD C.C. 62/02 Dated this, the 18th day of September 2010 PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SHYMALADEVI : MEMBER 1. M.Ramanna Rai (Dead) 2. Rajeevi Rai, W/o. Late Ramanna Rai 3. Pushpalatha S.Rai, } Complainants D/o.Late Ramanna Rai Both are R/at Gaddigudde, Mulleria, Kumbadaje Village, Kasaragod. (Adv. P.V. K. Nair, Kasaragod) 1. The Secretary, } Opposite parties Kerala State Housing Board, Thiruvananthapuram. 2. The Administrative Officer, Kerala State Housing Board, Chakkorathkulam, Kozhikode. 3. The Executive Engineer, Kerala State Housing Board, Railway Station Road, Kasaragod. (Adv. Beena.K.M. Kasaragod) O R D E R SMT.P.P.SHYMALA DEVI, MEMBER This case is remanded by the Hon’ble State Consumer Disputes Redressal Commission, Kerala as per order in Appeal No.496/02 dt. 18-09-2009 in that it is held that the Forum is empowered to adjudicate the dispute. Thereby State Commission set aside the order of the Forum and also directed to decide the matter after permitting the parties to adduce evidence. Accordingly matter is restored and notice was issued to both parties. The complainant’s Counsel Sri.P.K. Kunhikannan Nair appeared. Since the complainant is no more steps were taken to implead the legal heirs of the complainant. As per order in IA 7/10 his wife and daughter were impleaded as supplemental complainants. For opposite parties Adv. Beena K.G. appeared and filed vakalath. 2. Shortly stated the facts leading to file this complaint in Opposite party No.1 constructed flats at Muttathody Village, Kasaragod Taluk. That the construction was completed during the year 1991-1992. As per the application of the complainant Flat No.EF8(a) –301 was allotted to him. As per demand in the final allotment letter dt.27-11-1992, the complainant has paid `91,680/- being the initial deposit. On 4-1-1993 the agreement of sale was executed between KSHB represented by administrative officer KSHB, Kozhikode, i.e. opposite party No2, and the complainant. The complainant has taken possession of the flat on 5-1-1993. As per the agreement the tentative price of the flat is fixed as ``2,41,000/-. The complainant has paid `1,45,530/- in 63 instalments at the rate of ``2,310/-.The complainant has also paid `1,23,045/- on 24-4-1998. Thus the total amount paid by the complainant was ` 3,62,565/-. 3. The complainant was made to believe that the total cost of the construction of the flats is inclusive of the enhanced compensation amount on the land acquisition proceedings as well as the cost of prosecuting the said proceedings and the development works as agreed to be provided for. Since there is no enhanced compensation, cost of prosecution or any cost incurred for development work, the complainant is not liable to pay any additional amount on that account. On 24-4-98 the KSHB has collected a sum of `1,23,045/- from the complainant. The complainant estimate 60,000/- being the excess amount collected from him. So the opposite parties are liable to refund `60,000/- and also the complainant is entitled to get the sale deed executed by KSHB in respect of the Flat No.EF8 (a) 301 in favour of the complainant. The complainant sent a lawyer notice dt.7-12-2001 to opposite parties 2 & 3 demanding them to execute the sale deed. The Regional Engineer, KSHB has sent a reply notice dt. 16-02-2002 stating sent the final cost was fixed on 30-04-1992 at `2,70,348/- and the complainant is liable to pay 1,48,161/- as on 30-1-2002 towards the final cost of the building. According to the complainant there is inordinate delay in claiming interest on final cost. The amount claimed by KSHB on 16-2-2002 and calculation statement are not correct. Hence the complaint is claiming to get the sale deed executed and registered by opposite party No.2 in respect of the flat No.EF8(a) 301 in favour of the complaint, refund `60,000/- being the excess amount paid by him with compensation and cost. 4. The opposite parties filed version. According to them complaint is not maintainable. Since there is no consumer relationship between the parties and also the disputes relates to ‘princing’ which is beyond the jurisdiction of the consumer Forum. Opposite parties agreed the total amount paid by the complainant and the agreement executed by them on 4-1-1993. According to opposite parties the price mentioned in agreement of sale is only tentative price and as per clause 3 and 9 of the agreement they have the right to enhance the amount at any time and they shall be entitled to refix the final price of the apartment taking in the account of the increased cost of development works and amenities undertaken with respect to the scheme. When the scheme account of Muttathody Housing scheme was finalized it was seen that the complaint is liable to pay an amount of `1,48,161/-as on 30-1-2002 towards the final cost of the building and this was intimated to the complainant and he was requested to pay the amount but instead of turning up to remit the amount he was came forward with false allegation. According to opposite parties the period of repayment of H.P. instalments was fixed for 13 ½ years from the date of agreement. There are many precedents to be followed by the Board for finalizing the account in a Housing accommodation scheme so there is absolutely no deficiency in service unfair trade practice or negligence on the part of opposite parties as alleged in the complaint. Hence the complaint is liable to be dismissed with cost. 5. On the side of the complainant Exts A1 to A6 marked. No documents marked on the side of opposite parties. Heard both sides. 6. Ext.A1 is the agreement of sale executed between the complainant and opposite party No.2 on 4-1-1993. Ext.A2 is the lawyer notice sent by the complainant to opposite party No.2 and 3 dt.7-12-2001. Ext.A3 is the reply notice sent by Regional Engineer, KSHB dt. 16-2-2002. Ext.A4 is the calculation of final cost prepared by opposite party No.3. Ext.A5 is the receipt dt. 24-4-1998 and Ext.A6 is the letter dated 28-4-1998 sent by opposite party to the complainant. 7. The case of the complainant is that he had paid the entire amount as per Ext.A1 agreement on 24-4-1998 and approached opposite parties for execution of sale deed. The complainant sent Exct.A2 registered lawyer notice. Responding the Ext.A2 lawyer notice Ext.A3 notice has been sent by Executive Engineer, KSHB stating that final cost was fixed on 30-04-1992 at 270348/- and hence the complainant is liable to pay 1,48,161 as on 30-1-2003 towards the final cost of the building in order to execute the sale deed. Eventhough the final price was fixed on 30-04-1992 which was not mentioned in the Ext.A1 agreement executed on 4-1-1993. The fixation of final price was intimated to the complainant only through Ext.A3 reply notice on 16-2-2002. 8. The opposite parties in their version and in Ext.A3 reply notice stated that they are relied on Ext.A1 agreement. As per Ext.A1 the price fixed is only tentative price and as per clause 3 and 9 of the agreement they have the right to refix the same at any time. 9. Clause 3 of Ext.A1 reads as under:- The purchase price fixed in the deed for the flat there on is tentative and provisional for the reasons described in the preamble to this deed and the party of the second part hereby specifically agrees that a price so fixed is subject to the revision by the Board. 10. Clause 9 of Ext.A1 read as:- It is agreed that the KSHB shall be entitled to refix the final price of the apartment charges that is taking into account interalia the enhanced compensation awarded by counts and tribunals as per actual costs of construction. The cost incurred by the Board or and its predecessor or in interest for prosecuting such proceedings in courts and Tribunals and also the increased cost of development works and amenities undertaken with respect to the scheme after a final establishment of account in connection therewith. 11. What is stated in the preamble of Ext.A1 deed is that WHEREAS the land value, service charges for providing amenities fixed here under is purely tentative and provisional and is bound to be revised a later stage taking into account the enhanced compensation awarded by courts and tribunals, the cost incurred by the Board for prosecuting such proceedings in courts and Tribunals and also the increased cost of development works and amenities undertaken with respect to the scheme, after a final settlement of account in connection therewith and the party of the second part has agreed to pay the revised rates to be fixed by the board and agreed to purchase the property in this manner hereinafter appearing’. 12. The opposite parties in their written version and in Ext.A3 notice agreed that there was no land acquisition references relating to the Muttathody housing accommodation scheme, the statement relating with same in the agreement are not applicable here. In almost all schemes of the board there were LAR proceedings and as such a standard form of the agreement was prescribed by the Board for the entire state and here due to oversight or otherwise it was omitted to strike off in this agreement. In this case it is clear that there was no land acquisition proceedings. The construction work was completed in the year 1991-1992. There is no dispute regarding the possession of the flat on 5-1-1993. There is no evidence to show that opposite parties had spent any amount for development works and common amenities till 1993. On the other hand the fixing of final cost as on 30-4-1992 itself shows that the work was completed in the year 1991-92. Hence the argument made by the counsel of the opposite parties that they are relying the Ext.A1 agreement and as per clause 3 and 9 of the said agreement the opposite parties have the right to revise the amount as final cost is not sustained. 13. Here there is no dispute regarding the allotment of flat to the complainant, the payment of initial deposit of `91,680/- the agreement for sale executed on 4-1-1993, the complainant taken possession of the flat on 5-1-1999 and total payment made by complainant i.e. `3,62,565/-. The question that arise for consideration is that whether there was delay in intimating the final price fixed to the complainant and is there any justification for calculating the interest for the same. Obviously the construction of the flat was completed in the year 1991-92. Nothing to shown by the opposite parties that the other work has been done by them thereafter. Ofcourse the opposite parties have the right to fixing the final cost at any time as specified in Ext.A1 agreement that the price fixed is tentative. Had the final account been fixed within a reasonable time the complainant could have the option to pay soon after it. The complainant had 13 ½ years time to remit the instalment cannot be a jurisdiction for the delay. The order of Kerala State Commission reported in 2001 CPJ 347 has produced before us with identical facts. We are also go into the same question in the case of K.V. Padmanabhan V Secretary Calicut Development Authority reported in 2007 CTJ 811 (CP) (NCDRC) 14. Ext.A4 is the calculation of final cost prepared by opposite party No.3. The counsel of the opposite parties argued that as per clause 10 of the Ext.A1 agreement they are entitled to get difference of tentative price and final price with interest at the rate of 16.5%. But in Ext.A5 the calculation is not the difference but the entire final cost. There is no justification for the calculation of Ext.A4 statement. Further with regard to the maintainability the contention of opposite parties are not sustainable as it was already decided by the Hon’ble State Commission. 15. Considering all these aspects, there is no justification for non execution of sale deed to the complainant by opposite parties even after complying all the conditions specified in Ext.A1 agreement. It is came out in the evidence that the opposite parties committed deficiency in their service. Therefore we are of the view that the opposite parties are liable to pay the cost of the proceeding to the complainant. In the result the complaint allowed. The opposite parties are directed to execute the sale deed within a period of 6 weeks without demanding any additional amount. Opposite parties are also directed to pay `10,000/- as compensation and cost of `3,000/- within 6 weeks from the date of receipt of copy of this order. The complainant shall spend the registration expenses. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Exts. A1. Photocopy of Agreement for sale of the property and the apartment. A2. 7-12-2001. Copy of lawyer notice. A3. 16-2-02 reply notice. A4. photocopy of calculation of final cost EF8(a) 301 A5. Photocopy of Current Accopunt pay-in-slip. Dt.24-4-98. A6.28-4-98 photocopy of letter issued by KS.H.Board Kasaragod to Sri.Ramanna Rai. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Pj/ Forwarded by Order SENIOR SUPERINTENDENT
| | HONORABLE P.P.Shymaladevi, Member | HONORABLE K.T.Sidhiq, PRESIDENT | HONORABLE P.Ramadevi, Member | | 
