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. 403/2002 Filed on 25.09.2002

Dated : 30.10.2008

Complainant:

Aleyamma V. Mathunny, residing at Flat MF 5-327, Prasanth Nagar, West Fort, Thiruvananthapuram – 695 023.

(By adv. P.A. Ahamed)

Opposite parties:

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

(By adv. Saji. S.L)

 

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

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 30.07.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been heard on 07.10.2008, the Forum on 30.10.2008 delivered the following:

ORDER

SMT. S.K.SREELA : MEMBER

The brief facts of the case are as follows: The flat No. MF 5-327 was originally allotted to Smt. Pushpa T. Gulabani. The allotment of the above flat was transferred to the complainant jointly by Smt. Pushpa T. Gulabani and the Housing Board on 09/08/1999. The flat was allotted to Pushpa T. Gulabani for Rs. 27,600/-. This was intimated to her in addition to the above said price an amount of Rs. 972/- was further sought to be deposited as share in constructing common facilities such as pump house, compound wall, gate etc. Pushpa T. Gulabani on the basis of the letter of allotment, executed an agreement on 22.09.1979, and the key of the flat was handed over to her. 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 Pushpa T. Gulabani 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 amount by instalments. Since then Pushpa T. Gulabani and the complainant have been requesting the opposite parties to execute the Sale Deed. In February 1998, the opposite parties had sent communication to all the allottees to pay Rs. 54243/- by allottees of M5 type flat and Rs. 38198/- by allottees of MF4 type flat towards final price fixed for the building. 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 allottees have been asked to pay interest @ 10.5% for all these years.

Challenging the above decisions of the opposite parties 46 of the allottees had filed complaint before this Consumer Forum for which this Forum had observed that calculation of interest for 18 years as unreasonable and had fixed an amount of Rs. 10,600/- as admissible and reasonable amount to be remitted by MF5 type of flat and ordered the opposite party to execute the Sale Deed within 30 days of deposit and if the amount is not deposited within 30 days it will carry interest at 10.5%. The above decision was upheld by the Hon'ble Supreme Court of India and accordingly the opposite parties had executed the Sale Deed to all the 46 allottees who had filed the complaint. Opposite parties did not execute the Sale Deed to the allottees including the complainant though they were ready to pay the amount. The complainant approached the opposite party several times for paying Rs. 10,600/- with interest 10.5% from 30.05.2000. But the opposite party wilfully declined to accept the amount and denied to execute the Sale Deed. Non-acceptance of amount and non-execution of Sale Deed (as per the order of this Hon'ble Forum dated 30.05.2000) is wilful negligence and unfair trade practice and deficiency of service on the part of opposite parties. Hence this complaint for directing the opposite party to execute the Sale Deed after accepting Rs. 10,600/- with 10.5% interest from 30.05.2000 along with compensation and costs.

The 1^st opposite party has filed version for and on behalf of the 2^nd opposite party also contending as

follows: The complaint is not maintainable. Flat No. 5-327 was provisionally allotted to Smt. Pushpa T. Gulabani vide allotment letter dated 11.07.1979. The final allotment was given on 30.07.1979 and she executed agreement with the opposite parties on 22.09.1979. As per the agreement the tentative price fixed for the flat is Rs. 28000/-. She was requested to remit an amount of Rs. 972/- towards the proportionate share of the cost of construction of compound wall, fixing gates, water tanks, pump house etc. vide letter dated 28.08.1984. But she had not remitted the above amount. These works were carried out as per the terms of the agreement. As per the agreement executed between Smt. Pushpa T. Gulabani and the opposite party the balance of tentative cost of the flat after adjustment of security deposit of the flat amounting to Rs. 21000/- is to be remitted in equal monthly instalments for a period of 12 months and the allottee is bound to pay the difference between the tentative cost and final cost together with interest at 10.5%. The original allottee Smt. Pushpa T. Gulabani had not requested the opposite party for issue of sale deed as alleged. Smt. Pushpa T. Gulabani had requested for transferring the allotment of Flat No. MF5-327 to the complainant vide her request dated 19.07.1999 and the balance of the tentative cost remitted only on 30.07.1999 and accordingly the allotment of the said flat was transferred to the complainant vide order dated 05.08.1999 of the opposite party and a transfer agreement was also executed on 09.08.1999. The notice demanding the dues as per the final cost in terms of the agreement dated 22.09.1979 as on 31.03.1998 was issued to the original allottee on 28.02.1998 and she had never disputed the same. The complainant had taken over the liabilities to make the balance payment and discharge the obligations by specific incorporation in the transfer agreement dated 09.08.1999. As such the complainant is liable to pay the amount demanded on 28.02.1998 with interest till the date of payment. The complainant had not disputed this amount within the period of limitation and any request for issue of sale deed thereafter is of no merit. As such the claim of the complainant is not maintainable at this stage and is barred by limitation. Hence there is no evasion or postponement in the execution of sale deed as alleged. It is admitted that there was no land acquisition claim on the land. Though no additional construction was made to the building, additional works like construction on compound wall, gates, collecting tanks, pump house etc. were carried out for additional amenities. The complainant has remitted only the tentative cost of the flat. She is bound to pay the difference between the tentative cost and final cost and share for the additional amenities due as on the date of transfer of allotment as agreed by the transfer agreement dated 09.08.1999. The original allottee was asked to remit an amount of Rs. 32,965/- on or before 31.03.1998 towards the same vide letter dated 28.02.1998 of the opposite parties. Neither the original allottee nor the complainant had disputed this within the time limit. The opposite party is prepared to execute the sale deed soon on payment of the entire amount due to the opposite party as per the terms of the agreement and law. No request has been received for the issue of the sale deed either from the original allottee or the complainant as alleged. It is agreed that the opposite party shall be entitled to refix the final price of the flat as described in the schedule thereto. Though the opposite party had initmated the original allottee to remit the difference in cost in 1998 itself, the original allottee did not turn up to remit the amount. 46 allottees of Prasanth Nagar Housing Scheme filed O.Ps, in the Hon'ble Consumer Disputes Redressal Forum for the issue of sale deeds of their respective flats and as per order of the Hon'ble Consumer Disputes Redressal Forum dated 30.05.2000 in O.P. No. 331/1998 etc. sale deeds were issued to all those allottees. Neither the complainant nor the original allottee had ever disputed the final cost. As such the complainant's case has no similarity with the cases decided by the Hon'ble Forum on 30.05.2000. The complainant or the original allottee was not a party in those cases and therefore the above decision is not applicable to the complainant either in law or on facts. The Hon'ble Forum vide order dated 30.05.2000 in O.P. No. 331/1998 and similar O.Ps, filed by allottees of MF-4 type flats and MF-5 type flats ordered to execute the sale deed to 46 allottees of Prasanth Nagar Housing Scheme. The complainant was not a party in those cases and the complainant's present complaint has no similarity with those cases. The complainant had not objected to the demand for remittance of Rs. 32,965/-. 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. 40,942/- on or before 31.06.2002 towards closure of account and for issuance of sale deed. The complainant's case has no similarity with the decision dated 30.05.2000 and complainant's claim is barred by limitation. There is no deficiency or negligence on the part of the opposite parties.

The complainant has filed affidavit and Exts. P1 to P4 were marked on her 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 Flat No. MF5 327 was originally allotted to Smt. Pushpa T. Gulabani and the allotment was transferred to the complainant jointly by Pushpa T. Gulabani and the Housing Board and as such 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 28.02.1998. Hence according to the opposite party, since the complainant had preferred a request for issue of sale deed only on 19.01.2002, 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 amount was paid by the complainant by instalments and on completion of instalments, Smt. Pushpa T. Gulabani and the complainant requested the opposite parties to execute the sale deed. 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. There is no dispute with regard to the fact that the complainant had requested the opposite parties for issuance of the sale deed on 19.01.2002 for which Ext. P4 reply demanding Rs. 40,942/- dated 29.06.2002 has been sent to the complainant by the opposite parties. The complainant has accordingly preferred this complaint on 25.09.2002 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 complainant has been asked to pay an amount of Rs. 40,942/- on or before 30.06.2002 for executing the sale deed. The opposite party had sent communication to all the allottees to pay of Rs. 54243/- and Rs. 38,198/- by the allottees of MF5 and M4 types of flats respectively, and the above final price has been communicated after a lapse of 19 years for which they have 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 46 of the 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 in a similar case in O.P. No. 917/1992. Though the opposite parties have contended that the complainant is not entitled to any relief and referred order of the Forum in O.P. No. 917/1992 in support of their contention, the said order has not been produced by the opposite parties.

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. “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 .. 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. In the above order, the amount to be paid by MF5 has been fixed as Rs. 10,600/- and we fix the same amount 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 30^th October 2008.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

O.P. No. 403/2002

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of order No. E7/MF5/327/PRSN dated 05.08.1999

P2 - Photocopy of transfer agreement dated 09.08.1999.

P3 - Photocopy of letter dated 19.01.2002 issued by the

complainant.

P4 - Photocopy of letter No. E7/MF5/327/PRSN dated 29.06.2002

issued by the opposite party.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT