KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

APPEAL No.948/2012

JUDGMENT DTD :26.12.2013

(Appeal filed against the order in CC.No.76/2009 on the file of CDRF, Thiruvananthapuram dated: 16.04.2012)

PRESENT

SRI.K.CHANDRADAS NADAR     : JUDICIALMEMBER

SMT.A.RADHA                               : MEMBER

SMT.SANTHAMMA THOMAS      : MEMBER

1. Kerala State Housing Board,

Thiruvananthapuram – 695 001

Represented by its

Secretary

2. The Regional Manager,                                 APPELLANTS

Trivandrum Housing Unit,

Kerala State Housing Board,

Thiruvananthapuram

Pin – 695 001

(By Adv.Meena.C.R)

Vs.

1. S.R.Sudha,

W/o.Jeevan Sadasivan,

Flat No.106, FF 3 (a) – 106,

Swathy Nagar, West Fort,

Thiruvananthapuram

Pin – 695023                                                       RESPONDENTS

2. Represented by her father and

Power of Attorney,

Flat No.106, FF 3 (a) -106,

Swathy Nagar, West Fort,

Thiruvananthapuram Pin - 695023

JUDGMENT

SRI.K.CHANDRADAS NADAR     : JUDICIAL MEMBER

          Appellants were the opposite parties in CC.No.76/2009 in the CDRF, Thiruvananthapuram. The complainant / respondent was the allottee of flat bearing No.FF 3(a)-106 by the Kerala State Housing Board, the first appellant. The complainant approached the Forum alleging deficiency in service on the part of the appellants. According to the complainant the said flat was allotted to him after fixing tentative cost of Rs.2,16,790/- payable in monthly instalments. The opposite parties also fixed schedule for payment of instalments. It was agreed that only after paying the entire instalments sale deed would be executed in his favour. The complainant remitted each and every instalment diligently and on time. As per the terms and conditions in the agreement, the opposite parties were entitled to revise tentative cost only if additional improvements were made and there was enhancement of cost of acquisition as a result of land acquisition references. An agreement was executed between the parties on 28.01.1987 as per which the flat referred to was allotted to the complainant. He paid the last instalment by 12.08.94. As per the terms of the agreement opposite parties were bound to provide flooring and electrification of the flat. But they failed to do so. Hence the complainant herself did the job. Though the opposite parties agreed to refund the amount spent towards flooring and electrification, they failed to do so. The complainant repeatedly requested opposite parties to execute sale deed but they were postponing the execution of the sale deed on flimsy grounds. While so the opposite parties served demand notice dated 5.2.09 calling upon the complainant to pay an additional amount of Rs.91.260/- which was stated to be the difference between the tentative cost and final value fixed by the opposite parties. The failure of opposite parties to execute sale deed despite payment in full amounts to deficiency in service and unfair trade practice. Hence the complaint to set aside the demand notice dated 05.02.09 and to direct the opposite parties to execute sale deed in favour of the complainant. Compensation and cost were also claimed.

          2.      The opposite parties contended before the Forum that Flat No. FF 3(a) - 106 was allotted to the complainant for a tentative cost of Rs.2,16,790/- and accepting the allotment the complainant remitted initially Rs.75,875/-. An agreement was executed between the parties on 28.01.87.  Prior to the execution of the said agreement tentative cost was refixed as Rs.1,83,800.85/- and the initial deposit was adjusted accordingly. Hire Purchase facility was granted and the complainant was allowed to remit the balance amount in instalments. The EMI was fixed at Rs.2482/- payable from February 87 for a period of 6 years. The complainant was irregular in paying the EMI. Hence as per the agreement the complainant is liable to pay penal interest. The complainant was allowed to execute electrical and flooring works. The cost for the same is not included in the final cost. The complainant had remitted Rs.1,64,282/- which was adjusted towards principal and interest. The complainant is bound to remit further amount of Rs.2,460.74/- towards principal amount as on 12.08.94. The complainant is also liable to pay penal interest on defaulted payments. The opposite parties after finalizing the account based on the expenditure incurred intimated the final cost and the complainant is bound to remit the difference in final cost and tentative cost with interest. The final cost was fixed based on enhancement of land value allowed by the land acquisition court and actual construction cost of the building. There were altogether five LAR Cases with respect to the acquisition of land for the scheme. It was accordingly opposite parties issued additional demand notice for Rs.91.260/- .There was no deficiency in service on their part.

          3.      Before the Forum one witness was examined on behalf of the complainant as PW1. Exts.P1 to P5 were marked on the side of complainant. One witness was examined on behalf of the appellants but no document was marked on their side. As per the impugned order the District Forum found deficiency in service on the part of the appellants and accordingly allowed the complainant. Ext.P5 demand notice dated 05.2.09 issued by the second opposite party was cancelled. The appellants were directed to execute sale deed in favour of the complainant within two months from the date of order. The opposite parties are challenging the order of the District Forum.

          4.      It may be mentioned that during the pendency of appeal the appellants produced additional documents with petition to receive the same. The complainant / respondent filed objection to the application. This application would be discussed at a later portion of the judgment. The only question that arises for consideration is whether deficiency in service on the part of the appellants is established by the available evidence.

          5.      Admittedly the appellants had allotted a flat to the complainant to be constructed by them in Swathi Nagar, West Fort, Thiruvananthapuram. There was an agreement between the parties. As per the agreement tentative cost was fixed by the appellants and the complainant made initial deposit also. The balance amount was repayable in equal monthly instalments spread over 6 years. As per the agreement the appellants were entitled to fix the final cost of the flat. This has to be done taking into account, the actual cost of construction and the actual land value paid by the appellants after the final disposal of land acquisition cases. So admittedly the complainant is bound to pay the final cost to be fixed by the appellants.

          6.      The case of the complainant is that payment of EMI was made without default. This is denied by the appellants. Ext.P4 is the copy of pass book issued to the complainant by the opposite parties in which entries relating to the payment of instalments as well as the due date for payment are mentioned. It is obvious from Ext.P4 that there was delay in payment of instalments but the payment itself was completed on the date of payment of the last instalment. So obviously the complainant was bound to pay penal interest as per the provisions of the agreement for the defaulted instalments. Even according to the appellants as on 12.8.94 a sum of Rs.2460.74/- only was payable towards principal amount. But the challenged notice of demand was issued only on 05.02.2009. The question is whether this long delay is justified.

          7.      It is in this context the land acquisition cases become relevant. No document relating to the land acquisition case was produced before the District Forum. This was the main reason why the District Forum found deficiency in service on the part of the appellants. As mentioned earlier during the pendency of the appeal the appellants produced several documents mainly relating to the land acquisition for this project along with application to receive the same. The complainant has strong objection in receiving the additional documents in evidence. As a matter of fact, these documents were within the knowledge of the appellants and with due diligence they could have produced the same before the District Forum itself. So strictly there is no ground to admit the additional documents produced in evidence.

          8.      However, even if these documents are accepted in evidence it is quite obvious that the land acquisition cases were finally decided as early as in 1993 and the payment ordered by the land acquisition court was effected as early as in March 1993 as one of the documents shows. It appears that there were five land acquisition cases relating to the acquisition made for the purpose of executing this project. Copies of most of the judgments of the land acquisition court are produced in appeal. It is seen that the last order was pronounced on 03.01.91. The order of the land acquisition court was challenged before the Hon'ble High Court by filing land acquisition appeals. The documents produced by the appellants show that the land acquisition appeals were finally decided last by 15.07.92 and as already mentioned the District Collector ordered the payment of compensation accordingly by 05.03.93. It is surprising that the appellants took around 16 years to fix the final cost of acquisition.

          9.      So based on the contention of the appellants themselves only a little amount remained to be paid in 1994 when the due date for the payment of the last instalment ended. Obviously the construction was completed before that period. According to the appellants the amount spent for electrification and flooring is not included in the final cost calculated by them. Really, there is nothing to support this contention. Even if this contention is accepted the fact remains that after the expiry of the due date for payment of the last instalment the appellants took nearly 15 years to issue Ext.P5 notice of demand. This delay by no standards  and reasonable and is clear deficiency in service on the part of the appellants. There is nothing to explain the delay apart from the lethargy of the officers of the appellants for which they are answerable. The appellants can not indefinitely delay fixing of the final cost of acquisition and construction and go on claiming interest for the amount from the respondent / complainant. In the light of this clear deficiency in service we find no reason to interfere with the order of the District Forum.

          Hence the appeal is devoid of merit and is accordingly dismissed but without costs.

K.CHANDRADAS NADAR   : JUDICIALMEMBER

A.RADHA                               : MEMBER

SANTHAMMA THOMAS      : MEMBER

Be/