. KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU, THIRUVANANTHAPURAM APPEAL 478/2000 JUDGMENT DATED: 12.12.2007 Appeal filed against the order passed by CDRF, Palakkad in OP.No.340/98 PRESENT SHRI.M.V.VISWANATHAN : JUDICIAL MEMBER SHRI.S.CHANDRAMOHAN NAIR : MEMBER The Secretary, Kerala State Housing Board, : APPELLANT Thiruvananthpauram. (By Adv.Thomas P.Jacob) Vs. T.M.Sudevan, : RESPONDENT Janatha Tyre Retrading Co., Kalmandapam, Palakkad, Coimbathore Road. (By Adv.B.S.Shaji) JUDGMENT SHRI.M.V.VISWANATHAN : JUDICIAL MEMBER The above appeal is directed against the order passed by the CDRF, Palakkad in OP.No.340/1998 which was preferred by the respondent herein as complainant against the appellants as opposite parties 1 and 2 claiming refund of Rs.28,910/- which was recovered from the final instalment by the opposite parties. The opposite parties denied the case pleaded by the complainant and contended that the deductions effected by the opposite parties from the final instalment were in accordance with the conditions stipulated in the mortgage deed executed between the complainant and Kerala State Housing Board. But the lower forum accepted the case of the complainant by finding deficiency in service on the part of the opposite parties in making delay of six months in the payment of the final instalment. Thereby the lower forum directed the opposite parties to refund Rs.28,910/- with interest @ 18% per annum from 5.12.96 till the date of realization. Aggrieved by the said order the present appeal is preferred. 2. When this appeal is taken for final hearing there was no representation for the respondent/complainant. We heard the learned counsel for the appellant/opposite parties. He relied on clause 3, 7 and 8 of the Mortgage deed which was marked before the lower forum as Ext.D1 and submitted that the deduction of Rs.28,910/- from the final instalment was in accordance with the terms and conditions stipulated in Ext.D1 Mortgage deed dated 4.2.95. Thus, the appellant requested for setting aside the impugned order passed by the lower forum. 2. The points that arise for consideration are:- 1) Whether there was any deficiency in service on the part of the appellants/opposite parties in disbursing the final installment of Rs.80,000/- to the complainant? 2) Is there any sustainable ground to interfere with the impugned order passed by the lower forum? 3. Points 1 and 2 The fact that the mortgage deed was executed between the respondents/complainant and the appellant/opposite party Kerala State Housing Board is not in dispute. Ext.D1 is copy of the aforesaid mortgage deed dated 4.2.95. As per the clause 3 of the mortgage deed, disbursement of the loan amount by way of 3 installments was subject to the availability of funds with the Kerala State Housing Board. The mere fact that they occurred delay of six months in releasing final installment of Rs.80000/- cannot be taken as a ground to hold that there was deficiency in service on the part of Kerala State Housing Board. Lower forum cannot be justified in holding that there was deficiency in service on the part of Kerala State Housing Board. 4. There is no dispute that the commencement of repayment of loan is to be from the very succeeding month in which the last installment is paid or on the expiry of one year from the date of disbursement of 1st installment whichever is earlier. In the present case 1st installment of Rs.40000/- was paid to the complainant on 8.5.95. If that be so, at any rate repayment of loan is to be commenced from June 1996. It is come out in evidence that the complainant submitted the stage certificate only in July 1996. The complainant was not in a position to complete construction of the house within one year from the date of disbursement of the first installment. Then, the appellant/opposite party is justified in collecting the installments due from June 1996. It is to be noted that the installments would taken in the respective interest also. Clause 7 and 8 of Ext.D1 mortgage deed would also make it clear that the Kerala State Housing Board is having the right and authority to deduct interest from the final installment. Thus, the deduction of Rs.28,910/- towards interest can only be justified. In all respects the appellants/opposite parties have acted only in accordance with the terms and conditions stipulated in D1 Mortgage deed dated 4.2.95. The lower forum has gone wrong in ordering refund of Rs. 28910/- with interest at the rate 18% per annum. Moreover, by the deduction of the said amount no prejudice has been caused to the complainant. In fact complainant is benefited that he need not pay interest on that amount. We are pleased to hold that the impugned order passed by the lower forum is against the provisions contained in D1 Mortgage deed dated 4.2.95 executed between complainant and Kerala State Housing Board. Hence the impugned order passed by the lower forum is liable to be setaside. Hence we do so. These points are answered accordingly. In the result Appeal is allowed. The impugned order dated 8.3.2000 passed by the lower Forum in OP.340/98 is quashed. In the facts and circumstances of the case there will be no order as to costs. SHRI.M.V.VISWANATHAN : JUDICIAL MEMBER SHRI.S.CHANDRAMOHAN NAIR : MEMBER ps | 
