D.o.F:17/8/11
D.o.O:29/10/12
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.208 /2011
Dated this, the 29th day of October 2012
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.RAMADEVI.P : MEMBER
SMT.BEENA.K.G : MEMBER
P.Ramachandran,
S/o Meloth Narayanan Nambiar(late)
EF8(a)206, 3rd Block,KSHB Muttathodi, : Complainant
Accomodation Scheme, Vidyanagar,
Po.Muttathodi,Kasaragod
(Adv.Shrikanta Shetty,Kasaragod)
1.The Secretary, Kerala State Housing Board.
Thiruvananthapuram.
2. The Administative Officer, KSHB,
Chakikorathukulam, Kozhikode.
3. The Executive Engineer, KSHB : Opposite parties
Kasaragod Division, Nullipadi,Kasaragod.
4. The Asst. Secretary, KSHB
Kasaragod Division, Nullipadi,Kasaragod.
(Adv.T,.V.Sathyendran,Kasaragod.)
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
The issue involved in this case needs no much elaboration since it has already been considered by this Forum in two earlier identical complaints and the finding of the Forum has been sustained by the Hon’ble State Commission in their judgments in appeal Nos 655/2010 & 656/10 dtd 18/8/11.
2. The grievance of the complainant in brief is that the opposite party is claiming an additional cost of `189718/- as per demand notice dtd 3/3/2011 alleging to be the outstanding dues ie(difference in cost) to them relating to the allotment of flat No.EF8(a)206 to him. It is his further grievance that consequent to the demand opposite party is refusing to execute deed and register the sale deed in favour of the complainant in respect of the flat allotted to him. According to the complainant he has been allotted with the flat in dispute on 8/4/92 and the tentative price fixed was `241000/-. As per the final allotment letter dtd.19/6/1992 he was directed to pay `96400/- as initial amount and the cost of the flat fixed in that letter was ` 253053/- claiming an excess of `12053/- than the cost fixed in provisional allotment letter. Subsequently complainant deposited `98000/- in two instalments. Out of that `97021/- has been adjusted towards the value and the balance he remitted in 162 monthly instalments of `2410/- each with interest @15.5% per annum . He was also directed to execute an agreement on 26/11/92 and the possession of the flat was handed over to him on 2/12/12. In the agreement the rate of interest was enhanced to 16.5%. Subsequently on 6/11/1999. 2nd opposite party issued a notice to complainant demanding `121424/- as difference in cost as additional cost as the cost was fixed as `374477/-. To the said notice complainant sent a reply indicating that they are not entitled to claim any additional amount by way of refixation of the costs of the flat . Later the 4th opposite party again served the notice under dispute dated 3/3/11 claiming `189718/- towards the outstanding dues in difference in costs to the board relating to the flat allotted to the complainant. Alleging the said demand as illegal and amounting to deficiency in service the instant complaint is filed for setting aside the said demand and also for a direction to opposite parties to execute the sale deed in respect of flat No.EF8(a) 206 with compensation and costs.
3. According to opposite parties as per paragraph 9 of the agreement executed on 26/11/1992 the Kerala State Housing Board is entitled to refix the final price of the apartment taking into account the cost of development works and amenities undertaken with respect to the scheme after final settlement of accounts with the scheme. There were no land acquisition cases or any other cases. The difference in cost is purely the balance of actual cost of the flat finally fixed based on the actual expenditure incurred by the Board and the same is the difference between the tentative cost and final cost. As per condition 10 of the agreement the Board can claim the difference in cost. The Board has calculated the tentative cost after taking consideration of approximate expenditure incurred for the construction of flats and minor development works executed before allotment. The amount mentioned in notice dtd.6/11/99 the total interest worked out as on 31/7/99 is ` 63584/- and the grand total comes to `121424/- as on 31/7/99. Had the complainant remitted `121424/- with other dues as early on 6/11/99 then Board would have issued the sale deed immediately on remittance. But the complainant did not remit the amount and lagged the matter resulting the amount hiking to `189718/- as on 3/3/11. The allegation regarding the development works raised by the complainant against the Board is wrong. The Board had provided external water supply arrangements such as water tank, pump, pump house bore well, open well, road, park and sufficient open space etc in this scheme. The notice dated 3/3/2011 was sent to the complainant requesting the complainant to remit the difference in cost with interest. The difference in cost is the difference between the final cost and the tentative cost which is legally bound to pay by the allottee. Final cost is fixed by the Board based on actual expenditure where as the tentative cost was fixed based on estimate and anticipated expenditure only. Instead of paying the amount complainant sent a lawyer notice challenging the demand. The Board has approved the final cost on 16/4/1998 immediately on fixing the final cost. The complainant is liable to pay the amount claimed by the opposite parties and hence there is no deficiency in service on the part of opposite parties.
4. Complainant filed proof affidavit in lieu of examination-in-chief. Exts.A1 to A8 marked on the side of complainant. For opposite parties Exts.B1 to B4 marked. Both sides heard and documents perused.
5. The only point to be determined is whether the opposite party is justified in making claim for enhanced amount after a much longer paid under the guise of the agreement executed between the complainant and opposite parties.
6. Opposite parties are relying on clause 9 of the Ext.A3 agreement to justify their demand for additional or enhanced amount. But clause 9 allows the opposite parties to refix the final price of the apartment charges taking in to account the enhanced compensation awarded by courts and tribunals as per actual cost of construction. They are also entitled to claim the cost for defending such proceedings also before the courts and tribunals. But in this case they themselves admit that there were no land acquisitions cases pertaining to the acquisitions of land for the Housing scheme. Further there is no explanation forthcoming about the nature of development works and amenities undertaken with respect to the housing scheme.
7. The Hon’ble State Commission in their judgments in Appeal Nos.654/2010 and 655/2010 arising out of the order of this Forum in CC 60/02 and 61/02 with respect to the identical case on hand arising out of the same housing scheme has observed that there are no records to show that the opposite parties have carried out any additional works and that there were any LAR cases with regard to the acquisition of land and hence the opposite parties are not entitled to fix a final price at a later stage thereby putting the complainants to harassment. The Hon’ble State Commission in the said judgments directed the opposite parties to execute the sale deed in favour of the complainant.
8. The learned counsel for opposite parties Sri.T.V Sathyendran has placed reliance on an unreported common judgment of the Hon’ble Apex court in SLP(Civil) 21478/2008, 22115/08 and 2215/08 KSHB & Anr vs Narayanan Poduval & Ors. On a careful perusal of the said common judgment it is seen that the facts and circumstances of the said case are entirely different from that of this case. Therefore the dictum laid down in that judgment is not applicable to this case.
In view of the above we hold that the claim of the opposite parties as per Ext.A6 demand notice ie ` 189718/- with future interest and penal interest is unsustainable and baseless. The said demand notice is therefore cancelled. The opposite parties are further directed to execute the sale deed in respect of the flat EF 8(a)206 in favour of the complainant without collecting any additional amount. However the claim of the complainant for compensation and costs are declined. Time for compliance of this order is 2 months from the date of receipt of this order.
Exts.
A1-23/3/1992-letter issued by OP.2 to PW1
A2-Provisional allotment letter
A3-Copy of agreement for sale
A4- 6/11/99- copy of letter sent by OP.4
A5-2/5/11-copy of lawyer notice
A6 demand notice
B1-25/7/2001- copy of letter issued by OP.4 to PW1
B2-26/3/12-copy of reply notices
B3-copy of calculation statement
B4- copy of circular
PW1- P.Ramachandradn-complainant
Sd/ Sd/ Sd/
MEMBER MEMBER PRESIDENT
eva
/Forwarded by Order/
SENIOR SUPERINTENDENT
