Date of filing : 21-03-2002 Date of order : 18 -09-2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD C.C. 60/02 Dated this, the 18th day of September 2010 PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SHYMALADEVI : MEMBER Asha.P.K, W/o. V.Rajeev, “Bhavana”, Beach Road, } Complainant Kasaragod (Advs. P.V. K. Nair, K, Mahalinga 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.G. Kasaragod) O R D E R SMT.P.P.SHMALADEVI, MEMBER This case is remitted by the Hon’ble State Consumer Dispute 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 the 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 restored and notice was issued to both parties. For complainant’s counsel P.V. Kunhikannan Nair and K. Mahalinga Bhat appeared. For Opposite parties Adv. Beena.K.G. appeared and filed vakalath. 2. Brief facts leading to file this complaint are that the opposite party No.1 constructed 3 types of flats under the Muttathody Housing Scheme at Muttathody village, Kasaragod Taluk. That the construction was completed during the year 1991-92. As per the application of the complainant received a provisional allotment letter dt.1-7-1992. As per the demand in the final allotment letter dt.15-7-1992 the complainant has paid `96,400/- being the initial deposit on 27-7-1992. As per clause 3 of the Final Allotment letter dt.15-7-1992 the balance cost of the Flat shall be paid by the complainant with 15.5% interest per annum in 162 equal monthly instalment of `2,315/- only. But at the time of executing the agreement for sale the opposite party No.2 has raised the rate of interest from 15.5% to 16.5% and also enhanced monthly instalment to `2,420/-. The agreement of sale was executed between Kerala State Housing Board represented by opposite party No.2 and the complainant on 31-10-1992. The complainant has taken possession of the Flat No.EF 8(a) 205 on 4-11-1992. The complainant has paid all the instalments within the specified time, without any fault. The first instalment of `2,420/- was paid by her in the office of Regional Engineer, Kozhikode on the date of execution of sale of agreement. 2nd instalment was paid by her through Lord Krishna Bank, Kasaragod branch as per the chalan dt.10-11-1992 subsequent instalments were paid by her through Lord Krishna Bank, Kasaragod branch and it was being credited by them to the account of KSHB, Kasaragod. 3. The opposite party No.3 has sent a letter dt.6-11-1999 stating that as finalising the price of the Flat allotted to the complainant came to `3,07,476/-. The opposite party No.3 demanded to remit `1,15,049/- being the difference in cost with interest. The complainant has sent a lawyer notice dt.7-12-1999 stating that he is not liable to pay any additional amount as claimed in the letter dt.6-11-1999. In the said notice the complainant also requested that opposite party No.2 furnish data and the basis on which the refixation of the price of the flat allotted to the complainant in calculated. In reply to the letter dt.7-12-1999. Opposite party No.3 has send a letter dt.27-7-2001 demanding from complainant to pay the difference in cost as mentioned in the letter dt.6-7-1999. The said demand was illegal and hence complainant sent another lawyer notice dt. 31-10-2001 to opposite party No.2 and 3 requesting to furnish the detailed account of the actual cost of the flat. Opposite party No.2 has sent reply dt.23-11-2001 it is seen from the reply notice that the alleged final cost was fixed on 30-04-1992 at `2,70,348/-. But in the agreement of sale executed on 31-10-92 the cost of the land and price of the flat constructed upon the property in tentatively fixed at `2,53,50/-. The complainant has signed the agreement for sale as she was made to believe that the land acquisition proceedings were pending in courts or tribunals for enhancement of compensation. There was no land acquisition proceedings for enhancement of compensation in any court or tribunal, no development work of any land was carried out or any amenities provided. Therefore the KSHB has no right to claim any amount by way of enhancement of compensation, cost of development work or amenities. The opposite parties also charged ventages charges twice. 4. The complainant has paid `91,405.95 on 28-11-01 being balance amount. The complainant has paid the entire balance amount within the stipulated time as declared by the KSHB through news papers so that opposite parties are liable to repay a sum of `4,570.30 being the 5% of `91,405.95. The complainant has paid total amount of `4,56,425.95. Thus the complainant has discharged all her liability as per the agreement for sale and therefore the complainant is entitled to get the sale deed executed by the KSHB in respect of falt No.EF 8(a) 205 in favour of the complainant. As an income tax payee the complainant used to obtain a certificate absent the details of repayment made by her the KSHB for producing before Income Tax Authorities. The opening balance as on 1-4-99 is `1,19,795.46 and the balance as on 31-3-2000 is `1,09,931.95 as seen from the certificate dt.16-6-2000. But this certificate dt.28-01-2002 issued by Assistant Secretary, KSHB, Kasaragod, the principal amount is `1,01,062/-. As this principal amount `17,598.59 is shown in the certificate dt.16-7-2001 is deducted the outstanding balance as on 1-4-2001 will be only `92,333.36. But certificate dt.28-1-2002 shows that the outstanding principal amount is `1,01,062. So the KSHB colleted excess amount of `8,728.64 from the complainant. 5. The opposite parties did not take any action to provide facilities for adequate water supply. The KSHB also made by arrangement to dump the waste materials. The claim for interest made by opposite parties is clearly time barred. So it is clear that there is unfair trade practice, deficiency in service and negligence on the part of KSHB. Hence the complainant is entitled for compensation. Hence the complainant is claiming to get the sale deed and registered by opposite party No.2 in respect of Flat No.E.F 8(a) 205 in favour of complainant at her expenses fixing the final cost of `2,53,080/- and to repay `4,570.30 being 5% of balance amount as concession declared by opposite parties, refund `2,420/- being excess amount wrongly collected, refund `8,728.64 being excess principal amount wrongly collected with compensation and cost. 6. The opposite parties filed version. According to them the complaint is not maintainable. Since there is no consumer relationship between the parties and also the disputes relates to ‘pricing’ which is beyond the jurisdiction of consumer Forum. The opposite parties agreed that the Flat No.EP 8(a) 205 in Muttathody Housing Allotment Scheme was allotted to the complainant and she had paid an amount of `96,400/- as initial deposit and the agreement for sale was executed on 31-10-1992. 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 amount of the increased cost of development works and amenities undertaken with respect to the scheme. When the scheme account of Muttathody HAS was finalized it was found that the complainant is liable to pay an amount of `1,15,049/- towards the final cost of the building. Accordingly letter was sent to the complainant for balance payment. But instead of paying the amount, the complainant had sent a letter dt.7-12-1999 stating baseless contentions. The final cost was not fixed on 30-4-1992 but it was fixed taking the date as 30-4-1992. They were not collected the ventage charge twice. According to opposite parties the period of repayment of HP instalments was fixed for 13 ½ years from the date of agreement. There are many procedures to be followed by the Board for finalizing the account in a Housing Accommodation scheme. The complainant has not paid the final cost before 31-10-2001 and hence she has not liable to get the concession of 5% on the balance amount. The certificate of principal and interest is giving every year to the allottees, as per HP register maintained in the office on 28-1-02, certificate issued as per the statement received from the computer and amount shown is not principal amount outstanding, but the principal amount credited during the financial year 1-4-2001 and 28-1-2002. The Board had spent amount towards development works and common amenities in the scheme till 1993. 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. 7. On the side of the complainant Exts A1 to A17 marked. No documents marked on the side of opposite parties. Heard both sides. Ext.A1 is the agreement of sale executed between the complainant and opposite party No.2 on 31-10-1992. Ext.A2 in the letter dt.6-11-99 by executive Engineer, opposite party No.3, demanding the complainant to remit `1,15,049/- being the difference in the cost with interest. Ext.A3 is the lawyer notice sent by complainant to opposite party No.3 dt. 7-12-1999 stating that she is not legally liable to pay additional amount , Ext.A4 is the letter sent by Opposite party No.3 in reply to notice dt.7-12-1999. Ext.A5 is the photocopy of lawyer notice dt. 31-10-2001 sent by the counsel of the complainant to opposite party No.2 and 3. Ext.A6 is the photocopy of the reply dt. 23-11-2001 sent by opposite party No.2. Ext.A7 is photocopy of the lawyer notice dt. 4-2-2002 sent by counsel of the complainant to opposite party No.2 and 3. Ext.A8 is the copy of reply dt. 28-2-2002 sent by opposite party No.3. Ext.A4 is the copy of the letter sent by Assistant Secretary, KSHB, Kasaragod dt.20-11-93 stating that complainant is defaulted repayment of 4 monthly instalments. Ext.A10 is the copy of letter sent by complainant the Assistant Secretary, KSHB, Kasaragod stating that she is authorized the manager Lord Krishna Bank, Kasaragod branch to pay the instalments from her S.B. account. Ext.A11 is the final allotment letter dt.18-7-1992. Exts A12 & A13 are the copies of chalan dt.10-11-1992, 28-12-2001 respectively. Exts A14 to Ext.A17 are the certificates issued by KSHB dt.4-5-1999, 16-6-2000, 16-7-2001, 28-01-2002 respectively to produce it before Income Tax Authorities. 8. The case of the complainant is that she had paid instalments in time without any fault. The opposite party No.3 has sent Ext.A2 letter dt.6-11-1999 stating that on finalizing the cost of the flat allotted to the complainant comes to `3,07,476/- and demanded the complainant to remit `1,15,049/- being the difference in cost and interest. The complainant sent Ext.A3 notice in reply to Ext.A2 letter to opposite party No.3 stating that she is not legally liable to pay any additional amount. Responding to Ext.A3 notice. Ext. A4 notice has been sent by opposite party No.3 has sent a letter on 25-07-2001 demanding the complainant to pay the different cost as mentioned in Ext.A2 letter. Agrieving the said demand the complainant sent Ext.A5 lawyer notice to opposite party No.2 and 3 requesting them to furnish the detailed account of actual cost of the flat. Responding to Ext.A5 notice. Ext.A6 notice along with calculation of final cost has been sent by opposite party No.3 stating that the final cost was fixed on 30-4-1992 at `2,70,348. Since the flat is in the ground floor she is also liable to pay `13,515/- as ventage charge. As per the calculation statement she has to pay an additional amount of `1,35,517.21 as difference of final cost and interest. Eventhough the final cost was fixed on 30-4-1992 which was not mentioned in Ext.A1 agreement executed on 31-10-2002. The fixation of final price was intimated only through Ext.A2 letter on 6-11-1999. 9. The opposite parties in their version 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. 10. Clause 3 of the Ext.A1 reads as under: The purchase price fixed in the deed for the flat thereon is tentative and provisional for the reasons described in the preamble to this deed and the parts of the second part hereby specifically agrees that the price so fixed as subject to the revision by the Board. 11. Clause 9 of the Ext.A1 read as:- It is agreed that the KSHB shall e to refix the final price of the apartments charges thereon taking into account interalia the enhanced compensation awarded by courts and Tribunals as for actual cost of construction. The cost incurred for Board or 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. 12. 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 the manner hereinafter appearing. 13. The opposite parties in their version agreed that there was no land acquisition references relating to the Muttathody Housing Accommodation scheme, the statement relating to 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 in the entire state and here due to oversight 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 1991-92. There is no evidence to show that opposite party had spent any amount for development works and common amenities till 1993. On the other hand the fixing of final cost as on 30-04-1992 itself shows that the work was completed prior to that. 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 sustainable. 14. Here there is no dispute regarding the allotment of flat to the complainant, the payment of initial deposit of `96,400/-, the agreement of sale executed on 31-10-1992 and the total payment made by the complainant, i.e, `4,56,425.95. 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 work was completed in the year 1991-1992. Nothing to shown by the opposite parties that the other works has been done by them thereafter. Of course the opposite parties have the right to fixing the final cost 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 have 13 ½ years time to remit the instalment cannot be a justification 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). 15. The calculation statement of final cost was sent along with Exts A6 notice by opposite party No.2. Ext.A1 agreement keep mum about the ventage charges. But in the calculation statement the opposite parties charged `13,157/- as ventage charges. There is no justification for the calculation of ExtA6 statement, here the complainant prematurely closed the entire amount in the year 2001 itself though the period of repayment ends in the year 2005. 16. Be that as it as already discussed earlier, that as per the term of agreement the complainant stood insulated against any cost increase. It is also not in dispute that the complainant in consultation with the opposite parties had remitted full amount as per the terms and conditions of agreement, she was entitled for registration of sale deed in her favour. Further with regard to maintainability the contention of opposite parties not sustainable as it was already decided by the Hon’ble State Commission. 17. Considering all these aspects there is no justification for non-execution of sale deed 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. Threrefore we are of the view that the opposite parties are liable to pay the cost of the proceedings to the complainant. In the result the complaint is 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 the order. The complainant shall bear the cost for the registration. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Exts. A1. Agreement for sale of the property and the aprtment. A2.6-11-99 copy of letter sent by OP to complainant. A3. 7-12-99 copy of letter sent by P.K. Asha to Executive Engineer KSBH Kasaragod. A4.25-7-01. copy of letter sent by OP to complainant. A5. 31-10-01 copy of lawyer notice. A6.23-11-01 reply notice. A7. Copy of lawyer notice. A8. 28-2-02 reply notice. A9. 20-11-93 Notice No.1 A10.24-11-93 photo copy of letter sent by complainant to Asst. Secretary KSHB, Kasaragod A11.15-7-92 photocopy of final allotment letter A12.& A13 10-11-92 Photocopy of chalans A14.4-5-99 photocopy of certificate issued by KSHB Kasaragod to complainant. A15. 16-06-2000 Photocopy of Certificate ,, A16. 16-07-2001 photocopy of certificate A17. 28-1-2002 photocopy of certificate 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 | | 
