DATE OF FILING: 5.4.2012.
DATE OF DISPOSAL: 24.9.2016.
Dr. N.Tuna Sahu, Member:
The complainant has filed this consumer complaint under Section 12 of Consumer Protection Act, 1986(for short C.P. Act, 1986) alleging deficiency in service against the Opposite Parties (for short, the O.Ps) and redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that he is a retired Government Servant residing at BRIT Colony, Housing Board Qr. No. EB -59 Stage-1, Neelakantha Nagar, Berhampur, Ganjam since long. The complainant purchased a house under NNHAS Scheme Stage-1 from Berhampur Regional Improvement Trust on easy monthly installment basis and took possession of said house and is in possession till date on the assurance that the registration of the house in the name of the complainant will be done after full and final settlement of the dues. Owing to financial stringency the complainant was not in a position to clear up monthly installments regularly. However, on 16.02.1998, the O.P.No.2 informed the complainant to deposit entire outstanding amount of Rs.19,465/- on or before 28.2.1998 in their letter No.1120/BDA dated 16.2.1998. However, the complainant was not in a position to deposit the said amount within the stipulated period but deposited the said amount of Rs.19,465/- on 7.3.1998 being permitted by O.P.No.2 vide Book No. 1159, receipt No. 57932 and 57933. In spite of the aforesaid payment no attempt was made by the Opposite Parties to register the said house in favour of the complainant which speaks volumes against the service deficient of the O.Ps. Ultimately the complainant issued a notice on 10.1.2012 requesting the O.Ps to go for registration but the O.Ps remained silent the reasons best known to them and thereafter approached several times in person to the O.Ps requesting them to go for the registration of the said house but in vain. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to register the house in the name of complainant and to pay compensation of Rs.10,00,000/- with 10% interest from the date of purchase towards mental agony in the best interest of justice.
3. Upon notice the O.Ps filed written version through their learned counsel Dr. B.V. H.B. Sharma & Associates. In the written version, it is stated that all the allegations in the said complaint that are not specifically admitted herein shall be deemed to have been specifically denied by the O.P. and the complainant is put to proof of the same. The erstwhile Berhampur Regional Improvement Trust, Courtpeta, Berhampur had acquired the private land to an extent of about 18 Acres in old Berhampur village under Berhampur Tahasil. In course of time in place of BRIT the present Berhampur Development Authority has come into being and the Berhampur Development Authority was implemented a Housing Scheme called as “NILAKANTHANAGAR HOUSING ACCOMMODATION SCHEME” in Berhampur Town and constructed 666 houses of different categories in that regard. The complainant Somanath Sethi was allotted with EWS House on installment basis of purchase vide letter No. 2227/BRIT/dated 6.6.1985. Subsequently, the individual house No.59 was allotted in favour of the complainant under the said Housing Scheme, Stage-1 vide letter No. 3230/BRIT/dt. 24.9.1987. The complainant was informed to take physical possession from the Asst. Engineer, Berhampur Development Authority, Berhampur, and to deposit the installment dues regularly with effect from April 1988 vide letter No. 3138/BDA dated 14.7.1988. But the complainant had not deposited the installment amounts up to 1998 in spite of repeated notices that were issued to the complainant. The complainant was asked to deposit the outstanding installment amounts due to the tune of Rs.8,880/- and Rs.10,585/- towards the penal interest by 31st December 1997. In response to the said letter the complainant had requested the O.P.No.2 to permit him one month time to pay the due amount by his letter date 30.12.1997 through registered post. After lapse of one month, the O.P.No.2 issued a reminder to the complainant to deposit the then outstanding dues calculated up to 18.11.1997 as per letter No. 1120/BDA/dt.16.2.1998. In the meanwhile the advertisements were issued by the B.D.A. for the sale of the house through public auction as the complainant had defaulted more than once in payment of the installment due amount. Thereafter the complainant had requested the O.P.No.2 to allow him to deposit Rs.19,465/- (Rs.8880/- + Rs.10585/- mentioned above) towards the then outstanding installment amounts along with the penal interest accrued and due by December 1997 against the House No.EWS-59 of NNHAS and further requested to stop the proposal for auction of the house. The O.P.No.2 allowed the said request of the complainant subject to cancellation if he again defaults in payment of the said installment amounts. It is also stated that the complainant deposited Rs.8880/- towards forty installments (out of seventy five installments) and Rs.10,585/- towards penal interest on 7.3.1998. The complainant was to deposit the total seventy five installments against the allotment of EWS-59 house on installment basis. The installment for each quarter was Rs.222/-. Accordingly from time to time notices were issued to the complainant to deposit the further installments with penal interest due to his delayed payment. After receiving the notice of the complainant through advocate, the complainant was directed OPs vide by letter No.198/BDA/dt.16.1.2002 to deposit a consolidated amount of Rs.11,168/- towards the then outstanding balance installments amount, penal interest and service charges and also intimated the complainant to take the prior permission of the BDA for future construction by him on applying in prescribed proforma and on depositing the required fees for that purpose. At that time, pretending to be innocent in spite of being aware of all the aforesaid facts the complainant required information relating to the dues payable for the allotted house through R.T.I. on dated 14.9.2011 and accordingly information was supplied to the complainant. Thus the complainant, the allottee of EWS House No. 59, NNHAS stage-1 had not deposited the dues as intimated to him by the BDA. Due to non deposit of outstanding dues it was not possible on the part of BDA to execute the lease cum sale deed in favour of the complainant. Therefore there are no latches or negligence on the part of the Berhampur Development Authority. On the other hand the complainant was willfully negligent and of inordinate delay and repeated defaults in payment of the outstanding due as submitted above and therefore there is no manner of any defect or unfairness or callousness on the part of the BDA and therefore the O.Ps are in no way liable to pay compensation to the complainant as alleged by him in his complaint petition or otherwise. Hence the O.Ps prayed to dismiss the case with costs.
4. On the date of hearing, the complainant as well as the O.Ps were absent on repeated calls. In fact both parties were remained absent from 2.12.2015 without steps up to 8.8.2016. Prior to that both parties were also remained absent hence this Forum issued registered notice on 9.5.2014 for appearance of the parties and hearing of the matter. Accordingly both parties were present on 12.6.2014 but again subsequently remained absent without steps. On 8.8.2016 i.e. on the date of last posting of this case, this Forum decided to dispose of the matter on merits as per Section 13(2)(c )of the Consumer Protection Act 1986, since this is a year old dispute and both the parties are remaining absent continuously without any steps.
5. On the date of disposal of the matter on merits, we have gone through the complain petition of the complainant and have also verified the documents filed by the complainant placed on the case record as Annexure-1 to 3. We have also gone through the written version of O.Ps and perused the same as placed on the case record. In fact, despite repeated directions by this Forum, both parties did not prefer to file written arguments. However, the Forum decided to dispose of the matter on merits due to continuous absence of both parties as per Section 13(2) (c ) of Consumer Protection Act, 1986.
6. On merits, the complainant has filed this complaint on 5.4.2012 alleging deficiency in service against the O.Ps. The O.Ps through their learned counsel appeared before this Forum on 5.7.2012 and filed their written version on 16.10.2012. But the complainant on 12.9.2012 filed a petition under Section 13 (2) (b) (ii) of C.P. Act 1986 along with an affidavit dated 11.9.2012 praying to pass an exparte order against the O.Ps. Subsequently, the complainant filed another petition apprehending unable to afford a legal assistant to conduct the proceeding of his case before this Forum because the O.Ps appeared through their learned counsel. Hence, the complainant through his petition dated 5.2.2013 which was filed on 11.2.2013 in this Forum prayed not to allow the O.Ps to defend their case by a legal practitioner. Both the petitions dated 11.9.2012 and 5.3.2013 while were pending in this Forum for disposal, the O.Ps filed their counter petition on 17.6.2013 contending that so far till date, there is no provision in C.P. Act prohibiting an advocate to appear in a consumer dispute when a client wants to engage him and the petition dated 5.2.2012 is not maintainable hence liable to be rejected with costs. After that the complainant once again filed another petition contending that as the complainant is not being represented by any advocate and the O.Ps entered their appearance in this Forum through their counsel and have filed their written version. He also contended that the complainant came across the amended C.P. Act (Act 62 of 2002) wherein the complainant came to know that there is an explicit provision not permitting a legal practitioner if the complainant presented the complaint in person and also read out the relevant portions and prayed not to allow the O.Ps to defend their case by the help of a legal practitioner in view of the statutory provisions which will be highly prejudiced and the complainant may not be in a position to present his dispute properly. He also cited the authority of apex Court in Bar Council of India Vs. Sanjay R. Kothari and others case in support of his contention and contended that the contention of O.Ps raised through their counter is not tenable under law as because they are ignorant of the provisions enumerated in the amended C.P. Act (Act 62 of 2002). Hence, prayed before this Forum to withdraw permitting the O.Ps to engage a legal practitioner/advocate to defend their case in this dispute.
7. We have carefully perused the petitions filed by the complainant and have also gone through the counter of O.Ps and the counter reply filed by the complainant. We have also perused the memo filed by the complainant on 20.8.2013 and have also thoroughly gone through the citation of the Hon’ble Supreme Court vide civil Appeal No. 868 of 2003 in the case of C. Venkatachalam versus Ajit Kumar C. Shah and Others with Civil Appeal Nos. 869-870 in the case of Bar Council if India Vs. Sanjay R Khthari and Others decided on August 29, 2011 by the Hon’ble Supreme Court. As per the prayer in the memo dated 22.8.2013, we have also referred carefully the Para 45 at page 25 of the said judgment. For the purpose of reference, the relevant portion of Para 45 of page 25 of the said judgment are extracted below which reads as follows:
45. The amended Act 62 of 2002 reads as under:
“Amendment Act 62 of 2002 – The enactment of the Consumer Protection Act, 1986 was an important milestone in the history of the consumer movement in the country. The Act was made to provide for the better protection and promotion of consumer rights through the establishment Consumer Councils and quasi-judicial machinery, Under the Act, consumer disputes redressal agencies have been set up throughout the country with the District Forum at the district level, State Commission at the State level and National Commission at the National level to provide simple, inexpensive and speedy justice to the consumers with complaints against defective goods, deficient services and unfair and restrictive trade practices. The Act was also amended in the year 1991 and 1993 to make it more effective and purposeful.”
On plain reading of the above Para, it is crystal clear that there is no mention of prohibiting legal practitioner/ advocate in consumer cases filed in consumer Foras/Commissions where a complainant himself filed a consumer dispute without taking help of a legal practitioner. In this regard, we would like to say that the complainant has time and again tried to mislead the Forum by citing irrelevant citations of Hon’ble Supreme Court which is not applicable. Moreover, we have also gone through thoroughly the Amended C.P. Act (Act 62 of 2002) and found that there is no such provision in the amended Act to prohibit the advocate engaged by the O.Ps in case the complainant files a case himself without taking the help of an advocate. In this regard, we would like to warn the complainant should remain abstain from such deliberate act of misguiding this Forum which may attract cost for abusing the process of this Forum.
8. Now we will focus our discussion on the merits of the complain petition and grievances of the complainant as per the materials available on the case record. On perusal of the case record and complaint, it appears that the complainant is a retired Government servant residing at BRIT Colony, Housing Board Quarter No.EB-59, Stage 1 Neelakantha Nagar, Berhampur, Ganjam. As per the written version of O.Ps, which is not denied by the complainant, one house was allotted to the complainant on installment basis of purchase by the O.Ps vide their letter No.2227/BRIT/ dated 6.6.1985 and subsequently the individual house No.59 was allotted in favour of the complainant under the said housing scheme, Stage-1 vide letter No.3230/BRIT/ dated 24.9.1987. Accordingly, the complainant was informed by the engineer of O.Ps to take physical possession and to deposit the installment due regularly with effect from April 1988 vide letter No.3138/BDA dated 14.7.1988. It is contended by the O.Ps which is also not denied that the complainant had not deposited the installment amounts up to 1998 in spite of repeated notices. Finally, the complainant was asked to deposit the outstanding installment amounts due to the tune of Rs.8,880/- and Rs.10,585/- towards the penal interest by 31st December 1997. In response, the complainant vide his letter dated 30.12.1997 through registered post requested the O.P.No.2 to allow him one month time to pay the dues. However, when he did not deposit the dues, the O.P.No.2 again issued a reminder to deposit the then outstanding dues calculated up to 18.11.1997 as per letter No.1120/BDA/ dated 16.2.1998. The complainant deposited Rs.8880/- towards forty installments (out of seventy five installments) and Rs.10,585/- towards penal interest on 7.3.1998. This is also evident from the Misc. Receipt bearing No.57932 and 57933 dated 7.3.1998 respectively in compliance to letter No. 1120/BDA dated 16.2.1998 of the O.P.No.2. After depositing the outstanding dues, the complainant requested the O.Ps to register the said house in his favour which in his view deficiency in service and ultimately the complainant issued a notice on 10.1.2012 requesting the O.Ps to go for registration but O.Ps remained silent reasons best known them. However, on the contrary, as per the written version with affidavit filed by O.Ps, it is submitted that after receiving the notice through advocate, the complainant was directed by O.Ps vide letter No.198/BDA/ dated 18.1.2002 to deposit a consolidated amount of Rs.11,168/- towards the then outstanding balance installments amount, penal interest and service charges and the O.Ps also intimated the complainant to take prior permission of BDA for future construction to be applied in the prescribed form on deposit of required fees. It is also submitted through the written version that the complainant sought information under R.T.I. on 14.9.2011 regarding dues payable for the allotted house from the O.Ps. Accordingly, the complainant was supplied the information by the O.Ps mentioning that the allotted of EWS house No.59, NNHAS, stage-1 has not deposited the dues as intimated to him by the O.Ps. Therefore, it was not possible on part of the O.Ps to execute the lease-cum-sale deed in favour of the complainant. It was also informed to the complainant that unless and until the complainant pays the O.Ps the whole amount of the outstanding installments plus accrued penal interest and service charges it is not possible to execute the lease-cum-sale deed in favour of the complainant. That apart, in the written version, it is also submitted by the O.Ps that the allegations are false, vexatious and speculative and the complainant’s wife suffering from mental illness is also false, the complainant is not entitled to any kind of relief including alleged compensation of Rs.10,00,000/- with interest as prayed for in his complaint and the complaint is barred by the law of limitation and this Forum has no jurisdiction to decide the complaint to be dismissed with exemplary costs.
9. We have gone through the aforesaid material facts of the case and also verified the documents filed by the complainant placed on the case record. We have also perused the written version of the O.Ps have also examined the contentions raised by the O.Ps in the light of materials placed on the case record.
10. On perusal of the materials placed on the case record, it is found that the complainant has deposited Rs.8,880/- by cash towards forty installments @Rs.222/- per installment out of total 75 installments on 7.3.1998 vide receipt No. 57932. We have also found that the complainant has deposited before O.Ps on the same day i.e. on 7.3.1998 a sum of Rs.10,585/- by cash towards penal interest. Further, it is also found that the complainant has filed only three documents namely Annexure 1 to 3 wherein the Annexure-1 states about the advertisement vide No.946/ BDA dated 7.2.1998 regarding default amount outstanding against the allottee where the present complainant has also been mentioned as a defaulter under Sl. No.7 in the said letter. It is also mentioned in the said letter that the defaulted due was Rs.19,465/- and the offset value of said house was Rs.55,900/-. From the Annexure-2, it is evident that the complainant has deposited Rs.8,880/- towards 40 installments @Rs.222/- per installment and Annexure-3 evidenced to have deposited Rs.10,585/- towards penal interest by 31st December 1997. Besides these three documents, the complainant has filed nothing in support of his claim and the complainant even in his complain petition deliberately neither mentioned how many installments was totally fixed by O.Ps and nor informed the Forum how many installments remained outstanding to be paid by him to the O.Ps. From the perusal of the materials placed on record, it reveals that the complainant has paid only 40 installments out of total 75 installments as fixed by the O.Ps @ Rs.222/- per installment towards cost of the said house. In our considered view, the complainant is yet to make payment of remaining 35 installments @ Rs.222/- which comes to Rs.7,770/- along with penal interest and other charges. The O.Ps in their written version Para-7 have contended that after receipt of the notice of the complainant, the O.Ps through their letter vide No. 198/BDA/ dated 16.1.2002 directed the complainant to deposit a consolidated amount of Rs.11,168/- towards the then outstanding balance installment amount, penal interest and service charges. However, on perusal of the case record, it is revealed that the complainant did not prefer to deposit the said outstanding dues and the complainant has also not filed any convincing and cogent documentary evidence to prove that he has paid the remaining outstanding dues after receipt of the letter dated 16.1.2002. From above discussion, it is clear and we are convinced that the O.Ps have not executed the lease-cum-sale deed in favour of the complainant and not registered in the name of the present complainant due to nonpayment of outstanding dues of the house by the complainant. In our considered view, no authority can give registration if there is an outstanding due on the complainant to be paid to the O.Ps. From the aforesaid discussion, it is clear that the complainant has not cleared his outstanding dues to be paid to the O.Ps. Hence, the O.Ps have not registered the house in the name of the complainant due to his own negligence. In a sequel to the aforesaid discussion, we feel that the O.Ps have no fault or deficiency in service for non-registration of the house of the complainant in his name as per the discussion held above. However, the O.Ps are at liberty to register the house in the name of the present complainant after deposit of the outstanding dues by the complainant before the O.Ps. Since, the O.Ps are no deficient in service, there is no question of awarding compensation or cost in favour of the complainant. The complainant failed to prove his case against the O.Ps, however to meet the ends of justice and our good conscience states the O.Ps may register the house in the name of the complainant after duly receipt of outstanding dues of installments and penal interest thereof from the complainant. The contention as raised by the O.Ps that the case is barred by law of limitation is not acceptable to this Forum since, the cause of action to be continued till registration of the house in the name of the complainant and final repayment of installment dues. Accordingly, the case of the complainant is allowed partly against O.Ps.
11. In the result, the complainant is directed to make deposit of the outstanding installment dues, penal interest and other charges before the O.Ps and the O.Ps are directed to register the house in the name of the complainant after receipt of all dues from the complainant. The above order is to be carried out by the parties within two months from the date of receipt of this order. The case of the complainant is disposed of accordingly. However in the facts and circumstances of the case, we are not inclined to impose any cost.
12. The order is pronounced on this 24th day of September 2016 under the signature and seal of this Forum. The office is directed to supply copies of this order to the parties free of cost.
