State Consumer Disputes Redressal Commission
Rupshikha Singania vs Ludhiana It on 20 January, 2014
2nd Addl. Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No.1054 of 2012
Date of institution : 13.08.2012
Date of Decision : 20.01.2014
Rupshikha Singhania, 3029, Ajanta Co-operative Housing Society, Sector
51-D, Chandigarh - 160047.
...Appellant/complainant
Versus
Ludhiana Improvement Trust, Feroze Gandhi Market, Ludhiana, through its
Chairman.
...Respondent/OP
First Appeal against the order
dated 29.05.2012 of the District
Consumer Disputes Redressal
Forum, Ludhiana.
Before:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member
Argued by:-
For the appellant : Sh. R.S.Joshi, Advocate
For respondent : None
ORDER
VINOD KUMAR GUPTA, MEMBER:
This appeal has been filed by the appellant/ complainant (hereinafter referred as 'complainant') under Section 15 of the Consumer Protection Act, 1986 (herein after referred to as 'Act') against the order dated 29.05.2012 passed in consumer complaint no.756 of 2011 by the Learned District Consumer Disputes Redressal Forum, Ludhiana (hereinafter called as 'District Forum') vide which the complaint of the complainant was accepted.First Appeal No.1054 of 2012 2
2. Brief facts of the case are that the complainant-Rupshika Singhania filed the complaint under the Act against the respondent/Opposite party (hereinafter referred to as 'OP') making averments that the complainant was allotted one flat no.4-E under application no.4123 at Sukhdev Enclave, Hambran Road, Ludhiana vide allotment letter dated 31.8.2006 by the OP. The payment of installment due upto 30.09.2009 alongwith interest was made by the complainant. The complainant deposited the remaining future installment in advance vide demand draft no.319067 dated 28.12.2009 for Rs.3.83 lacs drawn by HDFC Bank limited payable at Ludhiana with the respondent on 30.12.2009. In this case full payment of the above said flat stood paid. The said amount of Rs.3.83 lacs included the interest for 3 months from 1.10.2009 to December, 2009 was paid and the said draft was deposited with the OP on 30.12.2009 but no receipt was issued by the OP despite 20 visits of the complainant and written letters to the OP. Ultimately, it was issued after more than 30 visits and expiry of more than two months. The OP issued the receipt no.69663 dated 3.3.2010 for the said demand draft of Rs.3.83 lacs. As per the receipt the said amount of Rs.3.83 lacs have been appropriated/ adjusted as under:-
Due Date Installment Amount Interest Total 30/3/2010 93000/- 22294.93p 115294.93p 20/9/2010 93,000/- 16740/- 109740/- 30/9/2010 93,000/- 11160/- 104160/- 30/09/2011 48225.07p 5580/- 53805.07p
As per the above chart the OP adjusted the following amounts i.e. Rs.11134.93p (Rs.22294.93p less Rs.11160p) plus Rs.16740/- plus Rs.11160 plus Rs.5580/- aggregating to Rs.44614.93p towards interest for the future period when all the installments have already been paid in full on First Appeal No.1054 of 2012 3 30.12.2009 when demand draft of Rs.3.83 lacs was deposited with the OP and no installment was due. The complainant sent a detailed letter dated 25.03.2010 giving all details to OP with the reasons to issue no due certificate of above said flat and to deliver the possession thereof. But the OP did not do needful. A notice dated 21.5.2011 through speed post was sent to the OP. However, the OP vide memo no. LIT/SB/3953 dated 15.07.2010 had made illegal demand of Rs.44,800/- alleging it to be arrears and asked the complainant to apply for No Dues Certificate on job slip. It was further alleged that the demand of Rs.44,800/- raised by the OP is illegal and arbitrary. The complainant filed the complaint seeking directions to the OP to withdraw the impugned demand of Rs.44,800/- to issue no due certificate and handed over the possession of the plot in question immediately and not to demand the increased cost of flat and directed to pay Rs.1,00,000/- as compensation on account of mental and physical harassment alongwith Rs.10,000/- as litigation expenses.
3. Upon notice the OPs filed their written reply by taking preliminary objections that the complaint is not maintainable and the complainant has no cause of action to file the present complaint. The complainant is not a consumer. On merits it was admitted to the extent that the bank draft was received on 3.3.2010 for an amount of Rs.3.83 lacs and accordingly, the receipt was issued in his favour. It was further submitted that due amount of Rs.9,000/- was recoverable from the complainant against the allotment of flat in question as per the terms and conditions of the agreement duly executed between the complainant and the OP. It was admitted that due to some inadvertent mistake on the part of the concerned officer the amount of Rs.44,614/- was claimed. It has been rectified subsequently to Rs.9,000/- which is due payable by the complainant to the OP. All other allegations were denied and prayed for dismissal of the complaint.
First Appeal No.1054 of 2012 4
4. Parties were allowed by the District Forum to led their evidence.
5. In support of his allegations complainant filed her affidavit as Ex.CW1/A, and documents Ex.C-1 to Ex.C-23. On the other hand, OP filed affidavit of Sh.Raj Kumar, Superintendent of Ludhiana Improvement Trust as Ex.RA.
6. After going through the allegations in complaint, written statement, evidence and documents on record the learned District Forum vide impugned order dated 29.5.2012 allowed the complaint and directed the OP to issue no due certificate of the flat in question and handed over the actual and physical possession of the flat within 45 days from the receipt of the order, subject to deposit of the amount outstanding, if any, not exceeding Rs.9000/- after giving the full detail of the amount to the complainant. Further the OP is directed to pay Rs.5000/- as compensation and Rs.2,000/- as litigation expenses.
7. Aggrieved by the impugned order dated 29.5.2012 passed by the District Forum, Ludhiana, the complainant has come up in the appeal on the ground that the learned District Forum has lost site of the fact that as per the para no.11 of the brochure, the tentative period for the completion of the flat was 2.5 years from the date of allotment on 31.08.2006 which means that the flat should have been completed by February/March, 2009 but the possession of the flat has not been yet handed over to the complainant. The District Forum awarded only Rs.5000/- as compensation. The District Forum has lost site that the complainant has made the payment of entire amount but the OP has failed to handover the possession as such, the complainant is entitled the interest @12% p.a. and amount deposited by her besides Rs.1 lac as compensation for mental agony and harassment suffered by her. The District Forum has erred in allowing the litigation expenses of Rs.2000/- First Appeal No.1054 of 2012 5 only whereas, the complainant has already paid Rs.10,000/- to Mr. R.K.Talwar, Advocate for fighting the case. On the one side the District Forum arrived at the conclusion since the respondent failed to release the willfull motive of the OP from the facts with the respondent adjusted Rs.44,614.93p towards interest for the future even when all the future installments already been paid in advance in full on 30.12.2009 vide demand draft of Rs.3.83 lacs and the OP issued the receipt on 03.03.2010, whereas, the demand draft of Rs.3.83 lacs was deposited on 30.12.2009. The District Forum has lost site of the fact that as per the para no.11 of the voucher the period for the completion of the flat was 2.5 years from the date of allotment made on 31.8.2006 which means that the flat should have been completed by February/March, 2009 but the possession of the flat has not been yet handed over to the complainant but still the District Forum awarded only Rs.5,000/- as compensation. The District Forum has lost site of the fact that the complainant had made the payment of entire amount but the OP had failed to hand over the possession as such the complainant got the interest @12% amount deposited by her besides Rs.1 lac as compensation for mental agony and harassment suffered by her. The District Forum has erred in allowing litigation expenses of Rs.2,000/- only whereas, the complainant has already paid Rs.10,000/- to Mr. R.K.Talwar, Advocate for fighting the case. On the one side the District Forum arrived at the conclusion that since the respondent failed to issue no due certificate after receipt of entire price/costs of the flat and further failed to give the possession of the flat to the appellant and this amounting to deficiency in service on the part of the respondent and therefore, directed the respondent to issue the no due certificate and hand over the possession of the flat to the appellant on the total price/cost of the flat amounting to Rs.12,40,000/- deposited by the appellant with the respondent. Since the respondent has charges interest @12% p.a. on the First Appeal No.1054 of 2012 6 installments then the appellant is also entitled to the same interest on the amount deposited for the period of delay in handling over the possession of the flat by the respondent to the appellant. It was prayed that the appeal may kindly be accepted and the impugned order dated may be set-aside.
8. Neither the counsel for the responden/OP nor nobody on behalf of the respondent/OP appeared at the time of arguments.
9. We have gone through the pleadings of the parties and perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellant/complainant.
10. It is admitted fact that the OP allotted one flat no.4-E under application no.4123 at Sukhdev Enclave, Hamran Road, Ludhiana vide allotment letter bearing memo no.LIT/SV/9393 dated 31.08.2006 to the complainant Ex.C-1. The tentative cost/price of the flat was amounting to Rs.12,40,000/- as Ex.C-1. The complainant deposited Rs.3,83,000/- vide demand draft no. 019367 dated 28.12.2009 drawn on HDFC, Bank payable at Ludhiana vide letter dated 1.2.2010 Ex.C-2. The complainant has placed on record receipts Ex.C-9 to Ex.C-23. The demand draft of Rs.3,83,000/- was deposited on 30.12.2009 in the office of the Ludiana, Improvement Trust but the receipt for the said demand draft has not been issued by the OP after making the installment due up to 30.09.2009. The remaining installments were paid by the complainant in advance in order to save interest. The complainant wrote a letter to the OP for non issuance of receipt of demand draft for Rs.3,83,000/- on 30.12.2009 and moved an application for the issuance of no due certificate Ex.C-4. The complainant wrote a letter Ex.C-5 for the issue of no due certificate as the full payment of the plot has already been made.
10. A perusal of the record shows that as per para no.11 of the Brochure the tentative period for the completion of flat was 2.5 years but almost 5 years have been expired and there was no intimation for First Appeal No.1054 of 2012 7 completion of flat Ex.C-6. On the other hand, the OP has claimed that Rs.9,000/- is still outstanding against the complainant but the OP has not placed on record the detail of Rs.9,000/-, so it cannot be presumed that the amount of Rs.9000/- is due against the complainant and the complainant has made payment of the flat but despite of that OP has not issued the no due certificate and not handed over the possession of the flat to the complainant which amounts to deficiency in service on the part of the OP. The District Forum has awarded Rs.5,000/- as compensation and Rs.2,000/- as litigation expenses which is too meager. So the order of the District Forum is modified to the extent that the complainant is entitled for compensation to the tune of Rs.20,000/- and litigation expenses of Rs.5,000/- instead of Rs.5,000/- as compensation and Rs.2,000/- as litigation expenses.
11. In view of the above discussions, we are of the opinion that the order passed by the learned District Forum is modified to the extent that demand of Rs.9000/- is illegal and cannot sustainable because OP did not give detail of Rs.9000/-. The OP shall be directed to pay Rs.20,000/- as compensation and Rs.5,000/- as litigation expenses and the other part of the order passed by the learned District Forum is upheld and affirmed.
12. The arguments in this appeal were heard on 13.01.2014 and the order was reserved. Now the order be communicated to the parties.
13. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Vinod Kumar Gupta) Member January 20, 2014 Rs