State Consumer Disputes Redressal Commission
Thanjavur Housing Unit Thanjavur vs K. Selvaraj Karanthai, Thanjavur on 14 October, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt.Vasugi Ramanan, M.A., B.L., MEMBER I Thiru.S.Sambandam, B.Sc., MEMBER II F.A.566/2007 [Against order in O.P.40/2004 on the file of the DCDRF, Thanjavur] DATED THIS THE 14h DAY OF OCTOBER 2010 1.
The Cashier, | Thanjavur Housing Unit, | Pudukottai Salai, | Thanjavur. | | Appellants/Opposite Parties
2. The Executive Engineer and Administrative | Officer, | Thanjavur Housing Unit, | Pudsukootai Salai, Thanjavur. | Vs. K. Selvaraj, | Respondent/complainant S/o.Kuzhandaivelu, | No.13/1407, Vadakku Sunnampookara Street, | Karanthai, Thanjavur. | The Respondent as complainant filed a complaint before the District Forum against the Appellants/opposite parties praying for the direction to the opposite parties to pay Rs.15,000/- with interest at 24%, to pay Rs.50,000/- as compensation and to pay Rs.5,000/- towards cost. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.29.09.2005 in O.P.40/2004.
This appeal coming before us for hearing on 29.09.2010, upon hearing the arguments of the either counsels and perused the documents, written submissions as well as the order of the District Forum, this Commission made the following order:
Counsel for the Appellants /OPs : M/s.S.Rajakumar, Advocate.
Counsel for the Respt/Complainant : M/s.L.Vijayan, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The order dated 29.09.2005 in O.P.40/2004 on the file of District Consumer Disputes Redressal Forum, Thanjavur, is impugned in this appeal by the opposite parties.
2. The complainant after inspecting the building constructed by the opposite parties for allotment to the public, had chosen HIG-II-66 for purchase, for which, as advance, he had paid a sum of Rs.15,000/- on 13.03.2003..
The complainant unable to obtain loan from any sources, informed the authorities to cancel the allotment, requesting to refund the amount paid namely Rs.15,000/-, for which, there was no response, except information that the allotment was canceled despite repeated requests, the opposite parties failed to refund the amount collected, which is deficiency in service and therefore, they should be directed to pay the said amount, with interest thereon at 24% per annum, in addition to, compensation of Rs.50,000/-.
3. The opposite parties admitting the payment by the complainant and the cancellation of the allotment order also, opposed the claim, that as per the Board Circular and decision, the person who refused to take the allotment is liable to pay interest, which was calculated at Rs.15,391/- that adjusting the amount already paid, the complainant alone has to pay a sum of Rs.391/- and therefore, the non-payment of the refund, will not come within the deficiency of service, thereby, prayed for the dismissal of the complaint.
4. The District Consumer Forum considering the conduct of the opposite parties as well the fact that they have not supplied the required documents, has come to the conclusion, that the non-payment or refund of Rs.15,000/- should be construed as deficiency in service. In this view, a direction has been issued not only to pay the amount paid by the complainant namely Rs.15,000/-, but also a sum of Rs.10,000/- as compensation, as per order dated 29.09.2005, which is called in question in this appeal.
5. The learned counsel for the appellant submitted, that as per the Resolution passed by the Board, if the allottee after the allotment order received and after the payment of advance amount, for some reasons voluntarily surrender or not accepting the allotment order, had caused any loss to the Board, they are liable to pay interest and on the basis of the said Circular alone, calculating interest, advance amount was adjusted, which cannot be termed as deficiency, which is opposed.
6. As evidenced by Ex.A1 and Ex.A2 in order to have an allotment of the house, the complainant had deposited a sum of Rs.15,000/- on 13.03.2003.
Though the complainant had chosen a flat that HIG-II-66, TUC, TNJ and registered in his name, actually house was not allotted, no allotment order also appears to have been issued. The complainant having registered the house for purchase, approached certain agencies, for loan facilities, unable to materialize the same, requested the Executive Engineer, and the Administrator under Ex.A3 on 20.5.2003 to cancel the registration/allotment and refund the amount paid by him. Conceding the request of the complainant under Ex.A3, the opposite parties had sent a letter dated 26.08.2003, canceling the allotment or registration of the house.
But, there is no mention of any kind about the deposit collected from the complainant, such as whether that is refundable or forfeited or something like that. Even thereafter the complainant attempted to realize the amount outside, failed and the result was approaching the Consumer Forum since, the Housing Board also comes within the ambit of the Consumer Protection Act.
7. On the side of the opposite parties, no document has been filed indicating what are the terms, and conditions of the Board,, in case the registration of the house or allotment of the house was cancelled, at the request of the allottee. In the absence of any such terms, and conditions, that too, to the knowledge of the allottee, we are of the considered opinion, that the opposite parties are not entitled to retain the same arbitrarily and they ought to have refund, when they cancelled the allotment under Ex.A5, and the failure should be construed as deficiency in service, as rightly recorded by the District Forum. Though the Resolution passed by the Housing Board has not been produced, it is extracted, in the Written Version. As seen from the Written Version, the opposite parties are entitled to claim interest, only in the case of surrender after allotment of the house and after deposit of the advance amount, which would be generally mentioned in the allotment order. In this case, no allotment order has been issued, and no such order also has been filed.
It is the repeated assertion of the complainant, that he has not received any allotment order.
Admittedly, except the initial payment of Rs.14,800/-, which cannot be taken as advance amount, admittedly the complainant has not paid any other amount. Ex.A2 also does not say that the payment of Rs.14,800/- represents the advance amount, so as to attract the penal resolution said to have been passed by the Board, dated 2.7.99. In the absence of the actual allotment, as well as the payment of initial deposit, the money paid for registration, in this case as evidenced by Ex.A3, is not entitled to be adjusted towards the alleged interest as if that was the loss occasioned to the Board. Either in the Written Version or in the affidavit, it is not explained, how the interest was calculated, what was the rate of interest. It is also not the case of the opposite parties, in the Written Version, that the terms and conditions including this Resolution were communicated to the complainant. Therefore, we are unable to say, that the complainant had agreed for those terms. Therefore, there is no binding liability, warranting the opposite parties, to enforce the same also, as form part of contract between the parties.
The District Forum properly understanding this case, as well as the considering the facts, that there is no mention about the claim of interest in Ex.A5, has come to the correct conclusion in ordering the refund of Rs.15,000/-, in which finding, we are unable to differ.
8. As far as grant of Rs.10,000/- as compensation, we find no reason to confirm the same. In this case, voluntarily the complainant had chosen the house, paid the amount, and on his own, at his request, allotment cancelled. The non-refund of the amount as per the understanding of the Resolution passed by the opposite parties, may be justifiable and for that awarding a compensation of Rs.10,000/-, in our view, is not desirable and warranted. Hence, we are inclined to set aside the order, of the compensation alone.
9. In the result, the appeal is allowed in part, directing the opposite parties to pay a sum of Rs.15,000/- with cost of Rs.1,000/-, setting aside the order of the District Forum regarding compensation.
The amount should be deposited within three months from today, failing which, it shall carry interest at 9% per annum from the date of default, till the date of realization. No order as to cost in this appeal.
S. SAMBANDAM VASUGI RAMANAN M.THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX : YES / NO Ns/mtj/Housing Board/fm