State Consumer Disputes Redressal Commission
Ludhiana Improvement Trust, vs Ms Harpreet Kaur on 20 September, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1571 of 2009.
Date of Institution: 06.11.2009.
Date of Decision: 20.09.2012.
Ludhiana Improvement Trust, Feroze Gandhi Market, Ludhiana, through its
Chairman.
.....Appellant.
Versus
Ms Harpreet Kaur W/o Sh. Mandhir Singh, R/o H.No.22 GF, Rajguru Nagar,
Ferozepur Road, Ludhiana.
...Respondent.
First Appeal against the order dated
24.08.2009 of the District Consumer
Disputes Redressal Forum, Ludhiana.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
...................................
Present:- Sh. Jagtar Kureel, Advocate, proxy for Sh. D.P. Gupta, Advocate, counsel for the appellant.
Sh. Munish Goel, Advocate, counsel for the respondent.
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INDERJIT KAUSHIK, PRESIDING MEMBER:-
Ludhiana Improvement Trust, appellant (In short "the appellant") has filed this appeal against the order dated 24.08.2009 passed by the learned District Consumer Disputes Redressal Forum, Ludhiana (in short "the District Forum").
2. Facts in brief are that Smt. Harpreet Kaur, respondent/ complainant (hereinafter called as "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant, narrating that she applied for 'three bed room' HIG Flat under semi-finished and self financing scheme at Rajguru Nagar, Ludhiana and paid First Appeal No.1571 of 2009 2 earnest money of Rs.46,000/- on 30.09.1991. The appellant vide its letter/memo no.LIT/SB/1492 dated 28.02.1992, allotted 'three bed room' flat no.22, Ground Floor, subject to filing certain documents such as affidavit, proof of income and proof of deposit of earnest money. The appellant in the said allotment letter gave the cost of the Ground Floor as Rs.4.80 lacs along with the schedule of the remaining payment as under:-
Mode of Payment Amount Due date of Payment
a) Earnest Money Rs.46,000/- Already deposited
(vide receipt no.72732 dated
30.09.1991)
b) Balance of 1/4th Rs.74,000/- dt. 30 days
within 30 days from
the issue of
allotment letter.
c) First Installment Rs.72,000/- 27.09.1992.
d) Second Installment Rs.72,000/- 27.03.1993
e) Third Installment Rs.72,000/- 27.09.1993
f) Fourth Installment Rs.72,000/- 27.03.1994
g) Fifth Installment Rs.72,000/- 27.09.1994
3. In Para-6 of the allotment letter, the appellant proposed the interest on the due amount if the respondent failed to pay the above installments on due date upto four months and vide letter dated 03.02.1994, claimed Rs.90,000/- more against the cost of the flat for Rs.4.80 lacs on account providing standard material and extra benefits on the basis of technical view of the architect. The respondent paid Rs.5.70 lacs.
4. The respondent preferred finance due to heavy installment and wrote a letter dated 31.05.1994 for signing Tripartite Agreement with LIC as well as to give the consent and NOC and the appellant received the said letter vide receipt no.5256 dated 31.05.1994. The appellant in reply to the letter, gave consent for execution of Tripartite Agreement and disclosed the dues pending as Rs.3,06,000/- vide letter dated 15.06.1994 addressed to LIC. First Appeal No.1571 of 2009 3
5. The respondent vide her letter dated 17.08.1994, informed the appellant that LIC has offered loan of Rs.2.50 lacs against her application dated 09.08.1994. The respondent requested the appellant to accept the balance payment and signing of Tripartite Agreement and thereafter, Tripartite Agreement dated 19.08.1994 was executed between the parties. i.e. the respondent, LIC and appellant. The sale agreement was accepted by the appellant vide its order dated 04.10.1994 and the appellant executed the sale agreement dated 05.10.1994 with the respondent after receiving full and final consideration of Rs.5.70 lacs and after receiving the entire consideration and execution of sale agreement, the appellant handed over the physical possession of the 22-GF (HIG) flat on 'as is where is basis' to the respondent, subject to providing basic amenities.
6. The respondent applied for No Due Certificate vide letter dated 16.07.2008 and in response to that, the appellant claimed Rs.9,80,989/- vide letter dated 30.10.2008 on the grounds of due amount of installment as well as enhancement dues. The appellant has no right to claim this illegal amount after execution of sale agreement, handing over of physical possession and execution of Tripartite Agreement and this amounts to unfair trade practice and deficiency in service.
7. In the allotment letter, there was no clause, authorizing the appellant to claim interest at a particular rate on the payment of due installments/amount, if the allottee failed to pay installments on due dates upto four months, as well as interest @ 12% on the outstanding installment after the date of possession of the flat. Such condition of allotment was stated to be subject to the provisions of Punjab Town Improvement Act, 1923 and Punjab Town Improvement (Utilization of Land and Allotment of Flat) Rules, 1993, but in the sale agreement, there is provision of only 12% which was also not applicable, because the possession was delivered as nothing was due.
First Appeal No.1571 of 2009 4
8. It was prayed that the appellant be directed to pay Rs.2.00 lacs as compensation for harassment and mental agony and illegal demand of Rs.9,80,989/- be quashed and the appellant be directed to issue No Due Certificate, with costs of litigation to the tune of Rs.25,000/-.
9. In the reply filed on behalf of the appellant, preliminary objections were taken that there is no deficiency in service on the part of the appellant and the complaint is not maintainable. The respondent is estopped by her own act and conduct to file the present complaint. The respondent failed to comply with the terms and conditions of the allotment letter and has also failed to make the payment of the due installments as per the payment schedule and the respondent is still liable to pay the demanded amount along with future interest. The respondent was liable to pay the enhanced amount and the complaint deserves dismissal.
10. On merits, in reply to Paras-1 to 10, it was admitted being matter of record. It was denied that the sale agreement was executed after receiving the full and final consideration. It was also denied that the amount of Rs.5.7 lacs was full and final amount. The amount in question has been rightly demanded from the respondent as per the terms and conditions of the allotment. Similar other pleas as taken in preliminary objections were repeated and denying other allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
11. Parties led evidence in support of their respective contentions by way of affidavits and documents.
12. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that vide letter dated 15.06.1994 Ex.C-11, the appellant conveyed to LIC that only Rs.3,06,000/- were due against the flat and gave permission to mortgage the same and the said amount was paid vide receipt Ex.C-9 to the appellant. Thereafter, the sale agreement was executed by the appellant and she was put in possession of the allotted flat. Had the appellant First Appeal No.1571 of 2009 5 insisted to implement Clause No.6 of the allotment letter Ex.C-1 pertaining to payment of interest in case of delayed payment of installment, then the amount claimed as due to the tune of Rs.3,06,000/- could have increased substantially as the appellant could have calculated interest as per allotment letter on account of delayed payment of installments by the respondent, but it was not done which shows that the appellant waived off the interest. Now, by their conduct they would be estopped from claiming interest from the respondent. The appellant showed a sum of Rs.3,06,000/- due from the respondent which she paid. Now, they cannot change and shift their stand to claim that the respondent is entitled to pay interest on delayed payment of installments and the amount demanded vide impugned letter is not legally payable by her. The complaint was allowed and the demand of Rs.9,80,989/- raised by the appellant vide letter Ex.C-14 was held arbitrary and illegal and was set aside and the appellant was directed to issue No Dues Certificate. Rs.2,000/- were awarded as litigation costs.
13. Aggrieved by the impugned order dated 24.08.2009, the appellant has come up in appeal.
14. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties.
15. It was contended on behalf of the appellant that after issuance of letter Ex.C-11 to LIC, the appellant can demand the amount of interest and the respondent is bound to pay the same as per Clause-6 of the allotment letter Ex.C-1. The District Forum has failed to appreciate that the amount being claimed included the enhancement and the interest and penal interest and these amounts were never waived off by the appellant. Rs.5.7 lacs were not received towards full and final consideration and it was not mentioned so in the sale agreement. It was contended that the order passed by the District Forum is wrong and illegal and the appeal may be accepted and the impugned order may be set aside.
First Appeal No.1571 of 2009 6
16. On behalf of the respondent, it was argued that the appellant vide letter dated 03.02.1994 Ex.C-2 demanded the additional amount of Rs.5.70 lacs and the respondent paid the said amount and as per Clause-3 of the agreement for sale Ex.C-4, the receipt of Rs.5.70 lacs is admitted. In Clause-3, it was mentioned that the possession of the flat shall be delivered by the Trust to the intended allottee/vendee on 'as is where is basis', if the latter has paid all dues except difference of final reserve cost from the tentative cost and executed all documents. The agreement was executed on 05.10.1994. It was further contended that before making the payment, the respondent applied for loan from LIC and demanded Tripartite Agreement and the Executive Officer of the appellant vide letter dated 15.06.1994 wrote to the Deputy Area Manager, LIC that they are ready to execute Tripartite Agreement and Rs.3,06,000/- are pending against the above flat, and gave permission to mortgage the above flat as per Tripartite Agreement and the said amount was paid through loan of Rs.2.50 lacs and Rs.56,000/-. It was contended that after 1994, nothing was demanded from the respondent and when the respondent in the year 2008 applied for No Due Certificate, then suddenly the demand in question was raised which is illegal and arbitrary and the respondent is not liable to pay the same. The order of the District Forum is legal and valid and there is no ground to interfere with the same and prayed that the appeal may be dismissed.
17. We have considered the respective submissions made by the learned counsel for the parties and have minutely scrutinized the entire record and material placed on the file.
18. Admittedly, the respondent applied for a 'three bed room' HIG Flat under semi-finished and self financing scheme at Rajguru Nagar, Ludhiana way back on 30.09.1991 and paid Rs.46,000/- as earnest money and she was allotted 'three bed room' flat no.22, Ground Floor vide allotment letter dated 28.02.1992 issued by the appellant. Initial cost of the said flat was Rs.4.80 lacs and later on, the appellant vide letter dated 03.02.1994 claimed First Appeal No.1571 of 2009 7 Rs.90,000/- more against the cost of the flat of Rs.4.80 lacs on account of providing standard material and extra benefits and this way, the total cost of the said flat came to be Rs.5.70 lacs and the respondent paid the same vide installments. The appellant vide letter dated 03.02.1994, mentioned about the previous cost, present cost and the increase and the total cost was Rs.5.70 lacs. The respondent wanted to take loan and applied for Tripartite Agreement and Tripartite Agreement Ex.C-3 was executed. The appellant wrote a letter Ex.C-11 to the Life Insurance Corporation from whom the loan was to be taken and conveyed that a sum of Rs.3,06,000/- only is due against the flat in question and also granted permission to mortgage the said flat as per Tripartite Agreement. The respondent deposited Rs.3,06,000/- on 14.09.1994 vide receipt Ex.C-9 and this way, made the entire payment due as per the appellant.
19. Thereafter, neither the appellant demanded any amount, nor the respondent had any correspondence with the appellant, but when the respondent applied for No Due Certificate, then the appellant vide letter dated 30.10.2008 Ex.C-14 claimed a sum of Rs.9,80,989/- due. Strangely enough, when the entire amount as per the appellant's own admission has been deposited way back in the year 1994 and admittedly thereafter, there was no demand or the notice issued by the appellant to make any remaining payment, then suddenly the demand of such a huge amount after about 14 years seems to be an act of high handedness and height of the red-tapism and the demand was raised without any application of mind. The District Forum has rightly quashed the said illegal and frivolous demand and has passed a detailed and speaking order and there is no ground to interfere with the same.
20. In view of above discussion, the appeal filed by the appellant is false and frivolous and the same is dismissed with special costs of Rs.10,000/- (Rupees Ten Thousand) and the impugned order under appeal dated 24.08.2009 passed by the District Forum is affirmed and upheld. First Appeal No.1571 of 2009 8
21. The appellant had deposited an amount of Rs.1,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent/ complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
22. Remaining amount as per the order of the District Forum along with costs imposed vide this order shall be paid by the appellant to the respondent/complainant within 45 days of the receipt of copy of the order.
23. The arguments in this appeal were heard on 11.09.2012 and the order was reserved. Now the order be communicated to the parties.
24. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member September 20, 2012.
(Gurmeet S)