State Consumer Disputes Redressal Commission
Smt. Pushpam W/O. T.S. Srinivasan 413, ... vs The Chairman Tamilnadu Housing Board ... on 28 November, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru J. JAYARAM, M.A.,M.L., MEMBER (JUDICIAL) F.A.NO.372/2009 (Against order in CC.NO.32/1998 on the file of the DCDRF, Chennai (South) DATED THIS THE 28th DAY OF NOVEMBER 2011 Smt. Pushpam W/o. T.S. Srinivasan 413, TNGB, Walajah Appellant/Complainant Vs. 1.
The Chairman Tamilnadu Housing Board Nandanam, Chennai- 600 035
2. Administrative Officer Vellore Housing Unit 7th Road, Bharati Nagar, Phase-I, Sthuvacheri Vellore- 632 009 Respondents/ Opposite parties The appellant as complainants filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to relay the ceiling, give alternative accommodation, to pay Rs.50000/- towards the expenditure incurred, alongwith compensation of RS.3 lakhs, to reduce the cost and refund Rs.1 lakh, to register the sale deed and handover the same, and to pay RS.5000 as cost. The District Forum allowed the complaint, granted compensation, but no order was passed regarding execution of sale deed.
Against the said order, this appeal is preferred praying to modify, and issue suitable direction to the opposite parties, against the order of the District Forum dt.17.8.2009 in CC.No.32/1998.
This petition coming before us for hearing finally on 02.11.2011. Upon hearing the arguments of the counsels on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
Counsel for the Appellant/ 1st Opposite party : M/s. R. Aravindan Counsel for the 1st Respondent/Complainant : M/s. Madhavagovindan 2nd Respondent/ 2nd opposite party:
served absent M. THANIKACHALAM J, PRESIDENT
1. The complainant, who succeeded partially, before the District Forum, has come to this commission by way of appeal, to have the full relief for execution of the sale deed.
2. The complainant / appellant was allotted HIG house No.413, by the 2nd opposite party, fixing the tentative cost, and accordingly possession was also handed over. Even at the time of taking possession, the house was an old one, and it had many repairs, such as cracks, pealing of paints, falling of plasters, damage to the doors, in view of the fact, substandard materials were used. Despite the request by the complainant, demanding repair of the building, till today opposite parties have not carried out the repairs, thereby compelling, the complainant to incur an expenses of RS.50000/- for carrying out the repair. The opposite parties insisted land escalation cost of Rs.79000/-, which they are not entitled. The complainant has paid a total cost of Rs.3,63,000/- as originally fixed, and therefore as such the opposite parties cannot demand any escalated cost, claiming so, not repairing the building, committed deficiency, and therefore the complainant is constrained to file the case for several reliefs, including compensation for mental agony, as well as seeking direction to register the sale deed.
3. The opposite parties, questioning the jurisdiction of the consumer forum, resisted the case interalia contending, that the pricing policy of the house and land cannot be a consumer dispute, that as per the allotment order, the building was handed over to the allottee, in good condition and she has also taken taken possession, without any murmur, that in order to avoid the revised cost, with ulterior motive, the complaint came to be filed, that without the payment, the complainant is not entitled to get the sale deed, and that since they have not committed any deficiency in service, no question of paying compensation or granting any relief, thereby praying for the dismissal of the complaint.
4. The District Forum, based upon the commissioners report, came to the conclusion, that the building was not handed over to the complainant, in good condition, whereas it require repairs, since not carried out, that should be construed as deficiency in service. It has also come to the further conclusion, that the complainant is entitled to a sum of RS.50000/- as compensation for mental agony. However, the District Forum recorded, no argument was advanced, regarding the execution of the sale deed. Therefore, recording in respect of registration of sale deed, as there was no argument advanced by both the counsels, we are not in a position to grant relief in this regard, directions were issued only for repair, and compensation, as per the order dt.17.8.2009, which is questioned by the complainant for not ordering the execution of sale deed.
5. It is the common case of the parties, that the complainant was allotted a house in the Vellore Housing Unit, HIG house, bearing No.413, as per the allotment letter Ex.A1 and A2. The tentative cost fixed under Ex.A2 was Rs.3,63,400/- as on 27.11.95. Out of this amount, the complainant was directed to pay a sum of Rs.170800/-, as initial deposit, permitting the allottee, to pay the balance on Hire Purchase Agreement, for which a document was also executed. But subsequently, as evidenced by Ex.A8, even in the month of April 1997, the tentative cost of the house viz. Rs.363400/- was paid in full. Therefore there is no question of paying the EMI or instalment, as the case may be, which is also admitted in Ex.A10, that the complainant has paid the tentative cost in full. When he informed, in the building, there were repairs, that should be carried out the repairs, in Ex.A10, it is admitted you have done the repair works, without getting permission from the housing board, thereby in a way admitting that the house allotted to the complainant must have been in a bad shape, warranting unavoidable repairs. The complainant as per the estimate (Ex.A18), though repaired or carried out, or rectified the defects, unable to realize the amount, approached the various authorities, and the result was not positive. Further the opposite parties, appears to have demanded escalation cost of Rs.79000/-. Thus aggrieved by the conduct of the opposite parties, a consumer complaint was filed, in the year 1998, seeking several reliefs, and one of the relief is to register the sale deed, and handover the same to the complainant.
6. On contest, originally, the case was dismissed by the District Forum on 21.10.1998, probably concluding that the complainant had not paid the increased cost, and therefore he is not entitled to the execution of the sale deed, the further fact being, there was no deficiency, which order was challenged before this commission in AP.No.862/1998. This, commission felt, that in order to ascertain the actual damage or repair, due to the deficiency committed by the opposite parties, a commissioner should visit and prepare a report. Therefore, the appeal was allowed, order of the District Forum as set aside, remanding the case to the District Forum for fresh disposal, giving liberty to both the parties, to produce evidence, as well as to take steps for the appointment of commissioner.
7. As per the remand order, commissioner was appointed, case was taken for trial, and finally on 17.8.2009, an order came to be passed, which reads In the result, the complaint is allowed. The opposite parties are jointly and severally directed to carryout the repairs pointed out the Advocate / Commissioner report within three months from the date of receipt of copy of this order and to pay RS.50000/- as compensation for mental agony and costs of RS.5000/- within three months from the date of receipt of copy of this order, failing which the amount shall carry interest at the rate of 9% per annum till the date of payment. In respect of registration of sale deed, as there was no argument advanced by both the counsels, we are not in a position to grant any relief in this regard. The above order would indicate that there is an adverse award against the opposite party also, since the judgment further says, the opposite parties have committed deficiency in service. If really the opposite parties have felt, that the order of the District Forum is erroneous, not meritorious, they should have questioned/challenged the same, before this commission by way of appeal, which they failed to do so. Therefore, as contemplated under Sec.24 of the Consumer Protection Act, the finding of the District Forum has reached the finality.
Therefore, in this case, we are not very much concerned about the finding against the opposite parties, regarding deficiency, as well as the directions issued by the District Forum, based upon the commissioner report, issued direction, to carryout the repair, as pointed out by the advocate commissioner (Ex.C1). The only question now, we are called upon to decide in this appeal is whether the complainant is entitled to a sale deed, executed and register by the opposite party.
8. In the appeal memorandum as well in the written argument, filed on behalf of the appellant also, the only grievance of the appellant is, that in respect of the registration of the sale deed, the District Forum committed an error, since the non-execution of the sale deed itself amounts to deficiency of service, thereby seeking direction to the opposite party, to execute the sale deed and register the same. The learned counsel for the opposite party would contend, that the complainant has not paid the final cost, and therefore such a person is not entitled to seek a direction to execute the sale deed. In the written version, as well as in the complaint, though we find some averments regarding the finalization of the cost, demanding a further sum of Rs.79000/-, from the complainant, we have no particulars, regarding the same. The opposite party also failed to produce the demand, explaining how that escalation cost or final cost was arrived.
Further, the cost of the building or the land, may not be the matter of consumer dispute, and therefore, we refrain, from giving any finding regarding the final cost, and we feel if a direction has been issued to execute the sale deed, reserving the right for demanding the final cost, and the final cost will be decided at that time.
9. As per the allotment order, initial deposits were made and admittedly tentative cost also paid in the year 1997 itself. A person who paid the initial cost, and who had spent the amount to carryout the repairs, which was not rectified by the service provider, in our considered opinion, entitled to get a sale deed also, subject to condition, that the complainant should pay the final cost on demand, giving particulars, for which there cannot be any objection. Admittedly, final cost demanded by the complainant was not paid, though tentative cost paid. The very fact, tentative cost paid in full will denote, there is a final cost, and fixing the final cost, rest upon the opposite party, not upon the complainant, or the commission as the case may be. Considering the long pending battle between the parties, instead of directing the parties to workout their remedy, separately, we are inclined to issue a direction in this appeal itself, to execute the sale deed, reserve the right to claim final cost in the sale deed itself. The complainant having filed the case in the year 1998, certainly would have urged for the execution of the sale deed and originally the complaint was dismissed on the ground of non-payment of entire cost. Therefore, by dragging the matter also, the complainant cannot escape from his legal liability, to pay the final cost, which will be decided by the opposite parties, on submitting the details also, to the opposite party. For these reasons, we are inclined to modify the order of the District Forum, issuing direction, to execute the sale deed, subject to condition the payment of final cost, as per the rules and regulations of the Board by demand.
10. In the result, the appeal is allowed, modifying the order of the District Forum in CC.No.32/1998 dt.17.8.2009, directing the opposite parties to execute the sale deed in respect of the subject matter of the allotment order, on condition that the complainant shall pay the final cost, for that the opposite party is directed to serve notice, giving details regarding the final cost, within two months from this date, and on such payment by the complainant, or reserving the right to enforce the final cost, the opposite party is directed to execute the sale deed in favour of the complainant, as per the allotment order dt.27.11.1995 (Ex.A2) as per the rules of the Board. There will be no order as to cost in this appeal. Appeal allowed accordingly.
J. JAYARAM M. THANIKACHALAM JUDICIALMEMBER I PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/TNHB