National Consumer Disputes Redressal
Himachal Pradesh Housing And Urban ... vs Sansar Chand Awasthi on 12 October, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI Revision Petition No. 3422 of 2006 (from the order dated 24.08.2006 in Appeal No. 151 of 2004 of the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla) Himachal Pradesh Housing and Urban Development Authority Through its Chief Executive Officer-cum-Secretary Nigam Vihar Shimla - 2 ........ Petitioner Vs. Sansar Chand Awasthi S/o Shri Jagdamba Prasad R/o Flat No. 554, Block No. 24 Sector 3, Phase II New Shimla, District Shimla Himachal Pradesh ..... Respondents BEFORE: HONBLE MR. JUSTICE ASHOK BHAN PRESIDENT HONBLE MRS VINEETA RAI MEMBER For the Petitioner Mr Y Prabhakar Rao, Advocate For the Respondent IN PERSON Pronounced on 12/10/ 2010 ORDER
PER VINEETA RAI, MEMBER The present revision petition has been filed by the Himachal Pradesh Housing and Urban Development Authority (hereinafter referred to as Petitioner) against the order dated 24.08.2006 passed by the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (in short the State Commission), which rejected the Petitioners appeal in favour of one Sansar Chand Awasthi (hereinafter referred to as Respondent) in this case.
The brief facts leading to the filing of the complaint was that the Respondent who was the original complainant before the District Forum had been allotted a Type B, Flat No. 554 by the Petitioner under their 8th Partially Self Financing Scheme at an estimated cost of Rs.5,76,463/-. The complainant/ Respondent made the following allegations against the Petitioner in respect of the allotment of the flat:
1.
The flat was not habitable when allotted and he therefore had to defer taking actual physical possession. Even after occupation water supply was defective;
2. The advertised plinth area of the flat offered was 59.77 sq meters, but it was actually 47.34 sq meters, entitling the Respondent for proportionate deduction of cost;
3. Petitioner was entitled to 10% rebate as per the scheme if the balance amount was paid in lump sum. However, despite his having paid an amount of Rs.3,09,600/- in lump sum, he was not given the rebate.
Since, Respondent did not get the required relief from the Petitioner he filed a complaint before the District Forum seeking the following reliefs:
(i) That the Respondent be granted 10% rebate on the total cost;
(ii) That the Petitioner may be directed to charge only for the plinth 47.34 sq meters and to refund the over charged amounts;
(iii) To rectify the defective water supply;
(iv) To direct the Petitioner to pay Rs.1 lakh as compensation for the mental agony caused to him.
The Petitioner Housing Board has denied all these allegations and have stated that as per the terms and conditions of the Scheme, the flat was to be handed over on as is where is basis and the Petitioner would not entertain any complaint regarding the property thereafter. In the instant case, the Respondent satisfied himself regarding the condition of the said Type B flat allotted to him and only thereafter took possession of the flat on 03.04.1998 without any protest. The Petitioner also denied that the plinth area was less than 59.77 sq meters. According to them, the flat was re-measured in the presence of the complainant and he was also sent a detailed reply in respect of his complaint. Regarding the rebate of 10% sought on payment of lump sum, the Petitioner duly intimated the Respondent vide letters dated 04.06.1998, 03.09.1999 and 01.04.1999 that since the Respondent had not made payment in lump sum of the balance amount of Rs.4,85,763/- he was not entitled to the said rebate.
The District Forum after hearing both the parties accepted the complaint on the following grounds:
(i) Local Commissioner appointed by the District Forum carried out the measurement of the flat allotted to the complainant in the presence of both the parties and found that the plinth area of the flat was not 59.77 sq meters and was deficient by about 4.91 sq meters;
(ii) The District Forum believed the Respondent/ complainants version that the flat was not habitable at the time of allotment, by placing reliance on a letter the Respondent had written to the Petitioner on 27.12.1997 pointing out the specific short comings.;
(iii) Regarding the complainants entitlement of rebate of 10%, the District Forum ruled that since the complainant had paid the balance amount of Rs.3,09,600/- in lump-sum, he was entitled to a rebate of 10% i.e. Rs.33,900/- and this fact had not been controverted by the Petitioner by way of evidence.
The District Forum directed the Petitioner to refund the price charged by it for 4.91 sq meters and pay a consolidated sum of Rs.1500/- for the deficiency in the flat at the time of handing over the possession to the Respondent. Rs.1000/- was awarded as cost for litigation.
Aggrieved by this order, Petitioner filed an appeal before the State Commission. The State Commission upheld the order of the District Forum in favour of the Respondent. In respect of the rebate of 10%, the State Commission observed as follows:
After having given our thoughtful consideration to the amount in question and keeping in view the fact that the Respondent had paid Rs.90,700/- before possession and another sum of Rs.1,81,200/- i.e. total Rs.2,71,900/-. In addition to this, after being put in possession on 03.04.1998, he paid further sum of Rs.1,00,000/- and the balance amount was payable in 120 monthly installments alongwith interest. As such, the rebate allowed by the District Forum below in favour of the Respondent against the appellant calls for no interference in this appeal and the submissions of Shri Goel to the contrary is hereby rejected.
Aggrieved by this decision, the Petitioner has filed this present revision petition. When this matter came up in revision before this Commission, Commission issued a notice to the parties limited to whether the Respondent is entitled to 10% rebate.
Learned Counsel for the Petitioner and the Respondent in person made oral submissions.
Learned Counsel for the Petitioner stated that vide its letter dated 12.11.1997 to the Respondent, it had been made very clear to him that the schedule of payment vis--vis the balance amount on which the Respondent allottee can claim 10% rebate in case of lump sum payment, is as under:
Cost and mode of payment
(i) Total consideration (Tentative) Rs.5,76,463/-
(ii) Any other amount due Rs. --
Previous installments Rs. --
Interest Rs. -- Any other amount, if any Rs. -- (iii) Total (i) + (ii) Rs.5,76,463/-
(iv) Amount deposited till the date of Rs. 90,700/-
Issuance of this letter (earnest money/ Deposit/ installments) etc.,
(v) Balance cost amount payable Rs.4,85,763/-
(iii) & (iv) Payable as follows
(a) Amount to be deposited before Rs.2,08,398/-
possession 1,81,200+27,198 Projected money Balance amount payable in 120 monthly Rs.3,04,563/-
installments alongwith interest This letter also contained a note to the Respondent stating as follows:
In case you want to make payment of balance cost of Rs.4,85,763/- in lump sum as indicated in column-3 (v) above, the same may also be paid within 45 days of the issue of this letter. In case part payment of balance cost as shown in column 3 (v) is made the amount of subsequent monthly installments in each case will be worked out accordingly.
In the instant case, the Respondent did not pay the balance amount of Rs.4,85,763/- in lump sum (i.e., at one go). The Respondents schedule of payment as per his own admission was as follows:
1. Amount paid on18.10.1996 as (earnest- Rs. 90,700/-
money)
2. At the time of possession Rs.2,09,006/-
3. Amount paid on 08.05.1998 Rs.1,00,000/-
Total Rs.3,99,706/-
So far as the remaining balance amount is concerned, Respondent is still paying these in monthly installments alongwith interest. Therefore, Respondent is clearly not entitled to 10% rebate because the above three payments cannot be treated as a lump sum payment of the balance due. Both the learned fora below had erroneously concluded that the amounts paid earlier were lump sum and by totaling them, the Respondent was entitled to a rebate of 10% on Rs.3,99,706/-.
According to the Respondent, the Petitioner had never stated that lump sum balance amount would have to be paid in one lump sum. In fact the word one was wrongly and subsequently added by putting the Respondent at a loss.
The Respondent while agreeing that part of the payment was made by him in installments for which he did not claim any rebate, but for the payments amounting to Rs.3,99,706/- which he made in lump sum on three occasions (i.e. Rs.90,700/- before the possession, another sum of Rs.1,81,200/- and a further Rs.1.00 lakh after being put in possession) entitles him to a rebate of 10%. This fact was appreciated by both the learned fora below who directed the Petitioner to pay him the rebate. In fact, later on the Respondent came to know that in the case of an another allottee Smt Husana Feroz, the Petitioner allowed her 10% rebate not only on payments made by her on three separate occasions but on the total amount of the flat. Under these circumstances, adopting a different interpretation and treatment in respect of the Respondent was both discriminatory and unjustified. Therefore, the present revision petition deserves to be dismissed.
We have heard learned Counsel for the Petitioner as well as the Respondent in person and have carefully considered the evidence on record. The limited issue which is in decision before us is whether the Respondent paid a lump sum amount as envisaged in the 8th Partially Self Financing Scheme on which 10% rebate was admissible. As per the brochure of the scheme which is in evidence on file, the schedule of payment which could be availed of by the allottees is clearly spelt out. According to this scheme out of Rs.5,76,463/- (which is the total estimated cost of a Type B flat) an amount of Rs.90,700/- is to be paid as earnest money and the rest of the amount is to be treated as the balance which can be paid either in lump sum in which case the allottee will get 10% rebate OR as per a laid down schedule which stipulates payment at different times (for example at the time of taking possession of the flat etc.,) and/ thereafter in monthly installments. It is very clear that the Respondent did not pay the balance amount of Rs.4,85,763/- in lump sum as envisaged in the scheme and by his own admission he had paid only Rs.3,99,706/- on three separate occasions, which in any way cannot be treated as lump sum payment. Further, he also availed of the option of paying Rs.1,76,757/- in installments. Even if there was any initial doubt in the mind of the Respondent regarding the interpretation regarding the lump sum condition, this was clarified to him in detail by the Petitioner vide letter dated 12.11.1997 and therefore, there was no cause for any other interpretation by the Respondent. We therefore, see no ambiguity on what constitutes the balance payment on which 10% rebate was admissible as per the advertised scheme. The belated contention of the Respondent that the Petitioner had adopted a different practice in the case of another allottee does not help his case, because in the first place it was never led as evidence before the learned Fora below and secondly, since the Respondent had voluntarily joined the scheme he was bound to adhere to its terms and conditions.
In view of the above facts, we set aside the orders of the District Forum and the State Commission on this count, with no order as to cost.
Sd/-
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[ Ashok Bhan., J ] President Sd/-
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[ Vineeta Rai ] Member Satish