State Consumer Disputes Redressal Commission
Shri Bhaskar Ch. Mohapatra, I.F.S., Son ... vs 1. Secreary, Bhubaneswar Development ... on 17 May, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION: ORISSA: CUTTACK C.D. APPEAL NO.833 OF 2004 From an order dated 21.09.2004 passed by the District Consumer Disputes Redressal Forum, Khurda at Bhubaneswar in C.D. Case No.191 of 2001. ---------- Shri Bhaskar Ch. Mohapatra, I.F.S., Son of Shri Bhagirathi Mohapatra, Allottee of Qr. No. SCR-18, Chandrasekharpur Phase-I, Bhubaneswar Appellant -Versus- 1. Secreary, Bhubaneswar Development Authority, At/P.O. Bhubaneswar, Dist. Khurda 2. Vice-Chairman, Bhubaneswar Development authority, At/P.O. Bhubaneswar, Dist. Khurda Respondents For the Appellant : Mr.S.K. Pattnaik & Associates For the respondents : Mr. S. Mohanty P R E S E N T : THE HONBLE SHRI JUSTICE A.K. SAMANTARAY, PRESIDENT, AND SHRIMATI SMARITA MOHANTY, MEMBER O R D E R
DATE:- The 17 May, 2010.
Justice A.K. Samantaray, President.
This appeal is by the unsuccessful complainant challenging the judgment and order dated 21.09.2004 passed by the learned District Forum, Khurda at Bhubaneswar in C.D. Case No.191 of 2001.
2. The complainant, who is the appellant before us, had filed the aforesaid consumer complaint alleging that he had applied for a shop-cum-residence unit under Chandrasekharpur Phase-I Scheme by depositing a sum of Rs.20,000/- on 16.10.1988 and was assigned Registration No. SR-26. On receipt of the said amount of Rs.20,000/- and the application form from the complainant, the respondents-opposite parties-Bhubaneswar Development Authority provisionally allotted a shop-cum-residence in his favour vide letter dated 18.02.1989. In the said letter, opposite party no.1 had indicated that the outright purchase cost of the shop-cum-residence was Rs.2,04,000/-, which was to be paid before execution of the sale deed. But in case the applicant wanted to purchase the said unit on instalment basis, he was to pay Rs.;61,200/- as down payment and the balance amount of Rs.2,51,616/- in 32 equal quarterly instalments at the rate of Rs.7,863/-. The present complainant-appellant being a Government officer applied for a House Building Advance from the State Government. As the Government was then providing advance only for residential portions, he requested opposite party no.1 through his letter dated 16.02.1990 to indicate the price of the residential portion and that of the shop portion separately. The price of the residential portion as well as the shop portion was supplied by the Bhubaneswar Development Authority as Rs.1,68,500/- and Rs.35,500/- respectively. Thereafter, final allotment order of SCR-18 was made in favour of the complainant on 25.08.1990. He cleared up the outright purchase amount in respect of the residential portion, which was Rs.1,68,500/-. The entire amount of Rs.2,04,000/- was paid by the complainant by 01.06.1992. The aforesaid amount of Rs.1,68,000/- was paid after getting the House Building Advance. On 01.06.1992 the complainant paid a sum of Rs.35,500/- through challan towards the cost of the shop portion basing on outright purchase rate. On 21.09.1991, the complainant had written a letter to opposite party no.1, i.e., the Secretary, Bhubaneswar Development Authority, requesting him for execution of sale deed as per Annexure-7. He had obtained the House Building Advance from the Finance Department on the basis of the letter of opposite party no.1 indicating the outright purchase amount, and loan mortgage agreement was executed with the State Government on the said basis. On 26.09.1992, the complainant issued reminder to opposite party no.1 requesting him for execution of the sale deed in order to mortgage the sale property to the Government towards the House Building Advance. It is stated by the complainant that possession of the house had been handed over to him on 18.01.1991 and the entire amount of the residential portion of the unit had been cleared up by him by making payment to the opposite parties on 03.09.1991. It is allege that even after clearing up the entire amount towards the residential as well as shop portion, the opposite parties did not execute the sale deed. According to the complainant, this amounts to deficiency in service on their part. It is stated in the complaint that on 13.07.2000, the opposite parties, through their letter as per Annexure-9, asked the complainant to pay a sum of Rs.1,69,573/-, and this letter, according to the complainant, is nothing but deficiency in service on the part of the opposite parties. After getting the said letter demanding Rs.1,69,573, the complainant issued lawyers notice, but to no effect. His prayer made in the complaint is for issue of direction to the opposite parties to execute the sale deed in his favour in respect of the residence-cum-shop unit, over which he is already in possession since 1991.
3. The opposite parties appeared and filed written version. According to them, this complainant, basing on his application, was provisionally allotted a shop-cum-residence under Chandrasekharpur Phase-I Scheme. They had intimated this fact to the complainant vide their letter dated 18.02.1989. In the said letter, they had also indicated that the outright purchase cost of the shop-cum-residence was Rs.2,04,000/-. It is their further case, as we find from the written version, that under the instalment scheme, an applicant for shop-cum-residence was to pay Rs.61,200/- and the balance of Rs.2,56,616/- in 32 equal quarterly instalments at the rate of Rs.7,853/-, if paid in due time, failing which the allottee was required to pay interest as fixed under the Scheme. This being the fact, when the complainant did not pay the entire amount of Rs.2,04,000/- at a time under the outright purchase category, he was taken to be a purchased under the instalment scheme. It is also stated in the written version that this is almost admitted by the complainant himself inasmuch as he had indicated in his complaint petition the dates of payment, which would go to that he was not an outright purchaser and he made payment in instalments. The fact of payment within 30 days as per letter dated 18.02.1989 has been referred to and it has been stated that had the complainant made payment within the stipulated time, i.e., by 17.03.1989, the opposite parties would have no grievance in the matter and they would have executed the sale deed accepting the complainant as an outright purchaser. It is further stated that the complainant was asked by the opposite parties in their letter dated 13.07.2000 to deposit the balance amount or Rs.1,69,573/- as he was a purchaser under instalment scheme.
4. Although the learned District Forum has made elaborate discussion and mostly repetition of the factual aspects in the impugned judgment, it has perhaps not gone to the crux of the matter as to under what circumstances the complainant could not pay the amount within 30 days from the receipt of the letter dated 18.02.1989 issued by the opposite parties. In the said letter dated 18.02.1989 issued by the Secretary, Bhubaneswar Development Authority, it has been inter alia stated as under:-
If you are interested to purchase the property, you may deposit the amount indicated above within 30 days from the date of issue of the letter in the State Bank of India, Main Branch, Bhubaneswar in favour of Bhubaneswar Development Authority in S.B. Account No. C-232 failing which it will be construed that you are not interested for the same and the offer of allotment shall stand automatically cancelled.
In the instant matter, admittedly the entire payment towards the shop-cum-residence unit was made by the complainant by 01.06.1992. Of course, on this date the outright purchase value of the shop portion was made and prior to that in 1988, 1990 and 1991 the cost of the residential portion had been made
5. We have heard Mr. S.K. Pattnaik, learned counsel appearing for the complainant-appellant and Mr. S. Mohanty appearing for the opposite parties-respondents-Bhubaneswar Development Authority. It was argued by Mr. Pattnaik, learned counsel for the appellant that nowhere in the letter dated 18.02.1989 it has been indicated by the opposite parties that if the amount was not paid within one month from the issue of the said letter and any amount is paid subsequent to that, if accepted, the benefit of outright purchase would not be made available to the applicant and he would be deemed to a purchaser under the instalment scheme. On our perusal of the said letter, the relevant portion of which we have already quoted above, we find that the ultimate result in case of non-payment in terms of the letter is cancellation of the allotment. As we find from the record and s we understand from the factual of the case, without cancelling the allotment in favour of the complainant, different amounts have been accepted towards the outright purchase cost and possession of the shop-cum-residence has been handed over to the complainant on 18.01.1991. After accepting the cost of the shop-cum-residence unit of the complainant in June, 1992, the opposite parties sat tight and did not even intimate the complainant that the amounts paid by him for the shop-cum-residence have been treated to be payments on instalment basis and any interest would be levied on it since he had not made payment within one month from the issue of the letter dated 18.02.1989. This callous attitude of the Bhubaneswar Development Authority in dealing with the complainant, sitting for 7-8 years and writing letter to him only after he wrote for registration of the unit in his name proves the deficiency on their part. Imposing interest on the amount already paid and treating the payments to have been made under instalment scheme is also another instance of deficiency in service.
6. In any view of the matter, we cannot agree with the learned District Forum, which has held that the complainant-appellant has to be taken to be a purchaser under instalment scheme and so is liable to make payment of Rs.1,69,573/- to the opposite parties-respondents to get the sale deed executed in his favour. In the afore-noted facts and circumstances and in view of the fact that we find deficiency on the part of the opposite parties in dealing with the matter of the complainant, we direct the opposite parties to compute/calculate interest in respect of the amounts already paid subsequent to 18.03.1989 till 01.06.1992, when the last of such payments was made, at the rate at which the other allottees are charged. We direct the complainant-appellant to contact the opposite parties and assist them in the matter of computation/ calculation of the interest as per our direction and make payment of the same. The opposite parties-respondents, specifically respondent no.1 is directed to get the sale deed in respect of the property executed in favour of the complainant-appellant within two weeks from the date of such payment by the complainant.
7. In the result, the appeal is allowed in part to the extent indicated above.
Records received from the District Forum may be sent back forthwith.
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(Justice A.K. Samantaray) President ........
(S. Mohanty) Member SCDRC Orissa, Cuttack May 2010/Nayak