State Consumer Disputes Redressal Commission
Sh. Sanjay Gupta. & Anr. vs H.P. Housing & Urban Development ... on 18 September, 2019
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
(1) First Appeal No. : 149/2018
Date of Presentation: 21.03.2018
Order reserved on: 12.04.2019
Date of Order : 18.09.2019
-------------------------------------------------------------------------------------------
Himachal Pradesh Housing and Urban Development Authority
through its CEO -cum- Secretary Shimla H.P.
... Appellant/opposite party
Versus
1. Sanjay Gupta son of late Shri Mast Ram Gupta Resident of
Savitri Bhawan Sandal Chakkar Shimla H.P.
2. Mahima Gupta wife of Shri Sanjay Gupta resident of Savitri
Bhawan Sandal Chakkar Shimla H.P.
... Respondents/complainants
For Appellant : Mr. Arush Matlotia Advocate.
For Respondents : Mr. Sanjay Bhardwaj Advocate
-----------------------------------------------------------------------------------
(2) First Appeal No.: 173/2018
Date of Presentation: 21.05.2018
Order Reserved on : 12.04.2019
Date of Order : 18.09.2019
1. Sanjay Gupta son of late Shri Mast Ram Gupta Resident of
Savitri Bhawan Sandal Chakkar Shimla H.P.
2. Mahima Gupta wife of Shri Sanjay Gupta resident of Savitri
Bhawan Sandal Chakkar Shimla H.P.
.......... Appellants/complainants
Versus
Himachal Pradesh Housing and Urban Development Authority
through its CEO -cum- Secretary Shimla H.P.
..... Respondent/opposite party
...................................................................................................
Coram
Hon'ble Mr. P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes
1
Whether Reporters of the local papers may be allowed to see the order? yes
H.P Housing and Urban Development Authority Versus Sanjay Gupta & Anr.
F.A. No.149/2018
&
Sanjay Gupta & Anr. Versus H.P. Housing & Urban Development Authority
F.A. No.173/2018
------------------------------------------------------------------------------------------------------------------
For Appellants : Mr. Sanjay Bhardwaj Advocate.
For Respondent : Mr. Arush Matlotia Advocate.
.......................................................................................
JUSTICE P.S. RANA (R) PRESIDENT :
O R D E R :-
1. Appeal No.149/2018 & Appeal No.173/2018 filed against the same order passed by learned District Forum (Nomenclature changed to District Commission) in consumer complaint No.286/2012 titled Sanjay Gupta & Anr. Versus Himachal Pradesh Housing and Urban Development Authority. Both appeals are consolidated for disposal in order to avoid conflicting orders.
Brief facts of consumer complaint:
2. Shri Sanjay Gupta & Anr. filed consumer complaint under Consumer Protection Act pleaded therein that HIMUDA allotted Type-II plot No.B-27 to complainants in Housing Colony at Mandhala (Baddi) District Solan (H.P). It is pleaded that tentative cost of plot in question was Rs.1380000/-(Thirteen lac eighty thousand). It is pleaded that complainants paid earnest money to HIMUDA. It is pleaded that complainants paid tentative cost of plot in question to the tune of Rs.1380000/-(Thirteen lac eighty thousand). It is pleaded that thereafter opposite party vide letter dated l6.09.2011 assessed final cost of plot in question 2 H.P Housing and Urban Development Authority Versus Sanjay Gupta & Anr. F.A. No.149/2018
& Sanjay Gupta & Anr. Versus H.P. Housing & Urban Development Authority F.A. No.173/2018
------------------------------------------------------------------------------------------------------------------ to the tune of Rs.1655000/-(Sixteen lac fifty five thousand). It is pleaded that HIMUDA asked complainants to pay balance amount of Rs.275103/-(Two lac seventy five thousand one hundred three) within forty five days. It is further pleaded that HIMUDA claimed excessive costs to the tune of Rs.1655000/-(Sixteen lac fifty five thousand) in an illegal manner and committed deficiency in service. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party pleaded therein that earlier cost was tentative cost in nature as per agreement executed inter se parties. It is pleaded that as per agreement allottees were under legal obligation to pay final costs in lump sum before taking possession of plot in question. It is further pleaded that complainants have misrepresented the facts. It is pleaded that dispute relating to settlement of accounts is not a consumer dispute. It is further pleaded that complainants are not entitled for refund of escalation costs of plot in question in view of terms and conditions of allotment letter. It is further pleaded that HIMUDA did not commit any deficiency in service. Prayer for dismissal of complaint sought.
4. Complainants filed rejoinder and reasserted the allegations mentioned in consumer complaint. Learned 3 H.P Housing and Urban Development Authority Versus Sanjay Gupta & Anr. F.A. No.149/2018
& Sanjay Gupta & Anr. Versus H.P. Housing & Urban Development Authority F.A. No.173/2018
------------------------------------------------------------------------------------------------------------------ District Forum(Nomenclature changed to learned District Consumer Commission vide latest Consumer Protection Act 2019) partly allowed consumer complaint and ordered HIMUDA to pay interest @ 9% per annum on whole of amount deposited by complainants w.e.f. 11.11.2011 till 20.02.2012. Learned District Consumer Commission further ordered HIMUDA to pay compensation to complainants for mental harassment to the tune of Rs.10000/-(Ten thousand). In addition learned District Consumer Commission ordered opposite party to pay litigation costs to the tune of Rs.3000/- (Three thousand). Feeling aggrieved against order passed by learned District Forum (Nomenclature changed to District Consumer Commission vide latest Consumer Protection Act 2019) opposite party filed appeal No.149/2018 and complainants filed appeal No.173/2018 before H.P. State Commission.
5. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
6. Following points arise for determination in present appeals.
1. Whether appeal No.149/2018 titled H.P. Housing and Urban Development Authority Versus Sanjay Gupta & Anr. is liable to be accepted as mentioned in memorandum of grounds of appeal.
4 H.P Housing and Urban Development Authority Versus Sanjay Gupta & Anr. F.A. No.149/2018
& Sanjay Gupta & Anr. Versus H.P. Housing & Urban Development Authority F.A. No.173/2018
------------------------------------------------------------------------------------------------------------------
2. Whether appeal No.173/2018 titled Sanjay Gupta & Anr. Versus H.P. Housing & Urban Development Authority is liable to be accepted as mentioned in memorandum of grounds of appeal.
3. Final order.
Findings upon point No.1 with reasons relating to F.A. No.149/2018 :-___________________________________________
7. Sh. Sanjay Gupta complainant filed affidavit in evidence. There is recital in affidavit that plot in question was allotted to deponent in the tentative cost of Rs.1380000/- (Thirteen lac eighty thousand). There is recital in affidavit that final costs of plot in question was enhanced by HIMUDA to the tune of Rs.1655000/-(Sixteen lac fifty five thousand). There is recital in affidavit that possession of plot in question was not delivered to deponent within reasonable time by HIMUDA and HIMUDA committed deficiency in service. State Commission has carefully perused all annexures filed by complainants.
8. Learned Advocate appearing on behalf of HIMUDA namely Shri Swaran Sharma has given statement before learned District Consumer Commission on dated 19.03.2014 that version and documents filed alongwith version be treated as evidence of HIMUDA.
5
H.P Housing and Urban Development Authority Versus Sanjay Gupta & Anr. F.A. No.149/2018
& Sanjay Gupta & Anr. Versus H.P. Housing & Urban Development Authority F.A. No.173/2018
------------------------------------------------------------------------------------------------------------------
9. Submission of learned Advocate appearing on behalf of HIMUDA that order of learned District Forum (Nomenclature changed to District Consumer Commission vide latest Consumer Protection Act 2019) to the effect that HIMUDA would pay interest @ 9% per annum on whole of amount deposited by complainants w.e.f. 11.11.2011 to 20.02.2012 is contrary to laws and contrary to proved facts and on this ground appeal filed by HIMUDA be allowed is decided accordingly. It is proved on record that complainants have paid final costs on 11.11.2011 and possession was delivered by HIMUDA to complainants on 20.02.2012 after delay of more than three months. State Commission is of the opinion that after receipt of entire costs amount of plot in question HIMUDA was under legal obligation to deliver possession to allottee expeditiously.
10. State Commission is of the opinion that delay of three months is not reasonable delay for delivering of possession to allottee after receipt of entire consideration amount of plot in question. State Commission is of the opinion that order of learned District Forum (Nomenclature changed to District Consumer Commission vide latest Consumer Protection Act 2019) to the effect that HIMUDA would pay interest @ 9% on whole of the amount deposited by 6 H.P Housing and Urban Development Authority Versus Sanjay Gupta & Anr. F.A. No.149/2018
& Sanjay Gupta & Anr. Versus H.P. Housing & Urban Development Authority F.A. No.173/2018
------------------------------------------------------------------------------------------------------------------ complainants w.e.f. 11.11.2011 to 20.02.2012 does not warrant interference by State Commission.
11. Submission of learned Advocate appearing on behalf of HIMUDA that order of learned District Forum (Nomenclature changed to District Consumer Commission vide latest Consumer Protection Act 2019) that HIMUDA would pay compensation to complainants to the tune of Rs.10000/-(Ten thousand) for mental agony is contrary to laws and contrary to proved facts is decided accordingly. HIMUDA did not deliver possession of plot in question to complainants within reasonable time ever after receiving final costs of plot in question on dated 11.11.2011. State Commission is of the opinion that HIMUDA has committed delay of more than three months in delivering possession of plot in question to complainants. State Commission is of the opinion that complainants sustained mental agony and it is not expedient in the ends of justice and on the principles of natural justice to interfere in order of learned District Forum (Nomenclature changed to District Consumer Commission vide latest Consumer Protection Act 2019) relating to compensation amount for mental agony.
12. Submission of learned Advocate appearing on behalf of HIMUDA that learned District Forum (Nomenclature changed to District Consumer Commission vide latest 7 H.P Housing and Urban Development Authority Versus Sanjay Gupta & Anr. F.A. No.149/2018
& Sanjay Gupta & Anr. Versus H.P. Housing & Urban Development Authority F.A. No.173/2018
------------------------------------------------------------------------------------------------------------------ Consumer Protection Act 2019) has granted excessive litigation costs to complainants to the tune of Rs.3000/- (Three thousand) and on this ground appeal filed by HIMUDA be allowed is decided accordingly. It is proved on record that complainants have to approach learned District Consumer Commission and complainants have to engage Advocate and have also paid other litigation expenses. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to interfere in litigation costs order of learned District Forum (Nomenclature changed to District Consumer Commission vide latest Consumer Protection Act 2019). In view of above stated facts point No.1 is decided accordingly.
Findings upon point No.2 with reasons relating to F.A. No.173/2018 :-___________________________________________
13. Evidence is not repeated again in order to avoid repetition. Submission of learned Advocate appearing on behalf of complainants that final cost assessed by HIMUDA to the tune of Rs.1655000/-(Sixteen lac fifty five thousand) is contrary to laws and contrary to facts and complainants are legally entitled for refund of Rs.275103/-(Two lac seventy five thousand one hundred three) alongwith interest @ 18% per annum w.e.f. 11.11.2011 till its realization is decided accordingly. State Commission has carefully perused 8 H.P Housing and Urban Development Authority Versus Sanjay Gupta & Anr. F.A. No.149/2018
& Sanjay Gupta & Anr. Versus H.P. Housing & Urban Development Authority F.A. No.173/2018
------------------------------------------------------------------------------------------------------------------ allotment letter annexure-C4 dated 24.07.2007 issued by HIMUDA to allottee. There is positive recital in allotment letter that costs of plot in question was tentative in nature costs only. There is also positive recital in allotment letter that possession of plot in question would be handed over to complainants after depositing final costs of plot in question and after execution of conveyance deed on the basis of As is Where is basis. There is also positive condition in allotment letter that costs mentioned above is only tentative in nature and final costs would be worked out on the basis of completion of development work which will be binding on the allottees. State Commission is of the opinion that terms and conditions of allotment letter is binding upon allottee and allottee could not be allowed to flout terms & conditions of allotment letter. It is well settled law that approbate and reprobate is not permissible. See CPR 2016(4) 487 NC Amandeep Kaur Versus DLF Universal Ltd. & others. See 2017(3) CPR 52 NC Haj Committee of India Versus Mohd. Ahsan Reza IPS and others. See 2018(1) CPR 335 NC Kavita Sikka Versus Oasis Landmark LLP and Anr. See 2017(1) CPR 315 NC M/s. Krishna Kunj Versus Rabindra Nath Basu and others. See AIR 1993 SC 352 titled R.N. Gosain Versus Yashpal Dhir.
9 H.P Housing and Urban Development Authority Versus Sanjay Gupta & Anr. F.A. No.149/2018
& Sanjay Gupta & Anr. Versus H.P. Housing & Urban Development Authority F.A. No.173/2018
------------------------------------------------------------------------------------------------------------------
14. State Commission is of the opinion that dispute inter se parties is relating to settlement of accounts and it is not expedient in the ends of justice and on the principles of natural justice to decide settlement of accounts dispute in a summary manner under Consumer Protection Act. See 1998(III) CPJ 9 NC (Four members bench) titled Vishal Roadways Versus Economic Traders (Gujarat) Ltd.
15. State Commission is of the opinion that in view of terms and conditions of allotment letter executed inter se parties it is not expedient in the ends of justice and on the principles of natural justice to order HIMUDA to refund an amount of Rs.275103/-(Two lac seventy five thousand one hundred three) alongwith interest @ 18% per annum w.e.f. 11.11.2011 till realization to complainants.
16. Submission of learned Advocate appearing on behalf of complainants that HIMUDA did not hand over possession of plot in question to complainants within reasonable period even after receiving final amount and complainants are legally entitled for escalation costs of prices of material to the tune of Rs.500000/-(Five lac) which would be used by complainants for raising construction alongwith interest @ 18% per annum and on this ground appeal filed by complainants be allowed is decided accordingly. State Commission is of the opinion that reasonable compensation 10 H.P Housing and Urban Development Authority Versus Sanjay Gupta & Anr. F.A. No.149/2018
& Sanjay Gupta & Anr. Versus H.P. Housing & Urban Development Authority F.A. No.173/2018
------------------------------------------------------------------------------------------------------------------ alongwith interest @ 9% per annum has been granted by learned District Forum (Nomenclature changed to District Consumer Commission vide latest Consumer Protection Act 2019) to the tune of Rs.10000/-(Ten thousand) and same does not warrant interference by State Commission on the principle of equity and on the concept of natural justice.
17. It is well settled law that transfer of immovable property whose value is exceeding Rs.100/-(Hundred) requires compulsory registration under section 17 of Registration Act 1908. Title in immovable property valuing more than Rs.100/-(Hundred) passes only after registration of Conveyance deed before learned Sub-Registrar. See AIR 1961 SC 1747 titled Ram Saran Lall and others Versus Mst. Domini Kuer and others. See AIR 1989 SC 1923 titled Lachhman Dass Versus Ram Lal and Anr. In the present matter complainants did not place on record Conveyance Deed executed inter se parties before learned Sub Registrar in order to prove vestment of title of plot in question in favour of complainant and extinguishment of title from HIMUDA. Point No.2 is decided accordingly.
Point No.3 : Final Order
18. In view of findings upon points No.1 & 2 both appeals i.e. F.A. No.149/2018 and F.A. No.173/2018 are dismissed. Order of learned District Forum (Nomenclature 11 H.P Housing and Urban Development Authority Versus Sanjay Gupta & Anr. F.A. No.149/2018
& Sanjay Gupta & Anr. Versus H.P. Housing & Urban Development Authority F.A. No.173/2018
------------------------------------------------------------------------------------------------------------------ changed to District Consumer Commission vide latest Consumer Protection Act 2019) is affirmed. Certified copy of order be placed in the original file of F.A. No.173/2018 forthwith. Allotment letter annexure-C4 dated 24.07.2007 and possession letter annexure-C11 dated 16.09.2011 shall form part and parcel of order.
19. File of learned District Forum (Nomenclature changed to District Consumer Commission vide latest Consumer Protection Act 2019) alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Both Appeals i.e. F.A. No.149/2018 & F.A. No.173/2018 are disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member 18.09.2019 K.D 12