State Consumer Disputes Redressal Commission
Smt. Sabitri Sethi, Aged About 49 ... vs 1.Bhubaneswar Development ... on 21 October, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION: ORISSA: CUTTACK CONSUMER DISPUTE CASE NO.151 OF 2002 Smt. Sabitri Sethi, aged about 49 years, wife of Shri Ananta Sethi, Qr. No.4/1(DS), Type-1, Unit-II, Bhubaneswar, Dist. Khurda ... Complainant Versus 1. Bhubaneswar Development Authority, a statutory body represented through its Secretary, Akashsobha, Sachivalaya Marg, Bhubaneswar, Dist. Khurda 2. Secretary, Bhubaneswar Development Authority, Akashsobha, Sachivalaya Marg, Bhubaneswar, Dist. Khurda 3. Vice-Chairman, Bhubaneswar Development Authority, Akashsobha, Sachivalaya Marg, Bhubaneswar, Dist. Khurda ... Opposite Parties For Complainant - Mr. Sk. F. Ahmed For Opp. Parties - 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 21st October, 2011.
Justice A.K. Samantaray, President.
The complainant above-named has filed the present consumer complaint before this Commission challenging the illegal and arbitrary action of the opposite parties, particularly opposite party no.2, in not delivering possession of the house as per their own promise, which, according to the complainant, is nothing but deficiency in service causing heavy financial loss and serious mental agony and harassment to him.
2. Opposite party no.1-Bhubaneswar Development Authority is a statutory body, opposite party no.2 is its Secretary and opposite party no.3 is its Vice-Chairman. Opposite party no.1 is carrying on business of real estate amongst other activities vested with it within the limits of Bhubaneswar Municipal Corporation. In the year 1999, opposite party no.1 floated an offer for sale of core houses under 01-02 Scheme of Jayadev Vihar near Hotel Oberoi in Bhubaneswar to the intending purchasers through a widely circulated advertisement at the price fixed by it and as per the terms and conditions stipulated in the brochure published. Such brochure was sold to the intending purchasers pursuant to the said advertisement. Being attracted by the advertisement, the complainant purchased a brochure from the office of opposite party no.1 and applied for a 3-bed room core house on outright purchase basis. It is stated by the complainant that as per the norms stipulated by opposite party no.1, Rs.3,00,000/- was required to be deposited along with the application. However, she deposited Rs.4,00,000/- vide bank challan dated 13.01.1999 along with Rs.500/- towards processing fee. Though the complainant had applied for the core house on 13.01.1999, the opposite parties with ulterior motive kept the matter pending for long 20 months and thereafter vide Allotment Order dated 28.09.2000 allotted a core house bearing number 35 under the said Housing Scheme at Jayadev Vihar. In the said letter of allotment dated 28.09.2000, opposite party no.1 promised to hand over physical possession of the core house to the complainant within 15 months from the date of issue of the letter pending execution of the lease deed and supply of infrastructural facilities. It is stated that although opposite party no.1 accepted the application amount to the tune of Rs.4,00,000/- in January, 1999, it failed to complete the infrastructures due to sheer callousness of its officials. Though as per clause 10 of the Scheme, possession is to be delivered within 18 months of the allotment, which it would have done within 28th March, 2002, the opposite parties miserably failed to make over possession by that date and year. As per clause 4(iii) of the brochure containing the detailed terms and conditions of payment, the complainant was required to deposit the balance amount of Rs.8,50,000/- within three months from the date of allotment, i.e., by 28.12.2000. Since there was an alternative arrangement for payment in instalments, after receipt of the allotment letter dated 28.09.2000 on 12.10.2000, the complainant represented to opposite party no.1 for fixation of instalments as against the balance due and for delivery of possession of the core house. The complainant also applied on 17.10.2000 to the Chairman of opposite party no.1 to allow her to pay the balance amount of Rs.8,50,000/- in instalments and to hand over possession of the house after execution of the lease deed. Though the complainant applied twice to the authorities, i.e., on 12.10.2000 and 17.10.2000, for fixation of instalments, her representations were never attended to by the opposite parties. It is mentioned in the complaint that though initially the complainant had applied for outright purchase and was supposed to pay the balance amount within three months from the date of receipt of the allotment order, subsequently she had applied for fixation of instalments, which is permissible under the norms of the brochure. Since no response was received, the complainant was compelled to approach the Federal Bank for a loan to pay the balance dues of opposite party no.1. In connection with the said loan, a no objection certificate was required to be produced before the bank authorities to mortgage the said house before availing the loan. The complainant applied to opposite party no.1 for issuance of no objection certificate on 25.04.2001 and opposite party no.1 issued the said certificate on 05.05.2001. After receipt of the no objection certificate from opposite party no.1, the complainant produced the same before the bank authorities, and after completion of necessary formalities she received the loan from the bank and deposited the amount, i.e., Rs.8,50,000/-, with opposite party no.1 vide challan dated 08.05.2001. Thus, she cleared the entire due of Rs.12,50,000/-, which is the cost of the core house allotted in her favour, on that date inasmuch as she had earlier deposited Rs.4,00,000/- at the time of making application for allotment. After deposit of the entire cost of the core house amounting to Rs.12,50,000/- with opposite party no.1, the said opposite party was to deliver possession of the house with all infrastructural amenities as promised and execute the necessary covenant in favour of the complainant. Instead of doing so, opposite parties 1 and 2 started playing mischief with an ulterior motive. A letter was issued to the complainant on 08.06.2001 demanding further payment of Rs.3,22,015/- towards interest for the delayed payment of the cost. After receipt of the said letter, the complainant took several attempts to enquire about the matter. After enquiry, she ascertained that opposite party no.1 had not yet received title of the land from the GA Department, who is the owner of the land over which the core houses were constructed. In order to cause delay only, the opposite parties had deliberately issued such an illegal demand notice in a most unlawful manner. She has reiterated in the complaint that while issuing the no objection certificate, the opposite parties had admitted that the complainant was liable to pay Rs.12,50,000/- in toto. It is further stated that the opposite parties played mischief by incorporating as on 021.05.1999, which was against the condition stipulated in their own brochure. She has also stated that instead of giving possession of the core house on receipt of the full cost on 08.05.2001, the opposite parties raised further demand and issued a letter on 02.09.2002 demanding a sum of Rs.3,87,004/- as interest up to 30.09.2002, which is highly illegal. The complainant has taken exception to the demand of interest, which has been made by astronomical calculation, and has termed it to be unfair trade practice as well as deficiency in service. For that the complainant has claimed compensation to the tune of Rs.12,10,000/- on different counts.
3. The opposite parties appeared and filed written statement. It is admitted that the complainant was an applicant and had deposited Rs.4,00,500/- at the time of making application. It is their case that the complainant was allotted an HIG core house vide allotment order dated 02.02.1999 with request to deposit the rest Rs.8,50,000/- within three months from the date of issue of the allotment order, i.e., by 02.05.1999. The complainant failed to deposit the balance due within the stipulated period, for which the BDA charged interest on the default payment as per the terms and conditions laid down in the brochure. In the brochure, there is clear mention that physical possession of the core house was to be handed over within 16 months from the date of allotment. Since the complainant had not deposited the full cost of the house, she was not at all entitled to take over physical possession of the core house. The scheme being a self-financing scheme and the complainant having failed to deposit the balance cost of the house within the stipulated date, her raising the question of deficiency on the opposite parties is without any substance and is totally untenable. It is stated by the opposite parties that the complainant is well aware of the fact that she had to clear up the outstanding due of Rs.8,50,000/- by 02.05.1999 and not by instalments. With an intent to clear of the said due she applied to the BDA on 23.12.1999 to issue NOC to avail loan from the Punjab National Bank, Saheednagar Branch by mortgaging the house with the Bank. The BDA without any delay issued the NOC on 24.12.1999, but the complainant did not avail the loan, nor did he pay the outstanding due. Thereafter, the complainant requested the DA on 27.04.2001 to issue NOC in favour of the Federal Bank for availing loan by mortgaging the said core house. This time also the BDA without any delay issued the NOC on 05.05.2001. The above facts unerringly reveal that the complainant was well aware about the brochure condition to the effect that she had to clear up all the dues by 02.05.1999 and the BDA had also cooperated with the complainant all along.
4. We have heard learned counsel for the parties and perused the documents relied upon by them. From the factual aspect, it emerges that the core house in question was allotted in favour of the complainant on 02.02.1999. She being an outright purchaser of the core house had already made payment of Rs.4,00,500/- at the time of making the application. The balance cost of the house amounting to Rs.8,50,000/- was to be paid by her by 02.05.1999. Ultimately, after incurring loan from the Federal Bank, she made payment of the said amount. Thus, as per the brochure condition, she is liable to make payment of interest at the rate of 19% per annum on Rs.8,50,000/- for two years, i.e., from 02.05.1999 to 07.05.1999, which comes to Rs.3,06,000/-. The complainant is a scheduled caste lady. From the facts situation it is amply clear that she was not in a position to make payment of the outstanding cost component of the core house for which from time to time she had obtained NOC from the opposite parties to incur loan from different banks. Ultimately, she incurred loan and made payment. Even thereafter, possession of the core house was not handed over to her on the ground of non-payment of the interest component, and by order of this Commission dated 12.06.2003, the opposite parties made over physical possession of the house to the complainant.
5. Since the complainant, who is no doubt a consumer, has already made payment of the full cost of the house, she is only liable to make payment of the interest for the defaulted period of two years at the rate stipulated in the brochure. As already indicated hereinbefore, she is liable to make payment of an amount of Rs.3,06,000/- towards the said interest, and we direct her to make payment of the same within a period of two months from the date of this order. At the same time, we direct the opposite parties to receive the said amount and execute lease deed in favour of the complainant within a month from the date of receipt of the aforesaid amount.
6. The complaint petition is disposed of accordingly.
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(Justice A.K. Samantaray) President Sd/-
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(Smarita Mohanty) Member SCDRC, Orissa, Cuttack October 21st , 2011/Nayak