State Consumer Disputes Redressal Commission
Bda vs Angrej Kaur on 18 May, 2016
Second Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.345 of 2014
Date of institution : 02.04.2014
Date of decision : 18.05.2016
1. Bathinda Development Authority through its Chief Administrator
(mentioned as Administrator), Model Town, Phase-I, opposite
Gurudwara, Bathinda (now BDA Complex, Bhagu Road,
Bathinda).
2. Estate Officer, Bathinda Development Authority, Model Town,
Phase-I, Opposite Gurudwara, Bathinda (now BDA Complex,
Bhagu Road, Bathinda).
.......Appellants/Opposite Parties
Versus
Angrej Kaur daughter of Jhakhar Singh, resident of village Jalalana,
District Sirsa, wife of Darshan Singh, resident of House No.1293-C,
Model Town, Phase-1, Bathinda.
........Respondent/Complainant
First Appeal against order dated
13.12.2013 passed by the District
Consumer Disputes Redressal
Forum, Bathinda.
Quorum:-
Mr. Gurcharan Singh Saran, Presiding Judicial Member
Mr. Harcharan Singh Guram, Member Present:-
For the appellants : Sh.Balwinder Singh, Advocate For the respondent : Sh.Mukand Gupta, Advocate HARCHARAN SINGH GURAM, MEMBER:-
This appeal has been preferred by the appellants/opposite parties (hereinafter referred as OPs), assailing the order dated 13.12.2013, in Consumer Complaint No.321 dated 07.08.2013, passed by the District Consumer Disputes Redressal Forum, Bathinda (in short 'District Forum'), vide which, the complaint filed by F.A.No.345 of 2014 2 the complainant was allowed with the directions to OPs to refund the amount of Rs.93,632/ as penal interest charged from the complainant alongwith interest @ 9% per annum since its deposit till realization, alongwith Rs.5,000/- as cost and compensation.
2. Brief facts of the case are that the complainant purchased one flat in HIG Scheme bearing H.No.1293-C, Motel Town, Phase-1, Bathinda from Gurbax Singh s/o Kartar Singh, who was allotted the said house by OPs, vide letter No. 5928 dated 10.11.2000. The total price of the house was Rs.9,11,900/- and was to be paid in installments as per plan mentioned in the said allotment letter. However, during the pendency of the installments the original allotee Gurbax Singh entered into agreement to sell the said house in favour of the complainant. After the sale agreement entered between Gurbax Singh and the complainant, the original allottee i.e. Gurbax Singh applied to OPs for issuance of NOC(No Objection Certificate) in order to enable him to transfer the said house in the name of the complainant. OPs vide their letter No.3039 dated 18.08.2006 issued No Objection Certificate to transfer the said house in favour of the complainant. She was advised by the OPs to submit the affidavit and to deposit the installments as per the plan. After issuance of the said certificate she was advised that when all the installments would be paid by her, the house would be registered in her name. Thereafter, she deposited a sum of Rs.1,30,000/-, vide receipt No.20 dated 10.05.2008; a sum of Rs.1,50,000/-, vide receipt No.5 dated 20.05.2008; a sum of Rs.1,50,000/-, vide receipt No.56 dated 25.05.2009 and a sum of Rs.75,000/-, vide receipt No.48 dated 04.11.2009 and the said amounts were received by OPs from her F.A.No.345 of 2014 3 being the balance amount. After depositing the said amount she gave a request letter to OPs on 03.06.2010 to confirm the balance amount outstanding towards complainant and also to transfer the said house in her name. The said letter was duly received by OPs vide diary No.1312. Ops failed to specify the amount due towards her and refused to transfer the house in her name. On failure to get any relief from the OPs she filed the complaint under Consumer Protection Act, 1986 before the District Forum. The said complaint was allowed by the District Forum vide its order dated 29.03.2012. The complainant in response to the above order of the District Forum moved an application dated 03.05.2012 with OPs and OPs duly received it vide, its diary no.1326. OPs issued a letter No.2570 dated 21.05.2012 to the complainant in order to enable her to comply with the formalities and gave a list of documents and demanded a sum of Rs.2,40,560/- as outstanding amount against her. She deposited the said amount of Rs.2,40,560/- by way of demand draft under protest. Even after deposit of the said amount with the OPs on 23.05.2012, OPs failed to register the house in her name. She filed the present complaint against the OPs that OPs illegally charged an amount of Rs.2,40,560/- from her. Since Ops charged an excess amount from her, she moved an application seeking the details of installments paid by her and such information was supplied to her vide letter No.521 dated 29.04.2013. As per statement of account the amount of two installments of Rs.73,464/- each, was outstanding to be paid by her alongwith penal interest. She submitted that OPs issued letter No.2201 dated 17.06.2010, wherein it was stated that OPs would not be able to transfer the house as per their letter dated 18.08.2006 in F.A.No.345 of 2014 4 her name due to lapse of sanction letter. It was further stated in this letter that all the formalities were required to be completed within 60 days. If the same were not completed within 60 days, the permission given by the said letter would lapse automatically. She further submitted that there was a default on the part of OPs, as they did not have any right to charge penal interest from her after her representation letter dated 03.06.2010 given to OPs. As per statement of account furnished by the Ops it was revealed that a sum of Rs.93,632/- was charged as penal interest from her, which was excessive and violation to the statutory provisions as well as principle of natural justice and the said amount was not payable by her. She made a representation to OPs to reverse the penal interest charged from her but she did not receive any reply from the OPs. On failure to get any reply from the OPs she filed a consumer complaint against OPs for issuance of following directions:-
i. to refund a sum of Rs.93,632/- alongwith interest @ 18 % per annum from the date of deposit till realization. ii. to pay a sum of Rs.50,000/- on account of compensation for mental agony, harassment and botheration; and iii. to pay the cost of present litigation.
3. Upon notice, OPs No.1&2 filed joint written reply and took legal objections that complainant was not a consumer as defined under Section 2(1) (d) (ii) of the Act. She had no cause of action to file the present complaint; she had no locus standi to file the present complaint and District Forum did not have any jurisdiction to adjudicate the complaint under Section 174 of the PUDA Act, thus this complaint deserves to be dismissed; Complaint was bad for non- F.A.No.345 of 2014 5
joinder and mis-joinder of necessary parties; complainant did not come to Forum with clean hands and had concealed the material and true facts from the District Forum; she failed to complete the formalities for transfer of house in her name; intricate questions of law and facts were involved in the present complaint, which could not be decided in summary proceedings under the CP Act, therefore, matter be relegated to the civil court and that complaint was false, frivolous and vexatious and she be ordered to pay Rs.50,000/- as penalty under Section 26 of the Consumer Protection Act. On merits, averments stated in the legal objections were reiterated. Complaint was bad for not impleading Gurbax Singh original allottee as a party to the complaint. It was submitted that original allottee Gurbax Singh, applied for permission to transfer H.No.1293-C, Phase-1, Model Town, Bathinda and he submitted the required documents for issuance of NOC/permission for transfer only. Thereafter, permission to sell the said house was granted to him, subject to deposit to some documents, vide letter No.3039 dated 18.08.2006. Complainant had failed to complete the formalities for transfer of the house in question in her name within the stipulated period. She also did not produce any agreement for having made payments to said Gurbax Singh of the flat in question. It was admitted that complainant deposited the installments of the house in question on behalf of allottee Gurbax Singh on different dates as per allotment letter dated 10.11.2000. It was admitted that they replied her letter dated 03.06.2010 and sent a letter No.2201 dated 17.06.2010 to the complainant that allotment of the house was not transferred in her name as permission for transfer of house had expired which was valid only for 60 days as per their F.A.No.345 of 2014 6 letter No.3039 dated 18.08.2006. So her request could not be considered. It was pleaded that complainant failed to submit the required application form RA-02 alongwith affidavit and Higher Purchase Agreement within 60 days, for issuance of re-allotment letter. It was admitted that earlier complaint of the complainant was allowed by the District Forum Bathinda on 29.03.2012. It was also admitted that letter No.2570 dated 21.05.2013 was sent to the complainant for completion of necessary documents for transfer of house in question, alongwith bank draft to be deposited alongwith due installments and interest, totaling to Rs.2,40,560/-. It was admitted that she had submitted the documents on 23.05.012, but the application form RA-02 was to be signed by the Gurbax Singh original allottee. Thereafter she was informed, vide letter No.3340 dated 22.06.2012 that application form for re-allotment/transfer of ownership form i.e.RA-02 was to be signed by Gurbax Singh original allottee and not by her and the said form was returned to her for necessary compliance. However, she failed to complete the formalities and failed to comply with the mandatory provisions, as such transfer could not be made in time due to non-cooperative attitude of the complainant. It was denied that excess amount was charged by OPs and reiterated its stand that complainant had only deposited the due installments and penal interest, totaling to Rs.2,40,560/- as per rules and no excess amount was charged from her as alleged in the complaint. As such, there was no deficiency in service on the part of OPs. Complaint was without merit. It be dismissed.
4. District Forum allowed the parties to lead evidence in F.A.No.345 of 2014 7 support of their averments.
5. Complainant tendered in evidence her affidavit Ex.C-1 alongwith documents Ex.C-2 to Ex.C-13 and closed the evidence. On the other hand OPs tendered into evidence affidavit of Sh.Amit Mahajan Ex.OP1/1 alongwith documents Ex.OP1/2 to Ex.OP1/11 and closed the evidence.
6. The District Forum heard the arguments of counsels for the parties and perused the record and allowed the complaint of the complainant, after observing that, from perusal of record placed on file, the complainant herself requested OPs for the deposit of the outstanding installments, but they failed to pay any heed to her request as at that time only two installments of May, 2010 and November, 2010 were outstanding. Thus, there was deficiency in service on the part of OPs in demanding the amount of Rs.93,632/- from the complainant. Thus, OPs were directed to refund the amount of Rs.93,632/- as penal interest, vide aforesaid order.
7. Aggrieved with the impugned order, OPs filed the present appeal in this Commission. We have heard the arguments of counsels for the parties and perused the record. The counsel for the OPs argued that as per allotment letter issued to the original allottee the complainant, who was subsequent purchaser was to abide by the terms and conditions of the allotment letter issued to the original allottee. As such, the demand raised by OPs from the complainant was a valid demand specifically the penal interest charges. However, the District Forum wrongly allowed the complaint by directing OPs to pay back the amount of Rs.93,632/-.
8. On the other hand counsel for the complainant argued F.A.No.345 of 2014 8 that as per Ex.C-12 a statement was issued in the name of the complainant on 03.09.2012, where in only two installments pertaining the period for 10.05.2010 and 10.011.2010 was shown as outstanding. As per the said statement an amount of Rs.2,40,560/- was paid by the complainant on 23.05.2012 and the same was wrongly demanded. As per the statement of installment amount alongwith late payment interest upto 10.11.2009 was paid by her and there was no balance outstanding for the installment or any penal interest against her. It was further contended that as per letter dated 03.06.2010 (Ex.C-2), the complainant had made a request to OPs to inform her actual outstanding amount to be deposited by her and her request was rejected vide their letter dated 17.06.2010 (Ex.C-3). As such demand for payment made vide their letter for a sum of Rs.2,40,560/- was wrong demand and directions given by the District Forum need to be affirmed and the appeal filed by the present appellants is liable to be dismissed.
9. In order to decide the controversy in hand, we have minutely perused Ex.C-12, Ex.OP1/11, which is statement of account pertaining to amount due in the name of first allottee Gurbax Singh and second name of allottee Smt.Angrej Kaur. If we compare Ex.C- 12 and Ex.OP1/11, Ex.C-12 was issued by Bathinda Development Authority pertaining to allottee Smt.Angrej Kaur, mentioning the details of allotment letter No.5928 dated 10.11.2000 pertaining to H.No.HIG 1293 showing the total cost of Rs.9,11,900/-. As per Ex.C- 12 and as per Ex.OP1/11 no amount is shown outstanding against the complainant toward OPs as on 10.11.2009. In both these exhibits amount was shown as '0'(zero). However, two installments as per F.A.No.345 of 2014 9 Ex.C-12 and Ex.OP1/11 pertaining to period from 10.05.2010 to 10.11.2010 were outstanding. These installments were of Rs.73464/, each which was due on 10.11.2010 and on 10.05.2010 including interest @ 15% also. Ex.C-12 and Ex.OP1/11 reveal that installment which was due on 10.05.2010 and it was late by 744 days and due amount of penal interest for late deposit was calculated as Rs.29949/- as per Ex.OP1/11. Similarly the installment due on 10.11.2010 which was for a sum of Rs.73464/- was to be deposited by the complainant on 10.11.2010. There was a delay of 560 days in paying the installment and due amount of penal interest for late deposit of the installment was shown as Rs.21415/-. In view of the Ex.OP1/11 OPs were entitled only for the penal interest charges towards last two installments deposited late and it comes to Rs.29949 + Rs.21415= Rs.51364/- and not Rs.93632/-. We find that OPs are arm twisting the complainant and forced her to deposit a sum of Rs.2,40,560/-. They should have directed the complainant to pay Rs.73464+Rs.29949+Rs.73464+Rs.21415=Rs.198292/-. Thus, we hold that a sum of Rs.2,40,560 - Rs.1,98,292/- = Rs.42,268/- was charged excess from the complainant which amounted to deficiency in service on the part of OPs. Whereas the District Forum has allowed the refund of entire penal interest charging amounting to Rs.93,632/- without giving specific observation that how many installments were deposited late by the complainant upon which amount she was required to pay the penal interest. In this way, order passed by the District Forum requires modification.
10. In view of the above observations, we partly allow the appeal of the appellants and modify the order of the District Forum F.A.No.345 of 2014 10 and reduce the amount to be refunded to the complainant from Rs.93632/- to a sum of Rs.42268/- only (Rs.93632- Rs.51364=Rs.42268). All the other directions given by the District Forum in the impugned order are affirmed.
11. The appellants had deposited a sum of Rs.25000/- at the time of filing this appeal in this commission. The registry is hereby directed to remit Rs.25000/- alongwith interest, if any accrued thereon, in favour of the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days from the date of this order. OPs are further directed to pay the remaining amount to the complainant as per the order of this Commission.
12. Arguments in this appeal were heard on 05.05.2016 and the order was reserved. Now, the order be communicated to the parties as per rules
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Harcharan Singh Guram) Member May 18, 2016 RK 2