State Consumer Disputes Redressal Commission
Sh. Badri Narayan Sharma. & Anr. vs Himuda. & Anr. on 5 May, 2020
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
(1) First Appeal No. : 168/2018
Date of Presentation: 26.02.2018
Order reserved on: 14.10.2019
Date of Order : 05.05.2020
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1. H.P Housing & Urban Development Authority (HIMUDA) Nigam
Vihar Shimla-2 (H.P) through its Chief Executive Officer.
2. Executive Engineer HIMUDA Division Parwanoo District Solan
(H.P).
...Appellants/Opposite parties
Versus
1. Badri Narayan Sharma son of Sh. Niranjan Lal Sharma R/o
House No.850 Sector-19 Panchkula Haryana.
2. Sanjeev Kumar son of Sh. Prakash Chand R/o House No.850
Sector-19 Panchkula Haryana.
... Respondents/complainants
For Appellants : Mr. Nitin Mishra vice Mr. Swaran
Sharma Advocate.
For Respondents : Mr. Rajender Thakur vice Mr. Dalip K.
Sharma Advocate.
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(2) First Appeal No.: 169/2018
Date of Presentation: 20.03.2018
Order Reserved on : 14.10.2019
Date of Order : 05.05.2020
1. Badri Narayan Sharma son of Sh. Niranjan Lal Sharma R/o
House No.850 Sector-19 Panchkula Haryana.
2. Sanjeev Kumar son of Sh. Prakash Chand R/o House No.850
Sector-19 Panchkula Haryana.
.......... Appellants/complainants
Versus
1. H.P Housing & Urban Development Authority (HIMUDA) Nigam
Vihar Shimla-2 (H.P) through its Chief Executive Officer.
HIMUDA & Anr. Versus Badri Narayan Sharma & Anr.
F.A. No.168/2018
&
Badri Narayan Sharma & Anr. Versus HIMUDA & Anr.
F.A. No.169/2018
2. Executive Engineer HIMUDA Division Parwanoo District
Solan (H.P).
... Respondents/opposite parties
..................................................................................................
Coram
Hon'ble Mr. P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Hon'ble Mr. R.K. Verma Member
Whether approved for reporting?1 Yes
For Appellants : Mr. Rajender Thakur vice Mr. Dalip K.
Sharma Advocate.
For Respondents: Mr. Nitin Mishra vice Mr. Swaran
Sharma Advocate.
..............................................................................................
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Appeal No.168/2018 & Appeal No.169/2018 filed against the same order passed by learned District Forum/ Commission in consumer complaint No.49/2015/RBT No.13/2017 titled Badri Narayan Sharma & Anr. Versus HIMUDA & Anr. Both appeals are consolidated for disposal in order to avoid conflicting orders.
Brief facts of consumer complaint:
2. Complainants namely Shri Badri Narayan and Shri Sanjeev Kumar filed consumer complaint under Consumer Protection Act pleaded therein that complainants purchased flat No.12-A Block-C at Baddi District Solan H.P. 1 Whether Reporters of the local papers may be allowed to see the order? yes 2 HIMUDA & Anr. Versus Badri Narayan Sharma & Anr. F.A. No.168/2018
& Badri Narayan Sharma & Anr. Versus HIMUDA & Anr. F.A. No.169/2018 for residential purpose from HIMUDA. It is pleaded that possession of flat in question was delivered to complainants by HIMUDA on 16.06.2008 after execution of conveyance deed inter se parties before Sub-Registrar. It is further pleaded that after registration of conveyance deed complainants were in dire need of money and complainants requested HIMUDA for surrender of flat in question. It is further pleaded that flat in question was purchased from loan money obtained from Vijay Bank SCO No.29 Sector-11 Panchkula Haryana. It is further pleaded that possession of flat in question was handed over to HIMUDA by complainants on 15.04.2012 and cancellation order of flat in question was also passed by HIMUDA on 28.08.2012. It is further pleaded loan amount of Rs.798807/- (Seven lac ninety eight thousand eight hundred seven) was released by HIMUDA in favour of Vijay Bank Parwanoo from where complainants obtained loan for purchase of flat in question. It is further pleaded that HIMUDA did not pay remaining amount to the tune of Rs.1222807/- (Twelve lac twenty two thousand eight hundred seven) alongwith interest despite several requests and committed deficiency in service and committed unfair trade practice.
3. Complainants sought relief to the effect that HIMUDA be directed to refund remaining amount of 3 HIMUDA & Anr. Versus Badri Narayan Sharma & Anr. F.A. No.168/2018
& Badri Narayan Sharma & Anr. Versus HIMUDA & Anr. F.A. No.169/2018 Rs.1222807/- (Twelve lac twenty two thousand eight hundred seven) alongwith interest @ 18% per annum. In addition complainants sought relief of payment of Rs.50000/- (Fifty thousand) as damages for mental torture and harassment. In addition complainants sought additional relief of payment of Rs.10000/- (Ten thousand) as compensation for deficiency in service. In addition complainants sought relief of payment of Rs.10000/- (Ten thousand) as litigation costs. Prayer for acceptance of consumer complaint sought.
4. Per contra version filed on behalf of HIMUDA pleaded therein that complainants did not approach Consumer Authority with clean hands and have suppressed material facts. It is further pleaded that complainants are estopped from filing present consumer due to their own acts, deeds and acquiescences. It is further pleaded that consumer complaint is not maintainable because mandatory notice as required under section 49 of H.P. Housing and Urban Development Authority Act 2004 not issued by complainants to HIMUDA. It is admitted that complainants applied for surrender of flat in question. It is further pleaded that request of complainants was accepted by HIMUDA subject to condition that complainants would execute re-conveyance deed before Sub Registrar in favour of HIMUDA. It is further 4 HIMUDA & Anr. Versus Badri Narayan Sharma & Anr. F.A. No.168/2018
& Badri Narayan Sharma & Anr. Versus HIMUDA & Anr. F.A. No.169/2018 pleaded that complainants requested HIMUDA to release amount of Rs.798807/- (Seven lac ninety eight thousand eight hundred seven) in favour of Vijay Bank Parwanoo from where complainants obtained loan for purchase of flat in question. It is further pleaded that as per request of complainants amount of Rs.798807/- (Seven lac ninety eight thousand eight hundred seven) was released in favour of Vijay Bank Parwanoo vide cheque No. 009702 dated 30.08.2012. It is further pleaded that complainants were directed to execute re-conveyance deed but till date complainants did not execute re-conveyance deed relating to flat in question in favour of HIMUDA. It is further pleaded that opposite parties did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
5. Complainants filed rejoinder and reasserted allegations mentioned in consumer complaint. Learned DCF/DCC partly allowed consumer complaint and ordered HIMUDA to refund remaining amount of Rs.1062913/- (Ten lac sixty two thousand nine hundred thirteen) alongwith interest @ 9% per annum from the date of complaint till actual payment. Learned DCF/DCC further ordered that in addition HIMUDA would pay compensation to complainants to the tune of Rs.25000/- (Twenty five thousand) towards 5 HIMUDA & Anr. Versus Badri Narayan Sharma & Anr. F.A. No.168/2018
& Badri Narayan Sharma & Anr. Versus HIMUDA & Anr. F.A. No.169/2018 mental harassment. Learned DCF/DCC further ordered that HIMUDA would also pay Rs.3000/- (Three thousand) to complainants as litigation costs.
6. Feeling aggrieved against order of learned DCF/DCC HIMUDA filed F.A.No.168/2018 titled HIMUDA & Anr. Versus Badri Narayan & Anr and complainants namely Badri Narayan and Sanjeev Kumar filed F.A.No. 169/2018 titled Badri Narayan & Anr. Versus HIMUDA and Anr. before State Commission.
7. It is also proved on record that initially complainants have filed consumer complaint No.02/2015 titled Badri Narayan & Anr. Versus HIMUDA and another directly before State Commission on 26.02.2015 and H.P. State Consumer Commission on dated 05.03.2015 allowed complainants to withdraw consumer complaint filed before State Commission and liberty was granted to complainants to file fresh consumer complaint on same cause of action before learned DCF/DCC. Thereafter complainants filed consumer complaint No. 49/2015/RBT No.13/2017 before DCF/DCC.
8. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
6
HIMUDA & Anr. Versus Badri Narayan Sharma & Anr. F.A. No.168/2018
& Badri Narayan Sharma & Anr. Versus HIMUDA & Anr. F.A. No.169/2018
9. Following points arise for determination in present appeal.
1. Whether F.A.No.168/2018 filed by HIMUDA titled HIMUDA & Anr. Versus Badri Narayan & Anr is liable to be accepted as mentioned in memorandum of grounds of appeal and whether re-conveyance deed qua extinguishment of title of complainant and vestment of title in HIMUDA relating to flat in question is mandatory as per provision of law i.e. Section 17(1)(b) of Registration Act 1908?
2. Whether F.A.No. 169/2018 field by complainants titled Badri Narayan & Anr. Versus HIMUDA and Anr. 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.168/2018 :
10. One of the complainant namely Shri Badri Narayan filed affidavit in evidence. There is recital in affidavit that contents of consumer complaint and documents Annexure C-1 to C-14 filed by complainants be read in evidence. There is further recital in affidavit that complainants purchase flat No.12-A Block-C at Baddi District Solan H.P. for residential purpose from HIMUDA. There is further recital in affidavit that on dated 16.06.2008 7 HIMUDA & Anr. Versus Badri Narayan Sharma & Anr. F.A. No.168/2018
& Badri Narayan Sharma & Anr. Versus HIMUDA & Anr. F.A. No.169/2018 possession of flat in question was delivered to complainants by HIMUDA and complainants became owner of flat in question by way of execution of conveyance deed relating to flat in question before Sub-Registrar. There is further recital in affidavit that after registration of conveyance deed before Sub Registrar complainants were in dire need of money and thereafter complainants requested HIMUDA for surrender of flat in question. There is further recital in affidavit that permission was granted by HIMUDA for surrender of flat in question on dated 15.02.2012. There is further recital in affidavit that thereafter complainants factually handed over flat in question to Assistant Engineer HIMUDA Sub Division Baddi District Solan H.P. on 12.04.2012. There is further recital in affidavit that HIMUDA did not release remaining entire amount of flat in question till date. There is further recital in affidavit that HIMUDA time and again sent communications to complainants for execution of re- conveyance deed relating to flat in question without any prior condition in scheme. There is further recital in affidavit that HIMUDA committed deficiency in service and committed unfair trade practice. State Commission has carefully perused all annexures filed by complainants.
11. Learned Advocate namely Shri Swaran Sharma engaged by HIMUDA on dated 19.10.2016 gave separate 8 HIMUDA & Anr. Versus Badri Narayan Sharma & Anr. F.A. No.168/2018
& Badri Narayan Sharma & Anr. Versus HIMUDA & Anr. F.A. No.169/2018 written statement placed on record that version already filed by HIMUDA be read in evidence and closed evidence on behalf of HIMUDA.
12. Submission of learned Advocate appearing on behalf of HIMUDA that order of learned DCF/DCC directing HIMUDA to refund remaining amount of Rs.1062913/- (Ten lac sixty two thousand nine hundred thirteen) alongwith interest @ 9% per annum from the date of complaint till actual payment to complainant without execution of re- conveyance deed relating to flat in question is contrary to laws and is contrary to proved facts and on this ground appeal filed by HIMUDA be allowed is decided accordingly. It is proved on record that complainants requested HIMUDA to cancel flat in question and thereafter HIMUDA cancelled flat in question on dated 28.08.2012 vide Annexure C-7 placed on record. State Commission has carefully perused cancellation order dated 28.08.2012 Annexure C-7 passed by HIMUDA. There is positive recital in cancellation order Annexure C-7 that on request of complainants allotment of flat in question was cancelled and sanction to refund amount of Rs.798807/- (Seven lac ninety eight thousand eight hundred seven) in favour of Manager Vijay Bank SCO 29 Sector-II Panchkula was issued and sum of Rs.321738/- (Three lac twenty one 9 HIMUDA & Anr. Versus Badri Narayan Sharma & Anr. F.A. No.168/2018
& Badri Narayan Sharma & Anr. Versus HIMUDA & Anr. F.A. No.169/2018 thousand seven hundred thirty eight) was deducted on account of earnest money, penal interest and depreciation charges. There is further recital in cancellation order Annexure C-7 passed by HIMUDA that only sum of Rs.1062913/- (Ten lac sixty two thousand nine hundred thirteen) was withheld by HIMUDA. There is further recital in cancellation order Annexure C-7 passed by HIMUDA that sum of Rs.1062913/- (Ten lac sixty two thousand nine hundred thirteen) would be released in favour of complainants subject to execution of re-conveyance deed by complainants in favour of HIMUDA relating to flat in question.
13. State Commission is of the opinion that re- conveyance deed before Sub Registrar in favour of HIMUDA relating to flat in question is essential as per section 17 (1)(b) of Registration Act 1908. As per section 17 (1)(b) of Registration Act 1908 title could not be created or extinguished in immovable property when value of immovable property is exceeding Rs.100/- (One hundred) unless conveyance deed is registered before Sub Registrar. State Commission is of the opinion that execution of re-conveyance deed before Sub Registrar for extinguishment of title of flat in question in favour of complainant is mandatory under section 17 (1)(b) of Registration Act 1908. It is well settled law 10 HIMUDA & Anr. Versus Badri Narayan Sharma & Anr. F.A. No.168/2018
& Badri Narayan Sharma & Anr. Versus HIMUDA & Anr. F.A. No.169/2018 that title passes in immovable property in favour of vendee only when conveyance deed is registered before Sub Registrar when value of immovable property is exceeding Rs.100/- (One hundred). In the present matter admittedly value of flat in question is exceeding Rs.100 (One hundred) and same requires execution of re-conveyance deed mandatory under Registration Act 1908. See AIR 1961 Apex Court (Full Bench) 1747 titled Ram Saran Lall and others Versus Mst. Domini Kuer and others. See AIR 1989 SC (DB)1923 titled Lachhman Dass Versus Ram Lal and Anr.
14. It is proved on record that HIMUDA has written letter dated 02.03.2013 Annexure C-9 to complainants for execution of re-conveyance deed qua flat in question and also written another letter dated 03.09.2013 Annexure C-10 to complainants for execution of re-conveyance deed but complainants did not execute any re-conveyance deed in favour of HIMUDA relating to flat in question till date which was mandatory under laws of Registration Act 1908.
15. Submission of learned Advocate appearing on behalf of HIMUDA that order of learned DCF/DCC directing HIMUDA to pay compensation to complainants to the tune of Rs.25000/- (Twenty five thousand) for mental harassment also warrants interference by State Commission is decided 11 HIMUDA & Anr. Versus Badri Narayan Sharma & Anr. F.A. No.168/2018
& Badri Narayan Sharma & Anr. Versus HIMUDA & Anr. F.A. No.169/2018 accordingly. State Commission is of the opinion that complainants were under legal obligation to execute re- conveyance deed in favour of HIMUDA relating to flat in question before Sub Registrar and State Commission is of the opinion that it is not permissible under laws to allow complainants to flout mandatory requirements of laws as provided under section 17 (1)(b) of Registration Act 1908.
16. Submission of learned Advocate appearing on behalf of HIMUDA that order of learned DCF/DCC directing HIMUDA to pay litigation costs to complainants to the tune of Rs.3000/- (Three thousand) also warrants interference by State Commission is decided accordingly. State Commission is of the opinion that in view of non compliance of mandatory requirement of laws of section 17 (1)(b) of Registration Act 1908 qua execution of re-conveyance deed in favour of HIMUDA relating to flat in question before Sub Registrar order of learned DCF/DCC granting of litigation costs to complainant warrants interference by State Commission. Point No.1 is decided accordingly.
Findings upon point No.2 with reasons relating to F.A.No.169/2018 :
17. Submission of learned Advocate appearing on behalf of complainants that learned DCF/DCC has not 12 HIMUDA & Anr. Versus Badri Narayan Sharma & Anr. F.A. No.168/2018
& Badri Narayan Sharma & Anr. Versus HIMUDA & Anr. F.A. No.169/2018 granted adequate compensation to complainants and has not granted adequate rate of interest and same be enhanced to Rs.324000/- (Three lac twenty four thousand) is decided accordingly. State Commission is of the opinion that complainants are under legal obligation to execute re- conveyance deed in favour of HIMUDA relating to flat in question as per terms and conditions of cancellation order dated 28.08.2012 passed by HIMUDA and as per mandatory provision of section 17 (1)(b) of Registration Act 1908. It is proved on record that already conveyance deed stood executed qua flat in question in favour of complainants before Sub Registrar. State Commission is of the opinion that for extinguishment of title of complainants qua flat in question separate re-conveyance deed qua flat in question in favour of HIMUDA on behalf of complainants is mandatory as per provision of section 17 (1)(b) of Registration Act 1908.
18. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to grant any relief to complainants unless re- conveyance deed relating to flat in question is executed before Sub Registrar by complainants extinguishing title of complainants qua flat in question and vestment of title in favour of HIMUDA qua flat in question in view of mandatory 13 HIMUDA & Anr. Versus Badri Narayan Sharma & Anr. F.A. No.168/2018
& Badri Narayan Sharma & Anr. Versus HIMUDA & Anr. F.A. No.169/2018 provision of law i.e. Section 17 (1)(b) of Registration Act 1908. Point No.2 is decided accordingly.
Point No.3: Final Order
19. In view of findings upon points No.1 and 2 above F.A.No.168/2018 filed by HIMUDA is allowed and F.A.No.169/2018 filed by complainants is dismissed. Order of learned DCF/DCC is set aside and it is ordered that complainants shall execute re-conveyance deed relating to flat in question in favour of HIMUDA before concerned Sub Registrar.
20. It is further ordered that stamps charges and registration charges shall be paid by complainants before Ld. Sub-Registrar for execution of re-conveyance deed. It is further ordered that complainants shall execute re- conveyance deed in favour of HIMUDA relating to flat in question within one month after receipt of certified copy of order.
21. It is further ordered that after execution of re- conveyance deed before Ld. Sub-Registrar HIMUDA shall refund entire remaining amount to the tune of Rs.1062913/- (Ten lac sixty two thousand nine hundred thirteen) alongwith interest @ 9% per annum from the date of execution of re- 14
HIMUDA & Anr. Versus Badri Narayan Sharma & Anr. F.A. No.168/2018
& Badri Narayan Sharma & Anr. Versus HIMUDA & Anr. F.A. No.169/2018 conveyance deed before Ld. Sub Registrar till actual payment. Order of learned DCF/DCC granting compensation to complainants to the tune of Rs. 25000/- (Twenty five thousand) and order granting litigation costs to complainants to the tune of Rs.3000/- (Three thousand) are set aside. Flat cancellation order dated 28.08.2012 Annexure C-7 passed by HIMUDA relating to flat in question and letter dated 02.03.2013 Annexure C-9 written by HIMUDA to complainants for execution of re-conveyance deed before Ld. Sub-Registrar and letter dated 03.09.2013 Annexure C-10 written by HIMUDA to complainants for execution of re- conveyance deed before Ld. Sub-Registrar shall form part and parcel of order. Parties are left to bear their own litigation costs before State Commission.
22. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. File of learned DCF/DCC 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 final order will be placed in original file of F.A.No.169/2018 titled Badri Narayan & Anr. Versus HIMUDA and Another. Functioning of State Commission remained closed during winter vacation w.e.f. 11.01.2020 to 23.02.2020 and 15 HIMUDA & Anr. Versus Badri Narayan Sharma & Anr. F.A. No.168/2018
& Badri Narayan Sharma & Anr. Versus HIMUDA & Anr. F.A. No.169/2018 functioning of State Commission also remained closed due to Nation wide lock down on account of Corona virus. Hence present both appeals are disposed of today. F.A.No.168/2018 and F.A.No.169/2018 are disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member R.K.Verma Member 05.05.2020 Manoj 16