CHANDIGARH HOUSING BOARD vs AMARJIT KAUR

-THIS appeal has been directed by the opposite party against order dated 18. 10. 2007 passed by Consumer Disputes Redressal Forum-I, Union Territory, Chandigarh (hereinafter to be referred as District Consumer Forum), vide which complaint of respondent (complainant) was accepted and appellant was directed to recalculate the balance amount due against respondent within two months from the date of order by charging interest @ 16. 5% p. a. as per Clause 22 as applicable to the scheme framed by them and demand the same from respondent and on payment of which, if found correct, ''no due certificate'' had to be issued. It was further ordered to pay Rs. 10,000 on account of mental and physical harassment and also costs of litigation.

BRIEFLY stated the facts are that respondent (complainant) Ms. Amarjit Kaur was allotted dwelling unit No. 5141/3, Category-HIG-I at modern complex, Manimajra, Chandigarh vide registration No. 14016. The respondent through her general power of attorney wrote to the appellant informing her about the total amount payable and in response to which appellant informed vide letter Annexure C-2 dated 16. 4. 2004 that amount of Rs. 8,29,472 including ground rent was due from her upto 31. 5. 2004 after adjusting the amount already paid subject to any rectification or discrepancy. It was next averred that legal notice was served upon appellant in which it was pointed out that respondent had already paid Rs. 8,56,171 till date against total amount of Rs. 9,96,000 and only Rs. 1,37,829 were payable and further it was made clear that she was not liable to pay interest on the delayed payment if there was any delay done by the appellant in carrying out necessary correction in the demanded amount.

Alleging deficiency in service, complaint was filed.

APPELLANT contested the complaint and stated that total cost of the dwelling unit was Rs. 9,96,000 and a sum of Rs. 4,84,983 remained due from her till 29. 3. 1997 for taking over possession which was deposited on 10. 5. 1997 along with penalty and two instalments and as such possession was handed over on 21. 5. 1997. Thereafter, respondent started paying instalments of Rs. 8,932 with effect from 10. 1. 2001 after a gap of two years and eight months and upto April, 2004, she was required to pay 86 instalments but she paid only 34 instalments and as per terms and conditions of the agreement, she was liable to pay interest/penalty @ 25% on delayed instalments and after adjusting 34 instalments, a sum of Rs. 6,44,086 was outstanding against her on account of interest/penalty and balance 52 instalments. It further stated that a sum of Rs. 1,69,795. 35 was due for lum psum payment after applying factor and adjusting instalments already paid upto 30. 4. 2004 along with interest @ 16. 5% and a sum of Rs. 15,589. 85 was also due against her on account of ground rent which she had not paid along with interest/penalty upto 30. 4. 2004. It further stated that complaint was misconceived and should be dismissed with costs. Parties adduced their evidence by way of affidavits.

AFTER hearing Counsel for the parties, District Consumer Forum vide order dated 18. 10. 2007 accepted the complaint as stated in the earlier part of the judgment. Aggrieved by the said order, opposite party has filed the present appeal. We have heard Counsel for appellant Mr. Naresh Parbhakar and carefully gone through the file.

THERE is no dispute about it that one dwelling unit of HIG category bearing No. 5141/3 at Modern Residential Complex, Chandigarh was allotted to the respondent Ms. Amarjit Kaur vide letter dated 27. 2. 1997 by the appellant for a total sum of Rs. 9,96,000. She had got house booked on 2. 12. 1996 after making payment of Rs. 30,000 as earnest money. The said allotment was against discretionary quota. The respondent vide letter dated 27. 2. 1997 of the appellant was required to deposit a sum of Rs. 4,98,993 before taking possession of the flat. The balance payment was to be affected in equal monthly instalments of Rs. 8,932 for a period of 9 years and the second such instalment was to become due on 10. 4. 1997. The ground rent and other charges as per terms and conditions of hire purchase tenancy agreement were to be paid by the respondent under Clause II of the agreement. The appellant had informed the respondent vide letter Annexure C-2 dated 16. 4. 2004 that respondent had paid an amount of Rs. 8,29,472 up to 30. 4. 2004 including ground rent calculated up to 31. 5. 2004.

THERE is no dispute about it that the possession of the flat was given to the respondent on 21. 5. 1997 on deposit of Rs. 4,84,983 as demanded by the appellant including penalty and two instalments. It is averred that 86 instalments became due upto 1. 4. 2004 and the respondent had paid only 34 instalments against the said flat and after adjusting Rs. 6,44,086 on account interest, penalty and balance of 52 instalments, a sum of Rs. 1,69,795. 35 became due excluding the ground rent amounting to Rs. 15,589. 85 up to 30. 4. 2004 as detailed in nnexure R-1. The main point to be decided in this case is, whether respondent is liable to pay penalty @ 25% of the amount of instalments after three consecutive instalments were not paid without the appellant serving legal notice for termination of the allotment and tenancy, if any? Whether appellant was entitled to charge interest @ 16. 5 % on the amount due as applicable to the scheme framed by the appellant? Clause-6 of the allotment letter dated 27. 12. 1997 reads as under: "you shall pay monthly instalment of Rs. 8,932 by the 10th day of each month following the month for which it falls due, without receipt of a notice to this effect. The same shall be deemed to be the rent for all intents and purposes for a period of 9 years in case of allotment on hire purchase basis. The second such instalment shall be paid by you by 10. 4. 1997. If any instalment is not paid in full by the stipulated date, without prejudice to any other right or remedy of the Board, you shall pay liquidated damages at the rate of 1% of the amount of instalment delayed or Rs. 5 whichever is more for the first month of default, 2% of the amount of instalment delayed or Rs. 10 whichever is more for the second month of default, and 4% of the amount of instalment delayed or Rs. 20 whichever is more for the third month of default in respect of each delayed instalment provided that it shall not exceed 10% of the amount due each month. In case of default for more than three consecutive months in respect of any instalment, the allotment/allotment and tenancy shall be liable to be terminated and you shall be liable to be evicted from the dwelling unit by following the procedure prescribed under Rules as framed under Chapter VI of the Haryana Housing Board Act, 1971, as extended to Union Territory of Chandigarh: provided that without prejudice to the right of the Board to terminate the allotment/allotment and tenancy you shall pay penalty @ 25% of the amount of instalment due up to the date of cancellation of allotment / termination of tenancy. "

Therefore, from this clause it is very much clear that penalty @ 25% of the amount of instalments due upto cancellation of allotment/termination of tenancy could only be charged by the appellant when the appellant had decided to terminate allotment as well as tenancy of respondent by serving notice. Admittedly no notice had been served upon respondent terminating her allotment/tenancy and further agreement had not been terminated, so, appellant was not entitled to charge penalty @ 25% of the amount of instalments due but at best appellant could charge interest/penalty as per Clause-6. However, according to Clause 22 of the allotment letter Annexure C-1 appellant is entitled to charge interest @ 16. 5% as applicable to the scheme framed by the Board.

COUNSEL for appellant contended that termination of allotment/tenancy was not necessary to charge penalty @ 25%. He further contended that if respondent had committed default for more than three consecutive months in respect of instalments then it was entitled to charge penalty @ 25%. In our opinion, contention of Counsel cannot be accepted. Without terminating allotment/tenancy, penalty @ 25% up to the date of termination/allotment could not be charged. We concur with the reasoning given by the District Consumer Forum and hold that there is no merit in the appeal. Consequently, it is dismissed in limine.

COPIES of this order be communicated to the parties, free of charge. Appeal dismissed.