EXECUTIVE ENGINEER, M.P. HOUSING BOARD vs D.K. PARASHAR

THIS appeal is by opposite party, the M.P. Housing Board and its officers who have been directed by the District Consumer Disputes Redressal Forum, Shivpuri to refund or adjust the amount in excess of Rs. 2,63,455/- recovered from the respondent-complainant towards cost of a HIG house purchased by the respondent-complainant from the appellant-Board.

AS per advertisement issued way back in the year 1991 the estimated price of the house in question was indicated at Rs. 2,35,000/-. However, in the allotment order issued on 30.10.1993 the price of the house was fixed at Rs. 3,65,219/- and after giving adjustment of the amount already paid by the respondent-complainant he was accorded facility of paying the balance amount in 5 years or 10 years or 15 years instalments as per his own choice. Accordingly, a hire purchase agreement was entered into between the appellant-Board and the respondent-purchaser on 2.5.1994 and the respondent was put in possession of the house. It appears that the respondent had paid some instalments. He, however, on 30.9.2000 filed complaint before the Forum below challenging the said escalation in price of the house and claiming refund of his money paid in excess of the declared price. He further complained that some additional work was required to be done in the house at the expenses of Rs. 60,000/-. He also alleged that on account of illegal demand and recoveries made by the appellant-Board he suffered heart attack for the treatment of which, he was required to spend Rs. 50,000/-. He thus claimed a total sum of Rs. 4,46,450/-. The complaint was resisted by the appellants and it was contended that dispute regarding escalation of price fell outside the purview of the Consumer Protection Act, 1986 (for short "CP Act"). They also challenged complainant''s right to agitate the issue after lapse of more than 6 years. It was further contended that the price has been fixed on the basis of actual expenses incurred in construction of the house and which the complainant agreed to pay without raising any objection. It was pointed out that the complainant has yet not paid all the instalments and has filed complaint only with a view to avoid payment of the balance money.

The Forum below after taking evidence of the parties allowed the complaint in part holding that escalation of price beyond 11.75% of the indicated estimated price of the house was not justified. The Forum below thus fixed the price of the house at Rs. 2,63,455/- and directed the appellant-Board to refund or adjust the excess amount charged from the complainant. However, the claim of the complainant for the said amount of Rs. 60,000/- plus Rs. 50,000/- was rejected.

WE have heard Mr. H.P. Budholiya, learned Counsel for appellant and Mr. V.K. Saxena, learned Counsel for respondent. This appeal in our considered judgment must succeed. At the out-set it may be observed that the complaint of the respondent suffered with delay and laches and deserved dismissal being hopelessly barred by limitation. The notice as to the escalation in price was given to the complainant way back on 10.8.1992, (vide Annexure A/9). Again on 30.10.1993 while issuing allotment order (Annexure A/10) it was clearly stated that the total cost of the house would be Rs. 3,65,219/- and the respondent-allottee was required to pay the balance amount of Rs. 1,92,000/- in yearly instalments in 5 or 10 or 15 years. The respondent-complainant instead of raising any objection quitely entered into hire purchase agreement with the appellant-Board on 2.5.1994 (vide Annexure A/2) agreeing thereby to pay the said balance amount in 10 yearly instalments. The respondent kept quite for all these 6 years before filing complaint before the Forum below on 30.9.2000. Complaint was clearly barred by limitation as provided in Section 24A of the Consumer Protection Act.

THE case in hand is otherwise covered by the doctrine of waiver as contained in Section 63 of the Indian Contract Act, 1872 which thus reads as follows: "63. Promise may dispense with or remit performance of promise.-Every promise may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or my accept instead of it any satisfaction which he thinks fit." (Emphasis supplied)

Section 63 in the first instance entitles a promisee to dispense with or remit wholly or in part the performance of the promisee made to him, or to extend time for such performance or to accept instead of that performance any satisfaction which he thinks fit. It also enables the promissor defendant in a suit filed by the promisee dispensing or remitting performance or accepting satisfaction and subsequently trying to enforce the promise made to him, to plead that he was relieved from performance of that promise which the plaintiff told he need not. Exercise of right under Section 63 by the promisee amounts to waiver on his part of his right to enforce the promise in its original form and it creates a bar of estoppel or atleast quasi-estoppel against him entitling the promissor/opposite party to say that the complainant having accepted satisfaction in a modified form was now estopped from seeking enforcement of the original promise. There is nothing in law to prevent and discharge by acceptance or something in lieu of the performance of contract and once the promisee avails of his right under Section 63, the principle of waiver/estoppel comes in his way preventing him from going back on the subsequent promise so as to enforce the terms of original promise. In the case in hand, true the appellant-Board had initially indicated the estimated cost of the house at Rs. 2,35,000/-. However, clear notice of escalation in price was given on 10.8.1992 which the respondent-complainant accepted without demur and entered into written agreement with the appellant-Board and also obtained delivery of the house. He thus accepted the revised offer of the appellant-Board to purchase the house on the enhanced price. The respondent thus dispensed with the performance of the original promise of the Housing Board to sell and deliver the house for Rs. 2,35,000/-. This constituted waiver as envisaged under Section 63 of the Indian Contract Act and the complainant was estopped from trying to enforce the original promise made to him.

THE controversy as projected by the respondent, we are afraid, did not constitute a "consumer dispute" under the provisions of the Consumer Protection Act. It is now too well settled that the Consumer Forum cannot go into the question of pricing of a house. Mr. V.K. Saxena, learned Counsel for respondent has, however, contended that the escalation was contrary to the terms and conditions of the advertisement which clearly provided that the escalation if any would be brought to the notice of the respondent-allottee before payment of second instalment. In support of his contention Mr. Saxena, learned Counsel placed reliance on a decision of the National Commission in the case of M.P. Housing Board v. Smt. Rekha Saxena, III (2002) CPJ 354 (NC). We are not impressed by the argument and the ratio in the aforesaid decision, we are afraid, is not available to the respondent in the facts and circumstances of the present case, THE notice of escalation in price though given a little late, was much before the final order of allotment and execution of the hire purchase agreement by the respondent in favour of the appellant-Board. As already pointed out acceptance of this escalation without objection by the respondent constituted waiver on his part and he should not have been allowed to raise the dispute at that distance of time i.e., after about 6 or 8 years. It appears that the respondent has failed to pay in time the instalments of his loan and it required to intelligence to say that the complaint was a device to avoid payment of the balance amount due to the appellant-Board. THE very fact that the respondent had made frivolous claim of Rs. 60,000/- for some additional work allegedly carried out by him and Rs. 50,000/- as the amount spent by him on his treatment, is clear evidence of his mala fide intentions. His complaint deserved outright dismissal and the Forum below clearly fell into error in ignoring the glaring infirmities in the case of the respondent as pointed out hereinabove.

THIS appeal thus succeeds and is allowed. The impugned order is set aside and the complaint of the respondent is dismissed with costs Rs. 1,000/-. Appeal allowed.