HIMACHAL PRADESH HOUSING & URBAN DEVELOPMENT AUTHORITY vs KANWAL ARORA

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 26.03.2012, passed by the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (hereinafter referred to as "the State Commission") in First Appeal No. 341/2009, Kanwal Arora vs. H.P. State Urban Development Authority (HIMUDA), vide which, while accepting the said appeal, the order passed by the District Consumer Disputes Redressal Forum, Shimla on 04.08.2009 in Consumer Complaint No. 210/2005, dismissing the said complaint, was set aside.

Briefly stated, the facts of the case are that the complainant Kanwal Arora made an application to the opposite party (OP) HIMUDA for allotment of a category-III flat under partial self-financing and partial hire purchase basis at housing colony Shoghi, Tehsil and District Shimla. As per the draw of flats, a category-III, flat no. 8, block-I, Housing Colony Shoghi for a tentative cost of Rs. 5,37,500/- was allotted to him. As per the schedule of payment, the complainant was required to deposit 15% of the tentative price of the flat as earnest money at the time of issuance of allotment letter and the balance amount was to be deposited in six half-yearly instalments of Rs. 53,750/- each, so as to make up 75% of the total cost by the time, the flat was supposed to be ready for being delivered to the appellant. The remaining amount of 25% was to be paid in instalments after the delivery of possession.

Thereafter, vide letter dated 13.12.2000, the complainant was told that the cost of the flat had been revised to Rs. 6,27,000/-. The OP also asked him vide its letter dated 13.12.2000 to take possession of the flat, but he found on his visit that the flat was unfit for human habitation, as there were so many deficiencies in construction of the same. He took up the matter with the OP, asking them to remove the said deficiencies, but they kept on demanding various kinds of payments from him rather than making attempts to remove the said defects. In his written version before the District Forum, the OP denied that there was any deficiency on their part. They also stated that the complaint was beyond limitation.

The District Forum, after considering the averments of the parties, dismissed the complaint as without merit. Being aggrieved against the said order of the District Forum, the complainant challenged the same by way of an appeal before the State Commission. The State Commission accepted the appeal, allowed the complaint and directed the petitioner/OP to refund an amount of Rs. 30,028/- paid by the complainant in excess of his liability with interest @ 9% per annum from the date of complaint to the date of payment. The State Commission also quashed the demand notice for Rs. 68,525/- made by the petitioner on the complainant. They further directed the OP to pay compensation of Rs. 20,000/- against mental harassment and Rs. 10,000/- as litigation cost. The State Commission also brought out that the petitioner/OP had intimated to the complainant vide their letter dated 20.06.2002 that all the defects pointed out by him had been removed, meaning thereby that defects were there in the flat at the time of offer of possession.

During arguments, the learned counsel for the petitioner stated that the order passed by the District Forum was based on a correct appreciation of facts and circumstances on record, while the view taken by the State Commission was erroneous. The learned counsel stated that the situation of the flat as on the date of offer of possession has to be seen for the purpose of calculating the interest payable on the outstanding amount by the complainant. The learned counsel further argued that the consumer complaint having been filed in the year 2005, whereas the possession of the flat was taken in the year 2002, was barred by limitation.

Since none came present for the respondent despite service of notice upon him, the respondent/complainant was ordered to be proceeded against ex-parte.

We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

The first issue that merits consideration in the matter is whether the consumer complaint filed in July, 2005 is barred by limitation. The main issue involved in the case relates to the demand for extra money made by the OP from the complainant through their letters sent from time to time. It has been stated in the complaint that the petitioner/OP sent various letters to the complainant in the years 2003, 2004 and 2005, making demands for payment of further money. In response, the complainant had also been writing letters to the petitioner/OP all these years. Since the correspondence has been exchanged during all these years, it cannot be stated, therefore, that the complaint was barred by limitation, as there was no finality to the issue. We, therefore, do not agree with the contention of the petitioner/OP that the complaint is not maintainable as per the provisions of Section 24A of the Consumer Protection Act, 1986.

The main issue involved in the case relates to the fact whether the demand raised by the petitioner/OP upon the complainant to pay certain sums of money is justified or not. In this regard, the impugned order passed by the State Commission makes a detailed analysis of the payments made by the complainants to the petitioner/OP from time to time. It is stated that at the time of taking the possession, the complainant had paid a sum of Rs. 93,144/- in excess of what was due from him on account of 75% of the cost of flat at the time of delivery of possession. He made further payments after obtaining the possession, but the end result was that he made payment of Rs. 6,72,138/- against his liability for Rs. 6,42,110/- and hence, in the process, he made an excess payment of Rs. 30,028/-. The main contention taken by the learned counsel for the petitioner/OP is that the position as on the date of offer of possession made in the year 2000 was to be seen. In this regard also, the State Commission has brought out that a large number of defects/deficiencies were there in the said flat, when the possession was offered to him. The petitioner/OP admitted in their letter dated 20.06.2002, addressed to the complainant that the defects etc. had been removed. The State Commission has also brought out that the defects as pointed out by the complainant in his letter dated 12.03.2002 were not minor. The direction given by the State Commission to the petitioner/OP to refund the amount of Rs. 30,028/- alongwith interest and also not to charge any additional amount is, therefore, in order. Moreover, in the body of the petition, the petitioners/OPs have not explained anywhere as to how much more amount was due from the complainant and what was the basis for their calculations. It is an established legal proposition that the scope of the revision petition is limited and this Commission is not required to go into the evidence regarding the facts of the case, in the exercise of the revisional jurisdiction. The main points to be seen at the time of hearing revision petition are as to whether there had been any jurisdictional error or material defect in the orders passed by the consumer fora below. In the present case, there is nothing on record to say that there is any illegality, irregularity or jurisdictional error in the order passed by the State Commission. The said order is, therefore, upheld and the Revision Petition is ordered to be dismissed, being without any merit. There shall be no order as to costs.