HOUSING COMMISSIONER KARNATAKA vs K.A. NAGAMANI

The respondent / complainant applied to the petitioner for the allotment of the HIG-B Flat under Self Financing Housing Scheme at Kengeri, Bangalore and flat No.116, Type B on the first floor was allotted to her, vide letter dated 25.3.1992. A Provisional Intimation of Allotment dated 23.4.1992 was thereafter sent to the complainant, intimating the provisional cost of the flat and the stages of payment. The total amount referred in the aforesaid letter dated 23.4.1992 came to Rs.3,15,000/-. The complainant paid Rs.2,67,750/- to the petitioner in four instalments, including the registration fee. Vide letter dated 24.6.1995, the complainant was informed that in place of the previously allotted plot she had been allotted flat No.64 HIG-B5 in Block No.61 at a cost of Rs.5,90,000/-. Since the complainant was not in a position to pay the additional amount demanded from her, she requested the petitioner to return the amount paid by her. The petitioner refunded the amount after deducting a sum of Rs.3,937/-. The complainant / respondent sought refund of the balance amount of Rs.3,937/- along with interest @ 27% per annum on the deposit of Rs.2,67,750/- from the date of each payment. She also sought compensation. Her claim having not been paid, she filed a consumer complaint before the concerned District Forum, which directed the petitioner Board to pay interest of 12% per annum on Rs.2,67,750/- from the date of the deposit till the date of realization. The petitioner was also directed to refund the amount of Rs.3,937/-to the complainant / respondent. Being aggrieved from the order passed by the District Forum, the complainant preferred an appeal before the concerned State Commission. The said appeal having been dismissed, she approached this Commission by way of a revision petition. The revision petition also having been dismissed, she approached the Hon''ble Supreme Court by way of SLP (C) petition No.35226-35227 of 2011, which was later converted into Civil Appeal No. 6730-6731 of 2012. The appeal was disposed of vide order dated 19.9.2001. The operative part of the said order reads as under:

"26. For the reasons aforesaid, we allow the appeals and pass the following order:

The respondent is directed to pay the appellant - complainant interest at the rate of 18% per annum on Rs.2,67,750/- from the date of its respective deposit till the date of realization with further direction to refund the amount of Rs.3,937/- to her, as directed by the Consumer Forum;

The respondent is directed to pay the appellant - complainant further sum of Rs.50,000/- as compensation for deficiency in service on their part;

The respondent is also directed to pay the appellant - complainant a sum of Rs.20,000/- towards cost of the litigation incurred by her.

The aforesaid amount be paid in favour of the appellant - complainant on an early date but not later than four weeks from the date of receipt / production of copy of this order. The orders passed by the State Commission and the National Commission are set aside and the order passed by the District Forum stands modified to the extent above".

The complainant filed Execution Petition No.2/2014 before the concerned District Forum, seeking execution of the order passed in her complaint. The District Forum vide its order dated 16.8.2014 directed the petitioner to pay a sum of Rs.1,07,057/- to the complainant as on 14.8.2014. Being aggrieved from the said order, the complainant approached the concerned State Commission by way of an appeal. The State Commission vide impugned order dated 01.3.2016, directed as under: "The above appeal is allowed setting aside the impugned order dated 16.8.2014 passed on the memo of calculation filed by both the parties in Execution Petition No.2/2014 on the file of IV Addl. Bangalore Urban Consumer Disputes Redressal Forum, Bangalore and it is held that the amounts already paid by the Jdr. Will have to be first appropriated towards interest and accordingly, a sum of Rs.2,67,750/- paid by the Jdr. is appropriated towards interest. Hence, the matter is remanded to the District Forum directing both the appellant / dhr. as well as respondent / jdr. to file their respective memo of calculations afresh and the District Forum is directed to adjudicate the matter afresh by holding that whatever amount paid is first appropriated towards interest payable on the respective date and payment".

Being aggrieved from the aforesaid order of the State Commission dated 01.3.2016, the petitioner is before this Commission, by way of this revision petition.

Vide order dated 19.10.2016, this Commission directed the Housing Commissioner of the Karnataka Board to file an affidavit giving the following information: (1) On which date, interest in terms of the order of the Hon''ble Supreme Court was paid to the complainant and how the said interest was calculated;

(2) On which date, the principal amount of Rs.3,937/- was paid to the complainant in terms of the aforesaid order of the Hon''ble Supreme Court;

(3) On which date, compensation quantified at Rs.5,000/- was paid to the complainant;

(4) On which date, cost of litigation quantified at Rs.20,000/- was paid to the complainant.

In compliance of the aforesaid order, an affidavit has been filed by the Karnataka Housing Board. The said affidavit, to the extent it is relevant, reads as under:

"2. That the amounts directed to be paid to the Respondent in terms of the judgment dated 19.9.2012, passed by the Hon''ble Supreme Court of the India, in CA No.6730-31/2012 were paid to the Respondent as per the Calculation & Payment Sheet at Annexure A. The said calculation sheet at Annexure A may also be read as part and parcel of the present affidavit".

The following is the calculation of interest given by the petitioner Board:

Sl. No Particulars Manner of calculation and amount (I) IV Additional District Consumer Disputes Redressal Forum, Bangalore, Complaint No.2521/2006 dated 21.12.2006

1 Interest at the rate of 18% p.a. on Rs.2,67,750/-

Date of amount received from application Date of Refunded to the applicant Amount received from applicant Rate of interest No. of days Interest amount

12.5.1991 21.10.2005 15,750 12% 5276 27,320/-

02.6.1992 21.10.2005 94,500 12% 4889 1,51,894

02.9.1992 21.10.2005 78.750 12% 4797 1,24,196

04.12.92 21.10.2005 78,750 12% 4704 1,21,788

2,67,750

4,25,198

Less: interest paid on 21.6.2007 Ch. No. 000167 (included initial deposit of Rs.3,937/-)... 4,17,754

(II) The Hon''ble Supreme Court, New Delhi, Civil Appeal No.6730-6731 of 2012 dated 19.9.2012

Date of amount received from applicant Date of refunded to the applicant Amount received from applicant Rate of interest No. of days Interest Amount

12.5.1991 21.10.2005 15,750/- 18% 5276 40,979/-

02.6.1992 21.10.2005 94,500/- 18% 4889 2,27,841/-

02.9.1992 21.10.2005 78,750/- 18% 4797 1,86,294/-

04.12.1992 21.10.2005 78,750/- 18% 4704 1,82,683/-

2,67,750/-

6,37,797/-

interest paid at the rate of 12% of Rs. 4,17,754/- (include initial deposit of Rs.3937)

Ch. No.000167 dated 21.6.2007

Interest paid at rate 18% of Rs.3,43,558/-

(Rs.50,000/- companion and

Rs.20000 Litigation cost included)

Total Interest paid Rs.7,61,312/-

(III) IV Additional District Consumer Disputes Redressal Forum, Bangalore, Complaint No.2521/2006 dated 21.12.2006 (in EP 2/2014)

As per order dated 16.8.2014 the KHB has paid of Rs.1,07,057/- Ch. 690557 dated 09.9.2014.

Principal amount of Rs.3,937/- was paid back to the Respondent Date of receipt by the complainant Smt. K.A. nagamani from the KHB vide Ch. No.000167 dated 21.6.2007

Amount of Rs.50,000/- payable to the respondent as per the judgment of the Hon''ble Supreme Court of India Rs.3,43,558/- vide Ch. No.553156 dated 02.2.2013 (included Rs.50,00/- towards compensation amount)

Amount of Rs.20,000/- payable to the respondent as per the judgment of the Hon''ble Supreme Court of India Rs.3,43,558/- vide ch. No.553156 dated 2.2.2013 (included Rs.20,000/- towards cost of litigation charges)

As per the aforesaid calculation, a sum of Rs.4,17,754/- was paid to the complainant vide cheque dated 21.6.2007 and that included initial deposit of Rs.3,937/-. Rs.3,43,558/- were paid to her vide cheque dated 2.2.2003 which included Rs.50,000/- towards payment of the compensation and Rs.20,000/- towards cost of litigation. A sum of Rs.1,07,057/- was paid to her vide cheque dated 09.9.2014 in terms of the order of the District Forum.

The only issue which arises for consideration in this revision petition is as to whether the payment of Rs.2,63,813/- made to the complainant vide cheque dated 21.10.2005 could be appropriated by her towards interest on the amount which she had deposited with the petitioner Board or the aforesaid amount was paid and appropriated towards payment of the principal amount of Rs.2,67,750/-, which the complainant had deposited with the petitioner Board. The stand taken by the complainant / respondent before this Commission is that the aforesaid amount was adjusted by her towards the payment of the interest on the amount deposited by her with the petitioner Board. The aforesaid stand taken by the complainant, however, is contrary to the stand taken by her in the consumer complaint and therefore cannot be accepted. The consumer complaint, to the extent it is relevant in this regard reads as under: "... After making voluminous correspondence the alternative allotment is made after a lapse of five years by the respondent which shows the deficiency in service and negligence on the part of the respondent in rendering service to the customers like the complainant.

Therefore, she requested the respondent to refund the entire sum deposited with the respondent i.e. Rs.2,67,750/- with the interest at the rate of 27% p.a. from the dates of payments made from at each stage till date of refund. A copy of the representation date 19.3.2005 is produced and marked as Annexure C-16.

The complainant further submits that in response to the above representation the respondent has sent a cheque No.577614 dated 21.10.2005 for Rs.2,63,813/- to the name of the complainant. Copies of the cheque and other documents are produced and marked as Annexure C-17.

The complainant submits that the complainant has further submitted a representation dated 29.12.2005 by narrating her entire case and mentioning that the aforesaid cheque has been received without covering letter for Rs.2,63,813/- and balance deposit amount of Rs.3,937/- is still with the respondent and requested the respondent to pay the interest at the rate of 27% p.a. from the dates mentioned against each figure and to refund the balance amount of Rs.3937/-. A copy of the said representation is produced and marked as Annexure C-18".

The prayer made in the complaint reads as under:

"Whereof, the complainant prays that this Hon''ble Forum be pleased to direct the opposite party:

To refund Rs.3,937/- towards the deposit lying with the opposite party and to pay the interest at the rate of 27% p.a. from the date mentioned against each figure for the deposit amount of Rs.2,67,750/-;

To pay the cost of this proceedings;

Any other order or directions as deemed fit by this Hon''ble Forum in the interest of justice and equity".

It is evident from a perusal of the above referred extracts from the complaint that the amount of Rs.2,63,813/- was adjusted by the complainant towards part payment of the principal amount of Rs.2,67,750/- deposited by her and that is why she made a representation, seeking balance deposited amount of Rs.3,937/- and interest @ 27% p.a. Had the complainant adjusted the aforesaid cheque of Rs.2,63,813/- towards payment of the interest claimed by her, she would have stated so in the complaint and would not have asked for the balance deposit of Rs.3,937/- in addition to interest @ 27% p.a. Therefore, I find no merit in the stand taken by the respondent / complainant and hold that the payment of Rs.2,63,813/- vide cheque dated 21.10.2055 was adjusted by the complainant towards part payment of the principal deposit of Rs.2,67,750/-. Therefore, in view of the order of the Hon''ble Supreme Court she was entitled only to:

Interest @ 18% p.a. from the date of ach deposit on the principal amount of Rs.2,67,750/- till the date on which the amount of Rs.2,63,813/- was refunded to her;

Balance principal amount of Rs.3,937/-;

Interest @ 18% per annum on the balance principal amount of Rs.3,937/-;

Compensation amount of Rs.50,000/- and

Cost of litigation amounting to Rs.20,000/-.

Though as per the affidavit filed by the Housing Commissioner of Karnataka Housing Board, the aforesaid amounts stand paid to the complainant, the learned counsel for the petitioner stated during the course of hearing that there being some error in the calculation, an additional amount of Rs.1182/- is payable to the complainant / respondent. The aforesaid amount of Rs.1182/- shall be paid to her within four weeks from today.

The impugned order therefore stands modified and the revision petition stands disposed of accordingly.