HOUSING UNIT, TAMIL NADU HOUSING BOARD vs S. ARIVUKKODI

THE Executive Engineer, Madurai Housing Unit is the appellant. THE complainant''s case is thus: THE complainant was allotted under lease-cum-sale agreement a house in Ranimangammal Nagar Division, M.D.U. Colony : 3, Scheme 21 and Door No. HB 14. THE complainant has been in enjoyment of the allotment since 13.7.1988. All the statutory payments and other contractual payments have been made by the complainant. While so, a communication was received from the Executive Engineer and Administrative Officer on 28.7.1995 stating that a sum of Rs. 11,258/- has to be paid towards principal and a sum of Rs. 11,466/- has to be paid towards interest and this amount totalling to Rs. 22,704/- should be paid on or before 31.7.1995. Otherwise it would carry interest at 17% per annum. THE complainant objected to the said requisition and sent his reply in detail. According to the complainant, the complainant has paid in all a sum of Rs. 1,19,935/- whereas he is liable to pay only Rs. 1,15,680/- at Rs. 1,205/- for 96 months, @ Rs. 60/- per month for 42 months namely a sum of Rs. 2,520/- and @ Rs. 30/- per month for 54 months namely Rs. 1,620/-, all aggregating to Rs. 1,19,820/-. On account of the claim made by the Housing Board and their failure to respond to the detailed reply given by the complainant, the complainant has suffered mental agony and loss and, therefore, the complaint has been lodged claiming a sum of Rs. 1,000/- as compensation along with a sum of Rs. 115/- as payment made in excess.

THE opposite party contended that the complaint will not lie as it cannot be termed as a complaint nor the complainant can be construed as consumer within the provisions of the Consumer Protection Act. THE complainant has suppressed certain facts. THE complainant has agreed to pay the price that is to be ultimately fixed. He has entered into an agreement to obey by the terms and conditions of the allotment order. THE tentative price was fixed at Rs. 1,02,000/-. Out of which the complainant was directed to pay Rs. 35,000/- towards initial deposit. THE monthly instalments were fixed at Rs. 1,205/- which is repayable within a period of 8 years with interest at 14% and the allottee has also to pay a sum of Rs. 60/- per month towards maintenance charges and later on the complainant applied for a mutual exchange of the house whereupon the complainant was allotted HB No. 13 instead of HB 8 which the complainant took possession on 13.7.1988. THE final cost was determined for the house allotted to the complainant as per the direction of the Tamil Nadu Housing Board and, therefore, the opposite party sent a letter dated 28.7.1995 calling upon the complainant to pay the difference in one lumpsum without interest on or before 31.7.1995 or with interest at 13% per annum till date of payment. On 28.8.1995 the complainant wrote a letter expressing his inability to pay the amount. According to the working sheet, the complainant has to pay a total cost of Rs. 1,85,214/- as against the payment of Rs. 1,52,907/-. Subsequently the complainant has to pay the balance amount of Rs. 32,307/- which is still due from him. As and when it is paid, the Housing Board would willingly execute the sale deed. THE calculation given by (sic) was not admitted by the opposite party. THEre is no amount due to the complainant from the Housing Board. THEre is no deficiency in service and hence the complaint has to be dismissed. We are unable to accept the contention of the learned Counsel for the respondent/complainant that he is a consumer or that any deficiency in service. He has entered into a lease-cum-sale agreement pursuant to which he was originally allotted a house and later by way of exchange another house was allotted to him. He has taken possession of the same and is admittedly in the enjoyment of the same from July 1988. Therefore, his possession in pursuant to the lease-cum-sale agreement and he cannot but abide by the terms of such agreement. The agreement provides under Clause 14(a) and (b) thus: "14(a) The lessor agrees to sell the flat more particularly described in the schedule hereunder to the lessee for such price as the Chairman of the lessor may at any time in his sole discretion finally fix at which time the Chairman of the lessor is entitled to consider whether the price of the land acquired under the Land Acquisition Act, together with suitable modifications thereto by the local laws has become final by a conclusive adjudication thereon by the concerned Tribunals and Courts and also the cost of construction after the finalization of the accounts. The decision of the Chairman of the lessor as to the price of flat is final and binding on the lessee and the lessee agrees to purchase the flat from the lessor at the said price on the terms and conditions hereinafter mentioned.

(b) In the event of the lessee paying the tentative costs of the land and flat within the period of this lease, the lessor will execute the sale deed in respect of the schedule mentioned flat in his/her favour only after the expiry of a period of five years (from the date of possession) or after the final cost of the land and the flats are duly determined by the lessor whichever is later and subject to the condition that the allottee lessee is a member of the respective co-operative Housing Society of Chettinaickenpatty village, Dindigul area/colony and such co-operative society should take over the entire maintenance and other common amenities enjoyed by the lessee."

Therefore, having accepted such agreement and in part performance of the agreement having paid the amount due and having occupied the premises from 1988, the complainant cannot claim to be a consumer. However, the Housing Board has sent a notice to him requiring him to pay certain amounts. Whether he is liable to pay the said amount or not and whether the claim is in order or not cannot be questioned or considered in a Consumer Forum. After all a letter has been sent by the Housing Board claiming that amount to which admittedly the complainant has sent a reply. If any further steps are taken by the Housing Board pursuant to the letter, it will be only appropriate for the complainant to then move a Civil Forum for necessary reliefs. Merely on the basis of a letter, cause of action cannot be found to maintain a complaint before this Forum. It is open to the complainant either to comply with the letter or ignore it and if there are any consequences he has to meet the same. He cannot indirectly attempt to thwart any steps taken by the Housing Board to recover the amount by coming up with a complaint before the Consumer Forum. What he cannot achieve directly, he cannot be allowed to achieve indirectly. Therefore, the complaint is not maintainable and this Court cannot have any jurisdiction to entertain the same. The fixing up final price cannot be made an issue before the Consumer Forum. The complainant has simply asked for execution of sale deed. This is also governed by the conditions of the agreement. Clause 14(b) specifies the lessor will execute the sale deed in respect of the schedule mentioned flat in his/her favour only after the expiry of a period of five years from the date of possession or after the final cost of the land and the flat are duly determined by the lessor whichever is later and subject to the condition that the allottee/lessee is a member of the respective Co-operative Housing Society of Chettinaickenpatty village, Dindigul. The final price has only been now fixed by the opposite party. The condition reads that the lessor will execute the sale deed only after the expiry of a period of five years from the date of possession or after the final cost of the land and the flat are duly determined by the lessor whichever is later. Here admittedly the final cost has not been fixed till the date of the complaint. Perhaps the letter sent by the opposite party was only stating about the final cost and if and when the said amount is paid, definitely the opposite party is obliged to execute the sale deed. Without paying the same, the complainant cannot ask for the execution of the sale deed. The opposite party has stated that the Housing Board is ready and willing to execute the sale deed provided the complainant remits the amount. When the complainant has not remitted the amount and when the agreement under Clause 14(b) clearly provides so, the complainant cannot without complying with the conditions of the lease-cum-sale agreement rush to the Court. Therefore, in such circumstances, we are of the view that the complaint is premature and that it is not maintainable and, therefore, it is liable to be dismissed. Consequently the appeal is allowed but in the circumstances without costs. The order of the lower Forum will stand set aside. However, since the Housing Board, opposite party/appellant, have expressed their willingness to execute the sale deed on payment of 32,307/-, the opposite party is directed to execute the sale deed as and when the said amount is remitted by the complainant without further delay in the matter. Appeal allowed.