H.P. Housing And Urban Development Authority vs Arun Kapil

THIS revision petition has been filed by the petitioner against the order dated 26.11.2009 passed by the learned H.P. State Consumer Disputes Redressal Commission, Shimla (in short, ''the State Commission'') in Appeal No. 141 of 2007 - H.P. Housing Board v. Shri Arun Kapil by which while dismissing appeal, order of District forum allowing complaint was upheld.

BRIEF facts of the case are that complainant/respondent applied for MIG house on hire purchase basis and deposited Rs. 8,000/ - as earnest money. OP/petitioner allotted House No. 75 for a consideration of Rs. 6,82,000/ -. Inspite of repeated letters, defects were not removed in the house and near the house, but OP asked complainant to deposit 10% of cost of house and to execute hire purchase tenancy agreement. Complainant informed that 10% cost of house cannot be deposited till rest defects are removed. It was further alleged that OP vide letter dated 7.12.2001 informed complainant that defects cannot be removed and protection wall cannot be made on account of stay order by the Court. Complainant got prepared estimate for erection of protection wall and in completing that work incurred cost of Rs. 1,30,000/ -. It was further submitted that he had to stay in rented house and was paying Rs. 2,000/ - as rent. As defects were not removed, alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that complaint was barred by limitation. Allotment of flat was admitted and submitted that complainant was required to make payment as per schedule given in the allotment letter. Prior to allotment, complainant was asked to exercise choice in case he was interested in a particular house and allotment was made "as is where is basis". Complainant failed to pay 10% of the cost and failed to execute hire purchase tenancy agreement. Some minor defects were removed by OP, but the construction of protection wall was stayed by civil court. It was denied that there was threat by nallah. It was further submitted that complainant raised construction over the portion where the protection wall was to be constructed. It was further submitted that complainant took possession of the house which was worth living and complainant has not incurred any expenses and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs. 70,766/ - with 9% p.a. interest and further directed not to charge any penal interest on delayed payments and further allowed cost of Rs. 1,000/ -. Appeal filed by OP was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed. Heard learned Counsel for the parties and perused record.

LEARNED Counsel for the petitioner submitted that inspite of no defects in the house at the time of taking possession and inspite of complaint barred by limitation, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside and complaint be dismissed. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

IT is not disputed that complainant was allotted flat by OP vide allotment letter dated 30.9.2000 for a sum of Rs. 6,82,000/ - and complainant was required to deposit 10% of the cost of house within 30 days from the date of allotment and only after that possession of the house was to be given and complainant was required to execute hire purchase tenancy agreement. It is also not disputed that complainant did not deposit 10% cost on one or other pretext and OP raised demand along with interest and penal interest. Now, the core question to be decided is firstly whether any defects were required to be removed by OP in the house or outside the house and whether complaint was barred by limitation.

AS per Condition No. 5 attached with allotment letter, allotment was made "as is where is basis". In such circumstances, except removal of minor defects in the house, OP was not under an obligation to construct protection wall for alleged threat to the house due to nallah. Perusal of correspondence between the parties reveals that OP agreed to construct protection wall, but on account of stay issued by civil court, it could not be constructed. OP specifically pleaded that minor defects in the house were removed by OP. As per terms and conditions of allotment letter, complainant was under an obligation to make payment of 10% of the cost within 30 days from the date of allotment letter which complainant failed to deposit. Complainant should have deposited this cost and later on should have raised objection while taking possession of the house which was not done by complainant.

COMPLAINANT took possession of the house on 2.8.2002 in which it has specifically been stated that house was complete in all respects and no defects were pointed out at the time of taking possession. Learned Counsel for the respondent submitted that on the same day, i.e., 2.8.2002 letter pointing defects was given by complainant to OP, but receipt of that letter has been denied by OP. Learned District Forum and learned State Commission passed orders placing reliance on this letter, but this letter does not seem to have been delivered by complainant to OP. Had there been any defects in the house, he would have raised this objection in the possession letter itself. Hand written letter dated 2.8.2002 alleged to have been given by the complainant to OP neither bears stamp of OP''s office, nor it has been sent by UPC and merely by putting some signatures on this letter, it cannot be presumed that it was delivered by complainant to OP, particularly, when OP has denied receipt of this letter and other letters placed on record given by complainant to OP either bears stamp of OP or sent through UPC. In such circumstances, Fora below committed error in placing reliance on letter dated 2.8.2002. In alleged letter dated 2.8.2002 it has been mentioned that flooring at baramda was not proper, plaster at outer wall was broken, paint to outer door had toasted away and electrification work was not done. Complainant has not claimed any expenses for removal of these defects. Had these defects been in the house, he must have incurred expenses for removal of these defects and when he filed complaint for recovery of expenditure incurred on protection wall, why has he not claimed expenses incurred for removal of aforesaid defects which indicates that in fact there were no defects in the house at the time of taking possession and no expenditure was incurred by him for removal of these defects and letter dated 2.8.2002 was not given by complainant to OP.

PERUSAL of record further reveals that by letter dated 24.4.2004, Executive Engineer apprised to the Estate Manager that complainant has covered the area of place where protection wall was to be erected and has also made construction on adjoining private land and further submitted that construction work was for staircase and not for protection wall. Estimate submitted by complainant in support of his complaint reveals that it pertains to wall as well marble chips flooring, steps skirting stair, glass strips, paint which cannot be a bill for protection wall. Complainant has not claimed for repairs of other deficiencies mentioned in his alleged letter and in such circumstances, it can be observed that instead of protection wall, complainant took foundation work for staircase and expenses incurred in that work cannot be claimed by complainant from OP.

ADMITTEDLY , possession of house was given to complainant on 2.8.2002 and complaint has been filed on 9.3.2005 whereas complaint should have been filed within a period of two years from taking possession for removal of deficiencies. No correspondence has been placed by complainant on record after 2.8.2002 and in such circumstances, complaint filed by complainant was barred by limitation and learned State Commission wrongly observed that complaint was within limitation without any basis. In the light of aforesaid discussion, it becomes clear that complaint was barred by limitation and complainant has not incurred any expenses on alleged protection wall and was bound to pay instalments as per allotment letter and OP has not committed any error in charging penal interest, but learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal and revision petition is to be allowed.

LEARNED Counsel for the respondent has submitted that in trifle matters, parties should not approach to this Commission. He placed reliance on judgment of Hon''ble Apex Court in C.A. No. 6261 of 2012 - Gurgaon Gramin Bank Ltd. v. Smt. Khazani & Anr. in which it was observed that small matters should not be brought before Apex Court as in that case claim for buffalo was for Rs. 15,000/ - whereas Bank has incurred expenses of Rs. 12,950/ -. The aforesaid case is not applicable to the facts and circumstances of the present case. In the case in hand District Forum directed to pay Rs. 70,766/ - and also further directed not to charge penal interest which is also handsome amount.

CONSEQUENTLY , revision petition filed by the petitioner is allowed and order dated 26.11.2009 passed by the learned State Commission in Appeal No. 141 of 2007 - H.P. Housing Board v. Shri Arun Kapil and order of District Forum dated 20.3.2007 in CC No. 39 of 2005 - Arun Kapil v. Estate Manager, H.P. Housing Board, Shimla -2 is set aside and complaint stands dismissed with no order as to costs.