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Judgment
PETITIONERS are the Orissa State Housing Board and their Project Engineer. They were the opposite parties before the District Consumer Disputes Redressal Forum, Rayagada, Orissa (District Forum for short) and the appellants before the Orissa State Consumer Disputes Redressal Forum, Cuttack (State Commission for short) respectively. Having suffered adverse orders from both the fora below, they have filed this revision petition and seek to challenge the order dated 30th December, 2005 of the State Commission passed in Appeal No. 1161 of 2003. Vide the said order, the State Commission has dismissed their appeal and has imposed a cost of Rs.5000/- on them.
FACTS of the case are that the petitioner-Orissa State Housing Board advertised for the allotment of built up houses at Rayagada. The respondent-complainant applied for a MIG flat vide her application dated 8th of January, 1997 along with a demand draft of Rs.25,000/- and house no. MIG-I-29 at Rayagada, Phase-II was allotted to her by the petitioner-Housing Board vide their letter dated 10th of January, 1997. The cost of the house was stated to be Rs.80,288/-. The petitioner-Housing Board asked the respondent-complainant to pay a further sum of Rs.5419/- towards the balance initial cost, which was paid by the respondent-complainant on 11th of April, 1997. There was some confusion with regard to this deposit, which, however, was sorted out later. After taking into account the initial deposits of Rs.25,000/- and Rs.5419/- (i.e. a total of Rs.30,419/-), an agreement was entered into between the petitioner-Housing Board and the respondent-complainant with regard to the payment of balance amount of Rs.49,869/-, according to which the respondent-complainant was to pay the balance cost of the house with interest @ 19.5% per annum over a period of 13 years on the basis of a quarterly premium/installment @ Rs.2654/- per quarter. This agreement was executed on 2nd of February, 2000. The agreement, apart from clearly stating that the respondent-complainant had deposited a sum of Rs.30,419/- and that the balance cost of Rs.49,869/- is to be paid as per the schedule attached to the agreement (Schedule-B : page 24 of the paper-book) mentioned that the quarterly installment of Rs.2654/- was to commence from the 31st of March, 2000 and was to culminate on the payment of the last quarterly premium on the 31st of December, 2012. However, the respondent-complainant paid only the first installment due on the 31st of March, 2000, with a delay of fortnight on the 15th of April, 2000 and thereafter did not take any step to pay further installments and became a defaulter. Interestingly, however, the respondent-complainant vide her letter dated 27th of March, 2002 addressed to the petitioner-Housing Board expressed her desire to make one time payment and, therefore, asked the petitioner-Housing Board to intimate her the amount required to be paid towards the full and final settlement of accounts with them. In response thereto, the petitioner-Housing Board vide their letter dated 12th of September, 2002 informed her that she would have to pay a sum of Rs.85,413/- towards the full and final settlement of the account calculated as on 30th of September, 2002. Thereafter, the respondent-complainant deposited a sum of Rs.70,000/- vide two different demand drafts of Rs.35,000/- each and in addition paid a sum of Rs.15,413/- in cash on the 27th of September, 2002. Even thereafter the house had not been handed over and she had to approach the District Forum by filing a consumer complaint, requesting for a direction to the petitioner-Housing Board to deliver the possession of the house and to award a sum of Rs.1,00,000/- towards mental agony and Rs.20,000/- towards expenses and interest @ 18% on the total amount paid from 8th of January, 1997 till payment. The petitioner-Housing Board contested the complaint. The District Forum, holding that as against the cost of Rs.80,288/-, the respondent-complainant has been made to pay Rs.1,18,486/- on various dates and, therefore, the petitioner-Housing Board has charged 38,198/- in excess of the final cost of Rs.80,288/-, directed them not only to deliver the possession of the house within a period of two months but also to refund the excess deposited amount of Rs.38,198/- with interest @ 18% per annum from 27th of September, 2002 till the payment and in addition awarded a compensation of Rs.10,000/- as also Rs.3000/- towards the cost of litigation. Aggrieved upon the order of the District Forum, the petitioner-Housing Board filed an appeal before the State Commission, who, as already stated above, dismissed their appeal with a cost of Rs.5000/-.
Aggrieved once again with the order of the State Commission, that the petitioner-Housing Board has filed this revision petition.
WE have heard the learned counsel for the parties and perused the records of the case very carefully. Facts with regard to the allotment of a MIG flat on receipt of the initial payment of Rs.25,000/- and Rs.5419/- is not in dispute. That an agreement was also entered into between the parties on 2nd of February, 2000 is admitted by the parties, which we have perused. Undoubtedly, while the cost of the house was assessed and has been stated to be Rs.80,288/-, the point made by learned counsel for the petitioner-Housing Board with which we agree is that this cost was applicable towards full and final settlement only if the entire amount had been paid or deposited by the allottee immediately after allotment or say within a month but when only the initial amount or the earnest money is paid and the balance amount is to be paid in installments, the cost of the house will not remain the same i.e. at the initial cost, which, in this case, was Rs.80,288/-. The agreement entered into between the parties states that interest @ 19.5% per annum would be charged on the unpaid balance cost of the house to be realized in installments. In this case, Schedule-B of the agreement (page 24 of the paper-book) clearly states that the respondent-complainant was to pay the balance amount in 52 quarterly installments @ Rs.2654/-. However, the respondent-complainant paid only the first quarterly installment on 15th April, 2000 and kept quiet for more than two years and suddenly on 27th of March, 2002 requested the petitioner-Housing Board to inform her about the amount to be paid in lump-sum as she was interested to pay the total amount due to her as a measure of full and final payment. It was in this background that the petitioner-Housing Board had calculated the arrears of defaulting installments which included the interest thereon and had communicated a figure of Rs.85,413/-. This amount had been duly deposited by the respondent-complainant through two demand drafts of Rs.35,000/- each on 24th of September, 2002 and the balance amount of Rs.15,413/- was paid in cash on the 27th of September, 2002. The fora below, thus, misdirected themselves to believe that the total cost of the house irrespective of the period over which it was to be paid will remain constant at Rs.80,288/- forgetting that if the payment is to be made in installments it ought to have an element of interest and failure of payment of such installments will further entail penal interest, as the petitioner-Housing Board operating on a "no-profit no loss" basis cannot be expected to invest its capital, which they borrow from other institutions and themselves pay interest thereon. As per the break up, a sum of Rs.33,068/- has been charged by the petitioner-Housing Board as interest @ 19.5% from 1st of April, 2000 to 27th of September, 2002 on the balance principal amount of Rs.49,869/- and a sum of Rs.5369/- has been charged as penal interest on the defaulted installments @ 18% per annum as per the agreement. Thus, it could not be said that the total payment of Rs.1,18,486/- made by the respondent-complainant has, in any way, been in excess which was legitimately due to the petitioner-Housing Board. In addition, we take note of the fact that the respondent-complainant had herself defaulted in making regular payment of the installments and had sought a one time settlement after entering into an agreement to resort to payment by installments. When the petitioner-Housing Board informed her about the amount required for such settlement, she deposited the full amount as asked for without any protest or reservation. Thus, insofar as the claim of the respondent-complainant that Rs.38,198/- have been charged in excess from her does not stand scrutiny. Both the fora below have erred in holding that the cost of the house was to remain constant even if the payments are made on deferred basis. Insofar as handing over possession of the house is concerned, it has been confirmed by the learned counsel for the petitioner-Housing Board that the respondent-complainant has since been handed over possession of the house and the counsel for the respondent-complainant confirms that the possession has since been taken over.
HOWEVER, the possession of the house despite the full payment of one time settlement has been unduly delayed and the respondent-complainant was handed over possession of the house only with the intervention of this Commission, which amounts to deficiency in service and to that extent while setting aside the order of the State Commission we hold that the petitioner-Housing Board will pay a compensation of Rs.10,000/- to the respondent-complainant. The petitioner-Housing Board is directed to make payment within two months from today, failing which it will attract an interest of 10% until its payment. The revision petition is disposed of in the above terms.