Raman Sharma vs Chandigarh Housing Board

-THIS is an appeal against the order dated 9.1.2004 of District Consumer Disputes Redressal Forum-II, U.T., Chandigarh for short hereinafter to be referred as District Forum-II, in Complaint Case No. 407 of 2001, Raman Sharma v. Chandigarh Housing Board.

THE case of the complainant is that he had applied for a flat under HIG (Lower) Housing Scheme, 1996 in Sector 38 (West), Chandigarh. As per provision of the scheme the flats were to be constructed and allotted on 70 per cent self-finance basis. This amount was to be paid as under: (i) Amount to be paid within 30 days from the date of issue of Acceptance and Demand Letter (ACD) -Rs. 1,00,000/-. (ii) First instalment within six months from the date of issue of ACD -Rs. 1,00,000/-. (iii) Second instalment within 12 months from the date of issue of ACD -Rs. 1,00,000/-. (iv) Third instalment within 18 months from the date of issue ACD -Rs. 1,00,000/-. (v) At the time of handing over of physical possession 70 per cent of the chargeable price minus the amount already paid. (vi) Balance of 30 per cent amount was to be paid in 60 equated monthly instalments with interest or if paid in lump sum within 30 days from the date of issue of allotment letter no interest was chargeable on this amount.

The O.P. No. 1-Chandigarh Housing Board (C.H.B., for short) had issued the ACD letter dated 29.1.1997. As per the complainant he made payment as per schedule. The total tentative price of the flat had been fixed at Rs. 7 lakhs whereas he had paid Rs. 4,40,000/- to the O.P. No. 1 up to 10.9.1998. This amount came to about 63 per cent of the tentative price. O.P. No. 1 issued a letter of allotment of the complainant dated 10.1.2000 in respect of flat No. 5763 (A), West of Sector 38, Chandigarh. The complainant avers that on taking possession of the flat he detected some deficiency in it and he pointed out these deficiencies to the higher authorities of C.H.B. and requested for their rectification. Some of the deficiencies were seepage into the wall of the flat, small holes in the chips flooring and one of the panel door was eaten into by the borer. As per the complainant a J.E. of the O.P. No. 1 visited the house at his instance and some filling work was done in the floor but after 3 months the floor came back to its original condition with similar holes. The complainant avers that he had to spend Rs. 2 lakhs in making the house worth living. He craved for compensation at the rate of Rs. 20,000/- for repairs done to the floor and at the rate of Rs. 3,000/- for the repairs done to the door. He has further alleged that he has been wrongfully charged interest amounting to Rs. 6,364.65. The complainant had sought other reliefs as well in the complaint but he gave up those claims and finally prayed only for two reliefs as under: (a) Rs. 23,000/- as reimbursement on account of chips and cost of door panel. (b) Wrongfully charging of interest amounting to Rs. 6,364.65.

O.P. No. 1 in their reply contended that the physical possession of the flat was handed over to the complainant by O.P. No. 1 on ''as is and where is basis'' and it was specifically laid down in Clause 4(ii) that Board would not entertain any complaint whatsoever regarding the property under any circumstances. The complainant had taken over the possession of the flat after inspecting the same and the flat was to his entire satisfaction. However, later on some defects were alleged in the workmanship and the C.H.B. as a gesture of goodwill got the minor defects pointed out by the complainant rectified to his entire satisfaction. It has also been stated by the O.P. No. 1 that the complainant at no stage in the complaint had taken the plea of seepage. It has also been pointed out that the first complaint was made by the complainant after 8 months of taking over the possession of the flat. It has also been stated that the complaint regarding panel door having been eaten by the borer is false because the doors provided by the C.H.B. were of ISI mark and were of standard specifications. As regard claiming of interest the C.H.B. has stated that the flat was allotted to the complainant as per terms of allotment letter, which has been duly accepted by the complainant. It is not denied that the complainant paid Rs. 1,95,000/- on 9.3.2000 but it has been denied that C.H.B. ever wrote any letter to the complainant that only this amount was due from him for payment.

AS per the C.H.B. the balance amount payable by the complainant was Rs. 1,98,270/- and since this amount was not paid within 30 days from the date of issue of allotment letter, the complainant was liable to pay interest on this amount and the same has been accordingly charged from the complainant. The complainant vide his letter dated 10.1.2000 requested for issuance of No Due Certificate and for converting the house form Hire Purchase to Cash Down Scheme. The OP immediately issued him N.O.C. on 13.1.2000 and simultaneously a letter intimating that Rs. 2,34,176/- were payable up to 8.2.2000, i.e., within 30 days of the issuance of allotment letter. However, the complainant deposited only Rs. 1,95,000/- by way of a pay order and that too on 9.3.2000. On his further request for issuance of No Due Certificate the complainant was informed that an amount of Rs. 7,010/- was still payable by him up to 31.3.2001. He did not pay this amount till 31.3.2001 and was, therefore, further informed that now amount payable up to 31.3.2001 was Rs. 7,144/-. It has been reiterated that the interest was correctly charged and there is no deficiency in service. The learned District Forum in its analysis of the complaint first dealt with the relief claimed by the complainant for wrongfully charging of interest of Rs. 6,364.65. The complainant case being that O.P. had issued him a letter stating that only Rs. 1,95,035/- were due from him in full and final settlement of the claim and he had paid the same amount by a pay order dated 9.3.2000 and since he had made the lump sum payment no interest is chargeable. The C.H.B. on the other hand has denied issuance of any such letter and have stated that an amount of Rs. 1,98,270/- was payable and since this amount was not paid within 30 days, i.e., up to 8.2.2000 it became liable to payment of interest at the rate of 17 per cent per annum w.e.f. 10.1.2000 till payment. Since, no letter from the C.H.B. indicating the amount of Rs. 1,95,035/- was produced by the complainant the learned District Forum accepted the version of the O.P. that no such letter was ever issued and the amount due from the complainant was Rs. 1,98,270/- and not Rs. 1,95,035/- as stated by the complainant. It also held that as per terms and conditions the complainant was liable to pay interest at the rate of 17 per cent per annum w.e.f. 10.1.2000 and that the interest amount of Rs. 6,364.65 has been rightly charged. It, therefore, held that there was no deficiency in service on this count.

COMING to the next plea of the complainant regarding deficiency in flooring and one panel board having been eaten by the borer the learned District Forum analysed two affidavits produced before it, i.e., one of Sh. K.K. Vashisth, Superintending Engineer (Retd.) produced by the complainant and other of Sh. Karnail Singh, Executive Engineer of C.H.B. It was inter alia mentioned in the affidavit of Sh. Karnail Singh that before handing over of the physical possession of the flat to the complainant a position booklet was supplied to the complainant and this booklet inter alia contained architectural plan of the flat, electric wiring diagram, layout for water supply and sewerage system etc. At page 1 of this booklet the allottee was specifically called upon to mention any defect noted by him in the register maintained for this purpose in the possession of office of the O.P. No. 1-C.H.B. It was also stated in that the Board will not be responsible if no entry was made in this register. However, physical possession of the dwelling unit was handed over to the complainant on 25.1.2000 wherein he certified that the possession had been taken over by him to his entire satisfaction. It is further alleged in the affidavit of Sh. Karnail Singh that the complainant was required to protect the floor while carrying out the own unfinished jobs in the flat after taking over the possession of the flat as the same were to be done under his own arrangements. It has been stated by Sh. Karnail Singh, XEN that while carrying out remaining work in the flat the floor was carelessly used by the works men while carrying out the remaining repairs etc. by carelessly and recklessly dragging of construction material on the floor, which has resulted in the damage to the floor. It has also been stated in the affidavit that appearance pinholes after his grinding in terrazzo floors is quite common and is within stipulated specifications. The learned District Forum going by the affidavit of Sh. Karnail Singh, XEN and taking cognizance of the fact that in spite of the physical possession of the flat having been taken over without any complaint the C.H.B. still as a goodwill gesture repaired the floor found that there is no deficiency on the part of C.H.B. in the construction of floor as the same has been done as per specifications. Regarding the damage to the board panel it was noticed by the learned District Forum that the affidavit of Sh. K.K. Vashisth produced by the complainant did not mention any word about the alleged eating of the board by borer. It, therefore, held that the door did not suffer from any such damage. Consequently, the complaint was dismissed leaving the parties to bear their own costs. Aggrieved by this order of the learned District Forum this appeal was filed by the complainant. The appeal having been taken on board, record of the complaint case was summoned from the District Forum-II, U.T. Chandigarh and notices were sent to the respondents. Mr. Raman Sharma, appellant/complainant appeared in person whereas none appeared for respondent No. 1 in spite of service. Mr. K.C. Sahu, Govt. Pleader appeared for respondent No. 2 initially, but on the date of arguments even he did not put in appearance, hence the case against respondent Nos. 1 and 2 was proceeded against ex parte. Mr. Raman Sharma, appellant/complainant submitted that it was the C.H.B. who had given 8.2.2000 as the date for making the lumpsum payment but interest has been charged w.e.f. 10.1.2000, i.e., date of allotment letter. He, therefore, submitted that the charging of interest up to 8.2.2000 is illegal. He also submitted that the floor suffered from the faults pointed out in the complaint and that he is entitled to claim compensation for this poor workmanship, which is a deficiency in service. We have gone through the record of the complaint case and heard the appellant.

AS regard the construction of floor, we find that there is nothing on record to indicate that the pinholes in the floor pointed out by the complainant are beyond specifications laid down by the C.H.B. Since, the C.H.B. had carried out repairs to the floor as a goodwill gesture and also the fact that the appearance of pinholes is within specification of the terrazzo floor, we find no deficiency on the part of the C.H.B. on this count. Regarding alleged damage to the panel door again there is nothing in evidence to prove this damage. Even the affidavit of Sh. K.K. Vashisth is totally silent about this issue, hence we find that the complainant had failed to establish this damage.

COMING to the charging of interest for delayed payment of Rs. 1,98,270/- paid as lump sum on 9.3.2000,it is uncontroverted that the complainant was to pay the balance lump sum amount aforesaid within 30 days of the issuance of the allotment letter, i.e., by 8.2.2000 but he eventually paid this amount on 9.3.2000. Under the circumstances and keeping in view the fact that the Consumer Protection Act, 1986 provides for better protection to the consumer, we are of the view that interest on delayed payment should have been charged w.e.f. 8.2.2000 and not from 10.1.2000. Consequently, we find that the order of the learned District Forum needs to be modified in this regard because the learned District Forum has allowed the O.P./C.H.B. to charge interest w.e.f. 10.1.2000. In view of the foregoing, the appeal is partly allowed. Chandigarh Housing Board is directed to refund interest charged from the complainant for the period from 10.1.2000 till 8.2.2000 along with interest at the rate of 6 per cent per annum from the date of receipt of this interest amount till payment. We further direct that this order be complied with within two months of the receipt of this order. Appeal regarding remaining relief is dismissed. The complaint is disposed of in aforesaid terms with parties left to bear their own costs of litigation. Appeal partly allowed.