TAMIL NADU HOUSING BOARD vs J. VICTOR

-THE complainant has applied for allotment of a flat. He purchased a flat bearing No. C-372 at Anna Nagar, Madurai under outright purchase scheme on 31.5.1988. Later, the Tamil Nadu Housing Board permitted the complainant to avail loan from BHEL for the said building which was ready. At the time of allotment, the cost was fixed at Rs. 96,500/-. THE complainant after obtaining No Objection Certificate from the opposite party mortgaged the said property with BHEL and paid the entire cost of Rs. 96,500/-. THEre was an obligation on the part of the opposite party to execute the sale deed after lapse of 5 years. After completion of 5 years, the complainant wrote a letter on 2.6.1994 demanding execution of the sale deed. But there was no response. While so, the opposite party sent a reply on 6.10.1997 with working sheet demanding the complainant to pay a sum of Rs. 56,598/-. THEy calculated under the head of capitalization a sum of Rs. 22,167/- and interest for the said sum from May 1988 to October 1997 at the rate of 14%, a sum of Rs. 29,483/- and interest on Rs. 1,500/- from May 1988 to October 1988, a sum of Rs. 105/- and maintenance charges from September 1988 to October 1997, as sum of Rs. 6,600/- and thus demanded a total sum of Rs. 56,598/-. THE opposite party is not legally entitled to claim such a huge amount. THE capitalization and interest on capitalization will not arise in an outright flat purchase. THE complainant without prejudice to the contention deposited the sum of Rs. 58,862/- under protest to the opposite party and later on the opposite party executed the registered sale deed on 27.2.1998. THE complainant demanded the return of the said amount on the basis that the collection made by the opposite party is against the law and that it is also barred by limitation. THE opposite party failed to submit any accounts or with explanations or details to the complainant. THE failure of the opposite party to execute the sale deed for several years after effecting payment amounts to gross deficiency in service. THErefore, the opposite party is liable to refund the sum of Rs. 58,862/-. THE complainant, therefore, prays for a direction to the opposite party for the refund or payment of Rs. 58,862/- with interest at 12%.

THE opposite party filed their version containing the following averments. THE complainant is not a consumer. THE complainant applied for alloment of a HIG "C" Type flat at Anna Nagar. He agreed to pay the price that may be ultimately fixed by the Chairman of the Tamil Nadu Housing Board, Chennai. He further agreed to abide by the rules and regulations and circulars and orders. THE complainant was allotted a HIG ''C'' Flat No. 372 II Floor at Anna Nagar. In the lease-cum-sale agreement, the selling price of the flat was fixed at Rs.95,000/-. THE allotment was made under outright purchase system and not under hire purchase system. Hence, the complainant was bound to remit the entire sale price of Rs. 95,000/- within a month from the date of the allotment order. THE complainant received the allotment order on 24.5.1988. THE complainant was also requested to pay a sum of Rs. 1,500/- towards the cost of compound wall. THE complainant wanted to avail a housing loan from the Department and requested the Housing Board to issue A & B Certificate for availing the loan. THErefore, the complainant was directed to remit Rs. 2,250/- whereupon necessary certificates were furnished to the complainant. THE complainant was also informed by letter dated 31.5.1988 to pay the full cost on or before 31.7.1988. THE complainant executed the outright purchase agreement. He did not remit the full costs on or before 31.7.1988. THE opposite party wrote a letter stating that the flat was ready for occupation from November, 1987 onwards and the petitioner has been requested frequently to take over the flat. Again he was informed that he should take possession of the flat before 20.9.1988. THE opposite party wrote another letter on 5.9.1998 requesting the complainant to pay a sum of Rs. 2,017/- towards balance of the cost which was sent by the complainant on 14.9.1988. THE final cost of the flat allotted will be determined later on by the Chairman of the Tamil Nadu Housing Board, Chennai. Since the flat was made ready in November, 1987, interest had to be calculated from that date when the flat was ready for occupation till the date when the key received by the complainant. THE key order was received by the complainant on 14.9.1988. THErefore, from November 1987 to September 1988, the complainant is liable to pay interest. According to the working sheet the complainant has to pay Rs. 56,598/- being the balance including interest, penal interest and maintenance charges upto October, 1997. THE complainant has remitted the said amount on 11.2.1998 and thus the entire due by the complainant to the opposite party was paid only on 11.2.1998. While so, on 6.10.1997, the opposite party had written a letter requesting the complainant to pay Rs. 56,598/- towards the balance of the cost of the flat on or before 31.10.1997. In spite of that the complainant remitted the amount only on 11.2.1998. It is not true to say that the cost of the flat was fixed at Rs. 96,500/-. According to the condition No. 17, the outright purchase agreement, the sale deed will be issued in favour of the complainant only after the expiry of the period of five years from the date of taking possession or after the final cost of the land and the costs of construction of the flat are duly determined by the Housing Board. THErefore, in accordance with the above condition, the complainant can claim the execution of the sale deed only after 5 years and after the payment of the amount due to the Housing Board. THE complainant admittedly paid the entire amount on 11.2.1998. It was also not known whether the complainant was the member of the Co-operative Housing Building Society of Anna Nagar. Thus the complainant failed to satisfy the requirement of the condition No. 17 of the outright purchase agreement. THE allegations that the complainant was liable to pay only Rs. 22,167/- is false. THE rate of interest as well as the period for which the interest was calculated is proper and legal and in accordance with the rules of the Tamil Nadu Housing Board. THE capitalization and the interest on the capitalization will be done from the date the house was made ready for occupation. THE opposite party has executed and registered sale deed in respect of the flat allotted to the complainant as per the rules and regulations of the Housing Board and the original sale deed was received by the complainant on 26.2.1998. Further, the name transfer had also been effected in the name of the complainant. Sketch has also been handed over to the complainant. THE complaint is barred by limitation. THEre is no deficiency in service nor any unfair trade practice on the part of the opposite party. THE complainant is not entitled to Rs. 58,862/-. THE Consumer Forum has no jurisdiction. THE proper remedy of the complainant is only to approach a Civil Court, if it becomes necessary. On the above pleadings and after perusing the records, the lower Forum passed an order on 14.12.1999 directing the Housing Board to pay a sum of Rs. 58,862/- with interest at 12% per annum and pay a sum of Rs. 4,000/- towards mental agony and torture and Rs. 1,000/- towards costs. On failure, the opposite party was also directed to pay interest at 18% per annum on the sum of Rs. 5,000/-.

Aggrieved by the order, the Housing Board has now come forward with this appeal.

EX. A1 makes it clear that the selling price of the flat including cost of land is Rs. 95,000/- and that a "C" Type Flat No. 372 in II Floor at A.A. Nagar has been allotted to the complainant and that he should execute a lease-cum-sale agreement in favour of the Housing Board. This letter has been issued in the month of May, 1988. The complainant paid Rs. 61,500/- on 1.9.1988 and another sum of Rs. 35,000/- on 29.8.1988. The agreement executed by the complainant in favour of the opposite party specifies that one quarter of the tentative cost of the flat amounting to Rs. 96,500/- has been paid by the purchaser in one lumpsum. Clause 17 specifies that the vendor will execute the sale deed in favour of the purchaser 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 cost of constructions of the flat are duly determined by the vendor whichever is later and the same is paid by the purchaser and subject to the condition that the purchaser is a member of the Co-operative Housing Society of Anna Nagar. Clause 19 further specifies that after the finalization of the total cost of construction of the flat and value of the land in accordance with the award of compensation declared by the Tribunals and Courts, the purchaser shall pay to the vendor on demand before the registration of the sale deed the difference between the amount already paid by the purchaser as per Clause 2 in the agreement and the price amount finally fixed by the Chairman of the vendor. The agreement also provides that the purchaser is bound to pay the maintenance charges. The agreement also provides for charging of interest on any amount becoming over due. The complainant herein has, of course, paid a cost of Rs. 96,500/-. He was required to pay a sum of Rs. 56,598/- calculated as on 31.10.1997 being the balance of the cost of the flat which included the capitalisation from October 1986 to Spetember 1988 and interest at 14% on the said amount from October 1988 and maintenance charges. This was also paid up by the complainant in the year 1998. The sale deed has also been executed as demanded by the complainant. The sum of Rs. 58,862/- was paid by the complainant on 11.2.1998 whereupon the opposite party executed the sale deed. The copy of the sale deed has been produced and marked as EX. B7. We have already pointed out that the agreement provides under Clause 2 that until the amount of the total cost of construction and the value of the flat is finally fixed and the price of the flat is finally determined, the purchaser shall pay to the vendor a tenative price of Rs. 96,500/-. Clause 12 provides for payment of interest at 14% per annum to the vendor. Clause 16 provides that the vendor agrees to sell the flat more particularly described in the schedule to the purchaser for such price as the Chairman of the vendor may at any time in his sole discretion fix it. Further it provides that the decision of the Chairman of the vendor as to price of the flat will be final and binding on the purchaser and that the purchaser agrees to purchase the flat from the vendor at the said the price on the terms and conditions stated in the agreement. Clause 17 provides that the vendor will execute the sale deed in favour of the purchaser only after the expiry of a period of 5 years from the date of possession or after the final cost of the land and the cost of the construction of the flat are duly determined by the vendor whichever is later. Now by filing the present claim, the claimant is only trying to question his liability to pay the amount. He is questioning the nature of the agreement that has been entered into by the parties. In other words, he is disputing the quantum of liability. In this matter on hand, he had paid the amount as claimed. He was given possession of the property. A sale deed has also been executed. In such context at this stage, there is no subsisting contract between the parties. The contract has been completed as having been performed by the parties as per the terms and conditions of the agreement between the parties. There is nothing more that remains to be done either by the Housing Board or by the complainant purusant to the contract. If the complainant wants to question that he is levied with any excess payment and then that the act of the opposite party in demanding an excess sum of Rs. 58,862/- is wrong then the remedy of the complainant is to move a Civil Court where alone the rights and liabilities of the parties arising from the agreement can be gone into and whether the demand of the Housing Board for payment of Rs. 58,862/- was in order and whether the complainant was liable to pay that amount can be decided with reference to the clauses in the agreement and conditions of the purchase. As on the date when the complaint was filed, there was no subsisting contract between the parties. There was no buyer or seller relationship. There was nothing that remains to be done by the Housing Board to the complainant by way of service or by way of any activities pursuant to the contract, therefore, in such context, when, if at all, the complainant feels that he has made any overpayment or excess payment made by him was not justified or that it is opposed to the terms and conditions of the contract, the remedy would be only to knock at the doors of the Civil Court where alone all the intricate questions can be thrashed out and decided. Further it may entail adducing the oral evidence on either side. Therefore, the dispute being one which can in the circumstances be decided only after a full-fledged trial. But in a proceeding before the Consumer Court which is summary in nature where it is not possible to consider the intricate questions of law and facts and where the necessity to adduce oral evidence is minimal, the complaint cannot be maintained under this Act simply by stating that there has been deficiency on the part of the opposite party, Housing Board. As we have already pointed out that the conditions make it clear that the sum of Rs. 96,500/- was fixed only at a tentative cost and the fixing of the final price was left to the Chairman of the Tamil Nadu Housing Board and whatever the price fixed by the Chairman would be a final price and has been accepted by the parties by reason of the conditions in the agreement. Therefore, in that view of the matter, it cannot be stated that there is any deficiency in service so as to invoke the jurisdiction of the Consumer Forum. Hence, it follows that the complaint deserves to be dismissed.

IN the result, this appeal is allowed but in the circumstances without costs. The order of the lower Forum is hereby set aside. Appeal allowed.