VAISHALI SOOD vs H P HOUSING BOARD

THIS case has a chequered history. A complaint was filed by Vaishali Sood, hereinafter referred to as the complainant before the District Forum, Shimla Camp at Solan, vide C. C. No. 77/97 dated 19. 7. 1997. She alleged deficiency in service and sought relief against the then Housing Board, (now known as H. P. Housing and Urban Development Authority), hereinafter referred to the Board. This complaint was dismissed on 29. 9. 2001, being a complicated case not possible to be tried in a summary manner. Liberty was reserved to the complainant to appraoch the appropriate Civil Court for redressal of her grievances. This order of the District Forum, Solan was challenged by her before this Commission in Appeal No. 309 of 2001. Vide its order dated 23. 7. 2002, this Commission affirmed the order of District Forum, Solan. Against the order of the H. P. State Consumer Commission dated 23. 7. 2002, complainant went in Revision before the National Commission, in Revision Petition No. 2377 of 2002. National Commission vide its order dated 1. 4. 2003 set aside the order of District Forum, Solan dated 29. 9. 2001 as well as of this Commission dated 23. 7. 2002. National Commission directed the District Forum, Solan to decide the case on merits as per law.

DISTRICT Forum, Shimla Camp at Solan decided the complaint afresh on merits vide its order dated 24. 9. 2004. Complaint was partly allowed with the following directions to the Board: "accordingly, we hereby direct the opposite party-Board to pay interest on the amount of Rs. 1,24,257 at the rate of 12% per annum with effect from 3. 4. 1995 till 10. 7. 1996. The cost of litigation is quantified at Rs. 1,500. These payments be made by the opposite party Board to the complainant within a period of forty-five days from the date of receipt of copy of this order. " Both, i. e. , the complainant as well as the Board are aggrieved from the order of the District Forum below and have filed two appeals. Appeal of the complainant is Appeal No. 309/2004 and of the Board is Appeal No. 313/2004.

Since, both these appeals have arisen from the same order, therefore, they were heard together and are being disposed of by this common order. What was urged by complainant in her appeal as well as on behalf of the Board in its appeal were the pleas while contesting the claim of each other in reply.

ADMITTED facts of the case between parties are that in response to an advertisement floated by the then H. P. Housing Board complainant applied for allotment of a HIG flat in Solan in May 1990. One flat was allotted to her in 1994. Certain amounts have admittedly been paid by her and for payment of balance amount, Hire Purchase Tenancy Agreement was executed between the parties on 3. 4. 1995 and the possession was given to the complainant on 10. 7. 1996 vide Annexure R-13 and physical possession thereof was handed over to her on 11. 7. 1996 vide Annexure R-16. It is further admitted case of the parties, that the complainant has deposited a sum of Rs. 1,24,257 till 10. 7. 1996 towards part payment of the flat in question. It is also admitted that as against the total cost of Rs. 2,16,320 as cost of the flat, after adjustment of the amount already deposited till 10. 7. 1996 balance amount payable by the complainant was Rs. 92,063 to be paid by her at the time of execution of agreement. As per the agreement, this amount was payable by her in 168 monthly instalments i. e. , in 14 years, each instalment being of Rs. 2,081. It is further admitted that the possession of the flat was to be handed over on 3. 4. 1995 when the Hire Purchase Agreement was executed. Whereas in fact possession was given on 11. 7. 1996 i. e. , after a delay of 15 months and 7 days. As noted above, case was remanded back by the National Commission on 1. 4. 2003 to the District Forum, Solan for deciding it on merits as per law. Forum below decided the Complaint No. 77/1997 afresh, on 24. 9. 2004 and rendered the impugned order. We have heard the complainant in detail who argued her case personally as also the learned Counsel for the Board and have gone through the record meticulously.

COMPLAINANT confined her arguments on the following points : (a) The rate of interest be enhanced from 12% to 18%; (b) Balance payment of Rs. 13,494 towards part payment of the flat be adjusted against the interest payable by the HIMUDA to her and surplus if any be got paid to her from the Board after calculation; (c) Compensation of Rs. 25,000 may be ordered to be paid to her by the HIMUDA for mental harassment. (d) Enhancement of litigation cost from Rs. 1,500 to Rs. 15,000. (a) and (b)

Complainant who argued the matter in person forcefully urged that the Forum below had allowed her interest on Rs. 1,24,257 at the rate of only 12%, whereas the Board itself had been charging interest from her at the rate of 18%. Therefore, the interest needs to be enhanced in her favour to 18% on this amount. Mr. V. B. Verma, learned Counsel for Board contested this claim by submitting that award of 12% interest is in line with the earlier decisions of this Commission as well as that of the National Commission. He further urged that the Forum below had wrongly allowed her interest from 3. 4. 1995 to 10. 7. 1996, because this Commission in the case of Ashwani Kumar Singla v. H. P. Housing Board, O. C. No. 3/1994, decided on 23. 9. 1994, allowed interest from 3. 4. 1996 to 10. 7. 1996 only after allowing grace period of one year.

EXAMINATION of this decision reveals that allowing one year grace period was adopted in cases where as per advertisement "tentative date" of handing even physical possession was held out but was not adhered to. In such cases for calculating interest on the delayed period, one year grace period was allowed. In such like cases there was no question of Hire Purchase Tenancy Agreement, as in the present case. But facts of the case in hand are quite different. In the instant case, the advertisement was issued in April/may, 1990 and earnest money of Rs. 10,000 was deposited on 17. 5. 1990. The date of possession was on the execution of the Hire Purchase Tenancy Agreement between the parties. This agreement was executed between the parties on 3. 4. 1995 (Annexure C-5 ). As per Clause (1) of this agreement, possession was to be handed over to the complainant on 3. 4. 1995 itself. Admittedly, needful was not done. Because there were number of defects in the flat, which were pointed out in writing (as per record), both before and after execution of agreement. Thus delay in taking possession occurred due to the fault on the part of the Board. Moreover, the words used in the clause of the Hire Purchase Agreement itself are "shall" - "the hirer shall be put in possession". These words indicate the intention of the parties. As such submission of the appellant that she was rightly allowed interest on Rs. 1,24,257 from 3. 4. 1995 without allowing one year grace period is well founded. In the light of these facts we are of the opinion that the case in hand is quite distinugished from the earlier decision of this Commission cited supra and as such the argument of allowing one year as grace period in this case is untenable is hereby rejected.

THE learned Counsel for the Board further urged that his client wrote number of letters asking the complainant to take possession, but she did not come forward. Thus delay if any in taking possession is on the part of the complainant. Complainant countered this plea by referring to Annexure C-7 letter from her to the Board dated 22. 3. 1995, and C-8 another letter from her dated 3. 4. 1995 asking the Board to first rectify the defects in the flat as pointed out by her in writing. There was no response from the Board to these communications. These letters were more than a protest and why these were not replied could not be explained by the Board. Moreover, if she had failed to take possession due to her own fault, then why the Board did not exercise the option of cancelling her allotment which it was entitled to in terms of the Hire Purchase Agreement. Rights of the parties were fructified in terms of this agreement. Communications i. e. , Annexures R-11 and R-14, relied upon by the learned Counsel for the Board, are copies of intra-departmental correspondence which remained in their files only and without being communicated to the complainant. To a specific query on this point, learned Counsel for the Board drew a blank. Therefore, to say that the complainant was at fault in not taking possession of the flat is an argument which is purely an after thought. Above all flat to be provided was without defects. In case there were none, and was habitable nothing prevented the Board to have repelled Annexures C-7 and C-8 or at least replied these. So far as the argument of the complainant that she should be allowed interest at the rate of 18% and instead of 12% as ordered by the Forum below is concerned we cannot accede to it in the face of law laid down by the National Commission in Revision Petition No. 2279 of 1999 (Arising from Appeal No. 138/98 of H. P. State Commission), decided on 3. 12. 2004, whereby rate of interest was reduced from 18% to 12%. Moreover, this is in consonance with the law laid down by the Hon''ble Supreme Court in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=iii (2004) SLT 161=2004 CTJ 605 (SC) (CP ). In this case it was laid down that 18% interest per annum could not be paid in all matters irrespective of their peculiar facts. This was again followed by the Apex Court in Ghaziabad Development Authority v. Rajesh Chandra, I (2005) CPJ 19 (SC)=vii (2004) SLT 559=2005 CTJ 348 (SC) as also in Harayana Urban Development Authority v. Munshi Ram, I (2005) CPJ 18 (SC)=vii (2004) SLT 468=2005 CTJ 353 (SC) (CP) (Vol. IV April 2005 ). In the face of this legal position, the submission of the complainant for enhancement of rate of interest from 12% to 18% is hereby rejected.

Complainant further argued that as against total cost of the flat of Rs. 2,16,320, she had paid upto 3. 4. 1995 a sum of Rs. 1,24,257, She was to pay the balance amount of Rs. 92,063 on the day of agreement i. e. , 3. 4. 1995. She further stated and which was not disputed by the learned Counsel for the Board that he has further paid Rs. 78,569 between 10. 7. 1996 and 9. 4. 1997 whereas this balance amount of Rs. 92,063 was payable in 168 monthly instalments i. e. , in 14 years, each instalment being of Rs. 2,081, whereas within a short period of 8 months she had paid Rs. 78,569 till 9. 4. 1997. Since, this amount was admittedly paid by her to the Board much in advance of the agreed period who utilised it, therefore, we feel that the balance amount of Rs. 13,494 payable by her as part of the final payment, be adjusted from out of the interest amount payable to her by the Board on Rs. 1,24,257 and after setting off the same surplus if any amount still remains payable to her, Board shall within sixty days of the receipt of copy of this order remit the same either in cash or by a demand draft/banker''s cheque.

HAVING considered the contention of the complainant that despite clear-cut deficiency in service on the part of Board and having paid major portion of the cost of the flat in question leaving negligible amount of Rs. 13,494, we are of the considered view that principles of fair play demands that equity should be reciprocated by the other side also and this balance amount of Rs. 13,494 payable by her should be adjusted out of interest payable to the complainant by the Board. Ordered accordingly. (c) and (d) Complainant argued that she had been running from pillar to post on account of deficiency of service on the part of the Board, and when the latter failed to do the needful, she was compelled to approach the Authorities under the provisions of the Consumer Protection Act, 1986. She being an unmarried lady, had to suffer a lot of mental tension and agony due to acts of ommission and commission on the part of the Board. All these facts are borne out from the record itself and in this view of the matter she prayed for a sum of Rs. 25,000 as compensation to mitigate her sufferings, which she urged, is permissible under Section 14 (d) of the Consumer Protection Act, 1986 as amended upto date. She being a permanent resident of Faridabad, had been coming and going to and fro Faridabad for attending the proceedings frequently, at Solan, Shimla and New Delhi. On a specific question to her, she replied that on fare alone she had been paying Rs. 800 per trip. Therefore, she also prayed for enhancement of litigation cost from Rs, 1,500 to Rs. 15,000.

RECORD of Forum below, as well as of this Commission bears testimony to these facts. Thus, in our view, in the facts of this case, she is entitled for enhancement prayed for by her. We feel that ends of justice would be adequately met, if we allow her compensation to the extent of Rs. 5,000 for mental harassment and Rs. 4,000 as litigation cost instead of Rs. 1,500 as directerd in the impugned order. Ordered accordingly. In view of above discussion, we affirm the order of learned Forum below for payment of 12% per annum interest on Rs. 1,24,257 from 3. 4. 1995 till 10. 7. 1996. We however modify the order and direct that out of this interest the Board shall adjust Rs. 13,494 payable by her as remaining cost of the flat, and still if any surplus amount remains payable to her, the same shall be paid/ remitted to her either in cash or bank draft/baker''s cheque as the case may be within sixty days of the date of receipt of copy of this order. Failing which tbe complainant will also be entitled to interest @ Rs. 9% per annum on the surplus amount. In addition to this, we also order that the respondent shall pay a sum of Rs. 5,000 as compensation for mental harassment and Rs. 4,000 as a litigation cost to the complainant. Office is directed to send copy of this order to the parties free of cost as per rules forthwith. Appeal No. 309/2004 is disposed of in these terms. Appeal No. 313 of 2004 since all the points taken up by the learned Counsel for the Board in this appeal have been dealt with while dealing with Appeal No. 309/2004, we find no merits in this appeal (i. e. , Appeal No. 313/2004), the same is hereby dismissed. No order as to cost. Appeal No. 309 disposed of. Appeal No. 313 dismissed.