Full Judgment
The appellant as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to refund of Rs.1,71,400/- being the difference in the value of the building, to pay Rs.8824/- and Rs.4942/- being the excess interest collected, a sum of Rs.18,000/- with interest, representing the repair charges with compensation of Rs.1 lakh. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.29.12.2009 in C.C.5/2003.
This appeal coming before us for hearing finally on 29.09.2011, upon hearing the arguments of the either counsels and perused the documents, as well as the order of the District Forum, this Commission made the following order:
M. THANIKACHALAM J, PRESIDENT
1. The unsuccessful complainant is the appellant.
2. The complainant/appellant was allotted a house constructed for middle income group, bearing Door No.C-7, as per the order dated 12.10.2000, fixing the value of the house at Rs.2,46,200/- directing to pay the amount in 168 equal monthly installments, at the rate of Rs.2625/- commencing from March 2001. Pursuant to the order, key of the house was given on 22.04.2001. At the time of taking the delivery also, there were many defects, including damage in the house, flooring, windows etc., as catalogued in the Delivery Note.
3. The complainant addressed the second opposite party from the month of May 2001, repeatedly requesting to rectify the repairs, failed, resulting the complainant repairing the building, by spending a sum of Rs.18,000/-. After repairing the building, the amount was also not reimbursed, by sending repeated requests, for which also, there was no proper reply and response.
4. The Housing Board had reduced the value of the house from Rs.2,46,200/- to Rs.1,71,400/- and the complainant is entitled to get refund of the difference also. Further, the collection of interest even before handing over the possession is unjustifiable, illegal. Thus in all, the complainant is entitled to get the refund of Rs.1,71,400/- being the difference in the value of the building, another sum of Rs.8824/- and Rs.4942/- being the excess interest collected, a sum of Rs.18,000/- with interest, representing the repair charges met out by the complainant along with compensation of Rs.1 lakh since the opposite parties have caused mental agony, by committing deficiency in handing over defective house, not rectifying, causing further sufferings. Hence, the case.
5. The opposite parties in their Written Version, have accepted the allotment, value, as well as handing over of the possession, but denied the defects catalogued by the complainant, as if, the building was handed over without any defect, denying the expenses incurred by the complainant, for repairing or rectifying the defects said to have been existence in the building. They have also denied the collection of interest, further challenging, the complainant is not entitled to a subsequent revised price, since on the date of the sale of the building for the market price alone, the property sold, accepted by the complainant, thereby praying for the dismissal of the complaint, denying the other averments.
6. The District Forum while evaluating the pleadings as well as many documents filed on behalf of the complainant, namely 39 and 8 documents on behalf of the opposite parties, felt that the complainant failed to prove the defects in the building, as well as expenses incurred by him, for repairing the defects, that for the non-payment of the amount, interest was collected and the claim of refund of the same is erroneous and that based upon subsequent revised sale price, the complainant is not entitled to get the refund of the alleged excess payment. Thus taking the conclusion, the District Forum felt further, there was no deficiency of service. In this view, the complaint came to be dismissed as per the order dated 29.12.2009, which is under challenge.
7. The learned counsel for the appellant urged before us, that when the complainant had proved the actual defects, at the time of delivering the building, as well non-repairing of the same by the opposite parties, whereas repairs were carried out by the complainant, the District Forum unfortunately failed to appreciate, to reimburse the costs, which should be upset, ordering payment. It is the further submission of the learned counsel for the appellant, that when the allotment order does not say about the payment of penal interest or any other interest, collection of interest is against law, which should be ordered to be refunded, in addition, for non-payment, ordering compensation for mental agony. A further attempt was made on behalf of the complainant, that subsequently price was reduced and the excess amount namely more than the amount later fixed should be refunded. On the other hand, it is the submission of the learned counsel appearing for the opposite parties, that the District Forum has properly analyzed all the documents, rendered a just decision, it requires confirmation, not to be disturbed.
8. After hearing the submission of both sides, then going through the documents, applying our mind, reading the judgement of the District Forum also, we are of the considered opinion, that the District Forum failed to appreciate the case, to some extent properly, resulting injustice to some extent, which we are inclined to rectify and that is the only point at later point of time, the appellant also urged before us, for which, there is no answer from the opposite parties, which factor, was not properly considered and appreciated by the District Forum.
9. Under Ex.A1, on 12.10.2000, the complainant was allotted a housing board building, bearing Door No.C-7, fixing the costs not only for the building, but also for site at Rs.2,46,200. A seen from this order, the complainant was not directed to pay any initial deposit, whereas, he was directed to pay the said costs of the building in 168 equal monthly installments spread over 14 years at the rate of 2625/-. Pursuant to the allotment order, even as admitted by the complainant, possession was taken by the complainant on 22.4.2001 as evidenced by Ex.A2. Neither Ex.A1 nor Ex.A2 is under dispute. As seen from the document prepared for handing over, at the time of handing over possession of the building also, there were repairs or defects that is noted in Ex.A2 and they are, front doors damage, ground floor not only reduced in height, but also damage, window glass were broken, there were cracks in the bath room and bed room, drainage pipes were damaged etc., The complainant had addressed a letter on 16.5.2001, after taking possession on 22.4.2001 requesting the second opposite party to rectify the defects, and it fell in the deaf ears of the second opposite party not responding. Repeated requests, though periodically installments were collected, the second opposite party or the sub-ordinates, never bothered to rectify the defects, thereby compelling the complainant to approach the Chief Minister Cell, which elicited only a denial reply on 12.09.2002, as if, Housing Board is not entitled to bear the expenses incurred for repair. Therefore, unable to get the house repaired through the Housing Board, the complainant rectified the defects, engaging M/s.Ruby Constructions, spending more than Rs.16,517/- as evidenced by Ex.A6 and Ex.A7. This amount was claimed, negatived, unfortunately by the District Forum also. It is not the case of the complainant, that he is claiming the amount for the subsequent repairs, if any occurred after taking over possession of the building, spread over later point of time. It is the specific case of the complainant, that on the date of taking possession alone, there were defects and that part is not specifically, effectively denied by the opposite parties. The opposite parties or their officials being the signatory of the document, namely hading over, taken over bound by the same, where we find the actual damage to the building even on the date of handing over possession, that is defective construction, that should be rectified by the Housing Board alone, since they have collected or subsequently collected the EMI periodically, including interest also. The District Forum instead of accepting the case of the complainant namely they have spent the amount, which is evidenced by Ex.A6 and Ex.A7, has recorded a peculiar finding, as if, that is not proved, which finding, we are unable to endorse. The Housing Board having developed the area, constructed the building for the welfare of the house less people, and the house so handed over should have the minimum standard of construction, not exposing the defects atleast, at the time of handing over. In this case, it is not so, as proved by the complainant, which we would say, an admission by the opposite parties also under Ex.A2. It is not the case of the opposite parties, there was no defects in the building or amount claimed by the complainant relates to the subsequent period, or they have carried out repairs or rectified the defects, noted in Ex.A2. Therefore, it is incumbent upon the service provider, namely the opposite parties, having collected more than Rs.2 lakhs hand over possession of the building in good condition and the failure to do so should be construed not only negligence, but also deficiency in service, for which, the complainant is entitled to a sum of Rs.18,000/- with interest thereon from the date of spending the amount, as evidenced by Ex.A6 and Ex.A7.
10. As rightly held by the District Forum, the subsequent revision of the costs was not extended to the old sale and therefore, the complainant is not entitled to the difference in value, though in the same area originally the costs was fixed at Rs.2,46,200/-, which was subsequently reduced. The complainant is bound to pay the actual costs of the building, at the time of purchase unless the subsequent revision of the price was extended to be old purchaser, for which, we do not have any materials. In this view, the complainant is not entitled to the first relief namely recovery of difference in costs.
11. As per the scheduled, EMI should have been paid. It appears not paid, attractiving penal interest. Therefore, if at all, the opposite parties had collected interest that cannot be ordered to be refunded. In fact, this claim was not also so much pressed. For the above said reasons, we conclude that the complainant is entitled to Rs.18,000/- with reasonable interest at 12% per annum and since we are awarding interest, we decline to grant compensation. Hence, the appeal is to be allowed in part as said above.
12. In the result, the appeal is allowed, order of the District Forum is set aside, the complaint is allowed in part, directing the opposite parties to pay a sum of Rs.18,000/- with interest thereon at 12% per annum from the date of filing of the complaint, till the date of payment, with costs of Rs.1,000/-, making no order as to costs in this appeal. Time for payment-three months.