The Chandigarh Housing Board, Through Its Chairman Vs. Anju Bhanot - Court Judgment

SooperKanoon Citationsooperkanoon.com/1145355
CourtNational Consumer Disputes Redressal Commission NCDRC
Decided OnApr-23-2014
Case NumberFirst Appeal No. 131 of 2009
JudgeK.S. CHAUDHARI, PRESIDING MEMBER & THE HONOURABLE DR. B.C. GUPTA, MEMBER
AppellantThe Chandigarh Housing Board, Through Its Chairman
RespondentAnju Bhanot
Excerpt:
consumer protection act, 1986 - section 19 -dr. b.c. gupta, member this first appeal has been filed under section 19 of the consumer protection act, 1986 against the impugned order dated 22.01.2009, passed by the state consumer disputes redressal commission, u.t. chandigarh (hereinafter referred as the state commission) in consumer complaint no. 07/2008, œmrs. anju bhanot vs. the chandigarh housing board? vide which the said complaint was partly allowed with cost of rs.5,000/- and the appellant/opposite party was directed to pay interest on the excess amount paid by the complainant at the rate at which a nationalised bank pays interest on a fixed deposit. it was, further, directed to pay a sum of rs.25,000/- as compensation for mental tension and agony. 2. briefly stated, the facts of the case are that the appellant/opposite party, the chandigarh housing board, allotted a commercial booth bearing no. 26, sector-48, chandigarh for a sum of rs.21,50,000/- vide allotment letter dated 21.02.2003 to gagan singh son of ami chand and the physical possession of the booth was also handed over on 26.02.2003. the complainant/respondent is the general power of attorney (gpa) holder of the allottee gagan singh, and the said document showing her to be gpa, is dated 07.07.2003. the booth was allotted by auction on 99 years lease hold basis. a sum of rs.5,37,500/- was paid by gagan singh as 25% of the total premium of rs.21,50,000/- alongwith ground rent amounting to rs.77,571/- for the period 29.11.1994 to 28.11.2003. as per the terms and conditions contained in the letter of allotment, the balance 75% of the amount of premium could be paid in full within 30 days of the issue of allotment letter, or in the alternative, the said amount could be paid in 3 yearly instalments, alongwith interest of 18% per annum. the due date of payment of these 3 instalments of rs.7,41,627/- each has been mentioned as 15.01.2004, 15.01.2005 and 15.01.2006 respectively. the dates up to which the payment of such instalments could be made have been mentioned as 10.02.2004, 10.02.2005 and 10.02.2006 respectively. in addition the ground rent amounting to rs.8,619/- per annum is payable on 28th december of every year for the first 33 years. for the next period of 33 years, the corresponding amount of ground rent is rs.12,928/- per annum and for the last 33 years, the payable amount shall be rs.17,238/- per annum. the consumer complaint in question has been filed by mrs. anju bhanot, who is the gpa holder of the allottee. as per the version given in the complaint, the complainant continued to make payment of the balance amount to the appellant/opposite party alongwith interest. the complainant has alleged that vide their letters dated 31.07.2003 and 04.08.2003, they sought details of the pending payments from the appellant/opposite party, but the appellant/opposite party never replied to said letters. the husband of the complainant visited the office of the opposite party and he used to deposit various amounts as per information received from the officials of the opposite party. vide letter dated 17.01.2006, the complainants husband expressed his desire to clear all the pending dues and sought the details from the opposite party. he paid a personal visit to the account section of the opposite party on 19.01.2006, when he was told that a sum of only rs.59,413/- including ground rent was due against the booth. the said amount was deposited by him on very next date i.e. 20.01.2006. according to the complainant, full and final payment had been made to the opposite party. on 19.02.2008, they wrote to the opposite party to issue a no dues certificate regarding the said property, but they were shocked to receive a demand of rs.5,63,482/- from the opposite party against the said booth. the complainant, alleging harassment and high-handedness on the part of the opposite party, filed the consumer complaint in question, requesting that the opposite party should be directed to issue no dues certificate and asked to withdraw the demand of rs.5,63,482/-. in addition, damages of rs.10 lakhs should be awarded against the opposite party for their unfair trade practice and rs.5 lakhs should be given as compensation for mental harassment etc. in addition to refund of rs.10,000/- charged as ground rent for the period prior to the date of allotment and rs.25,000/- as cost of litigation. 3. in their written statement, filed before the state commission, the appellant/opposite party stated that the said booth had been purchased for commercial purpose and hence, the complainant does not fall within the definition of consumer. moreover, since the dispute was regarding payment of rs.5,63,482/-, the jurisdiction to hear the complaint was with the district forum. the opposite party also took the stand that all terms and conditions for payment of lease money and ground rent etc. were clearly mentioned in the allotment letter, issued in favour of gagan singh and hence, no further details were required to be given by the opposite party to the gpa holder. the complainant had failed to make payment in accordance with the schedule mentioned in the allotment letter and hence, they were liable to pay the balance amount of lease money alongwith interest till date and hence, the figure of rs.5,63,482/- had been arrived at. 4. the state commission, after hearing the parties, allowed the complaint vide impugned order and observed that the complainant had paid a sum of rs.11.40 lakhs on 08.08.2003, whereas the first instalment of rs.7,41,627.00/- was due on 15.01.2004. they had also made payment of some more amount before the due date and hence, the opposite party had received excess amount from the complainant, although the instalments continued to contain the element of 18% interest. the complainant made the last payment of rs.59,417.00/- on 23.01.2006. after accounting for all amounts paid by the complainant, the net payable amount as on 23.01.2006 by the complainant was rs.3,52,964.00/-. the op had calculated interest for the period, 23.01.2006 to 31.03.2008 as rs.1,85,437.00. the state commission concluded that since the complainant had deposited certain sums in advance of the due date, it was obligatory on the part of the opposite party to return the excess amount paid, or to pay interest on the said amount. the state commission directed that the opposite party should pay interest at bank fdr rates to the complainant on the excess amount and also to pay rs.25,000/- as compensation for mental agony and rs.5,000/- as costs. it is against this order that the present petition has been made. a notice of the appeal was sent to the respondent for appearance. the respondent did put in appearance on some of the hearings, but later absented herself. the last notice was sent to the respondent on 26.12.2013 for hearing on 24.02.2014. however, the respondent did not appear despite service. the arguments of the learned counsel for appellant were heard on that day. 5. it has been argued by the learned counsel for the appellant that the said booth was allotted in the name of gagan singh, who paid the initial amount of 25%. however, the schedule for payment of balance 75% amount, as contained in the letter of allotment, was not followed. the learned counsel stated that gagan singh had executed a general power of attorney in favour of the complainant, but he never sought any permission from the opposite party for doing the same. the name of the complainant is nowhere in the record and whatever amounts were deposited by her, had gone to the account of gagan singh only. the learned counsel argued that since this booth was purchased in auction, the complainant could not be termed as a consumer, as per the judgment given by the honble apex court in the case, u.t. chandigarh administration and anr. vs. amarjeet singh and ors. as reported in ii (2009) cpj 1 (sc). the learned counsel stated that the booth had been purchased for commercial purpose and hence, this complaint was not maintainable on both grounds, that the complainant being a gpa holder, and also having the booth for commercial purpose, does not qualify to be called a consumer. the learned counsel also argued that the pecuniary jurisdiction to hear the said complaint was with the district forum and they had taken this objection in reply to the complaint filed before the state commission. 6. we have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. 7. there is a delay of 33 days in filing the present appeal. it has been stated in the memo of appeal that copy of the impugned order dated 22.01.2009 was received by the appellant on 13.02.2009, although it was dispatched on 02.02.2009. the matter was then examined in their office and the requisite legal opinion was also taken. the delay in filing the appeal took place due to official formalities and was not intentional. in view of the position explained by the appellant in the memo of appeal, the delay of 33 days in filing this appeal is ordered to be condoned. 8. further, the state commission vide operative portion of the impugned order have stated as follows:- œ18.  hence, in view of discussion above, complaint is partly accepted with costs of rs. 5,000/- and op is directed to pay interest at the rate at which a nationalized bank is liable to pay on the fixed deposit amount, on the excess amount paid by the complainant and further to pay rs. 25,000/- as compensation for mental tension and agony. the aforesaid amounts be paid within two months, failing which it would carry interest @ 9% p.a. till payment from the date of filing of complaint.? 9. the state commission observed in their order that the first instalment for the balance 75% amount amounting to rs.7,41,627/- was due on 15.01.2004, but the complainant had made payment of rs.11.40 lakhs on 08.08.2003. they made further payment of rs.1 lakh on 10.02.2004 and rs.1,72,500/- on 12.04.2004 and then rs.2 lakhs on 26.07.2005. however, after the adjustment of third instalment due on 15.01.2006 and after receiving the payment of rs.59,417/- on 23.01.2006, the balance amount payable by the complainant as on 23.01.2006 was rs.3,52,964/-. since the said amount was not paid by the complainant, the opposite party asked for the payment of the same alongwith interest of 18%, beyond the period from 23.01.2006 onwards. the state commission observed that since excess amount had been received by the appellant/opposite party before time and kept lying with them, it was obligatory on their part to pay interest on the excess amount at fdr rates, allowed by any nationalised bank. 10. on perusal of the entire record of the case, we find that in the allotment letter, issued by the appellant/opposite party on 21.02.2003, the position regarding the payment of balance amount alongwith interest, has been very clearly mentioned and the due dates as well as the last dates of payment of instalments, have also been clearly specified. the complainant, who is the g.p.a. holder of the original allottee gagan singh, is supposed to be in the knowledge of the contents of the allotment letter. the complainant has stated in the complaint that despite writing letters to the opposite party and paying personal visits, the exact position was not informed to her. however, this version of the complainant can not be believed, because the entire position is clearly stated in the allotment letter itself. the complainant had also stated that when her husband visited the office of the opposite party on 19.01.2006, he was told that an amount of rs.59,413/- only as ground rent was due for payment. although, the opposite party have denied this version in their reply, saying that they could not have stated so, because the third instalment payable before 10.02.2006 was still to be paid. however, in the strict sense of word, it is clear that the said third instalment was to be paid by 10.02.2006 and hence, the information given to the complainant was not incorrect, as on 19.01.2006, only the ground rent arrears were payable. it is evident from these facts that there has not been any deficiency in service or unfair trade practice on the part of the opposite party, rather the complainant has failed to make payment, as per the schedule given in the allotment letter. 11. in so far as the payment of fdr interest on excess payment, as allowed by the state commission is concerned, we fail to agree with the conclusion arrived at by the state commission. in case, an allottee chooses to make payment in the office before time, it is not practical for an organisation like the appellant/opposite party to invest the excess amount in the fdr, or to pay interest on the same. it was the duty of the complainant herself to be vigilant about the quantum and time of the payments to the opposite party. we, therefore, hold that the state commission have taken an erroneous view of the whole situation in allowing the complainant and the payment of fdr interest on the excess amount paid by them to the opposite party. 12. it is further observed that the allottee of the booth is gagan singh and possession of the same was also delivered to him. the complaint in question could have been filed by gagan singh only, whereas the complaint is filed by the complainant as g.p.a holder, which is not permissible in law. 13. in view of the position explained above, this appeal is ordered to be accepted and the order, passed by the state commission is set aside, holding that the allegation of deficiency in service or unfair trade practice against the appellant/opposite party does not stand proved. consequently, the consumer complaint in question is ordered to be dismissed, with no order as to costs.
Judgment:

Dr. B.C. Gupta, Member

This first appeal has been filed under section 19 of the Consumer Protection Act, 1986 against the impugned order dated 22.01.2009, passed by the State Consumer Disputes Redressal Commission, U.T. Chandigarh (hereinafter referred as the State Commission) in Consumer Complaint No. 07/2008, œMrs. Anju Bhanot vs. The Chandigarh Housing Board? vide which the said complaint was partly allowed with cost of Rs.5,000/- and the appellant/opposite party was directed to pay interest on the excess amount paid by the complainant at the rate at which a nationalised bank pays interest on a fixed deposit. It was, further, directed to pay a sum of Rs.25,000/- as compensation for mental tension and agony.

2. Briefly stated, the facts of the case are that the appellant/opposite party, The Chandigarh Housing Board, allotted a commercial booth bearing no. 26, Sector-48, Chandigarh for a sum of Rs.21,50,000/- vide allotment letter dated 21.02.2003 to Gagan Singh son of Ami Chand and the physical possession of the booth was also handed over on 26.02.2003. The complainant/respondent is the General Power of Attorney (GPA) holder of the allottee Gagan Singh, and the said document showing her to be GPA, is dated 07.07.2003. The booth was allotted by auction on 99 years lease hold basis. A sum of Rs.5,37,500/- was paid by Gagan Singh as 25% of the total premium of Rs.21,50,000/- alongwith ground rent amounting to Rs.77,571/- for the period 29.11.1994 to 28.11.2003. As per the terms and conditions contained in the letter of allotment, the balance 75% of the amount of premium could be paid in full within 30 days of the issue of allotment letter, or in the alternative, the said amount could be paid in 3 yearly instalments, alongwith interest of 18% per annum. The due date of payment of these 3 instalments of Rs.7,41,627/- each has been mentioned as 15.01.2004, 15.01.2005 and 15.01.2006 respectively. The dates up to which the payment of such instalments could be made have been mentioned as 10.02.2004, 10.02.2005 and 10.02.2006 respectively. In addition the ground rent amounting to Rs.8,619/- per annum is payable on 28th December of every year for the first 33 years. For the next period of 33 years, the corresponding amount of ground rent is Rs.12,928/- per annum and for the last 33 years, the payable amount shall be Rs.17,238/- per annum. The consumer complaint in question has been filed by Mrs. Anju Bhanot, who is the GPA holder of the allottee. As per the version given in the complaint, the complainant continued to make payment of the balance amount to the appellant/opposite party alongwith interest. The complainant has alleged that vide their letters dated 31.07.2003 and 04.08.2003, they sought details of the pending payments from the appellant/opposite party, but the appellant/opposite party never replied to said letters. The husband of the complainant visited the office of the opposite party and he used to deposit various amounts as per information received from the officials of the opposite party. Vide letter dated 17.01.2006, the complainants husband expressed his desire to clear all the pending dues and sought the details from the opposite party. He paid a personal visit to the account section of the opposite party on 19.01.2006, when he was told that a sum of only Rs.59,413/- including ground rent was due against the booth. The said amount was deposited by him on very next date i.e. 20.01.2006. According to the complainant, full and final payment had been made to the opposite party. On 19.02.2008, they wrote to the opposite party to issue a no dues certificate regarding the said property, but they were shocked to receive a demand of Rs.5,63,482/- from the opposite party against the said booth. The complainant, alleging harassment and high-handedness on the part of the opposite party, filed the consumer complaint in question, requesting that the opposite party should be directed to issue no dues certificate and asked to withdraw the demand of Rs.5,63,482/-. In addition, damages of Rs.10 lakhs should be awarded against the opposite party for their unfair trade practice and Rs.5 lakhs should be given as compensation for mental harassment etc. in addition to refund of Rs.10,000/- charged as ground rent for the period prior to the date of allotment and Rs.25,000/- as cost of litigation.

3. In their written statement, filed before the State Commission, the appellant/opposite party stated that the said booth had been purchased for commercial purpose and hence, the complainant does not fall within the definition of consumer. Moreover, since the dispute was regarding payment of Rs.5,63,482/-, the jurisdiction to hear the complaint was with the District Forum. The opposite party also took the stand that all terms and conditions for payment of lease money and ground rent etc. were clearly mentioned in the allotment letter, issued in favour of Gagan Singh and hence, no further details were required to be given by the opposite party to the GPA holder. The complainant had failed to make payment in accordance with the schedule mentioned in the allotment letter and hence, they were liable to pay the balance amount of lease money alongwith interest till date and hence, the figure of Rs.5,63,482/- had been arrived at.

4. The State Commission, after hearing the parties, allowed the complaint vide impugned order and observed that the complainant had paid a sum of Rs.11.40 lakhs on 08.08.2003, whereas the first instalment of Rs.7,41,627.00/- was due on 15.01.2004. They had also made payment of some more amount before the due date and hence, the opposite party had received excess amount from the complainant, although the instalments continued to contain the element of 18% interest. The complainant made the last payment of Rs.59,417.00/- on 23.01.2006. After accounting for all amounts paid by the complainant, the net payable amount as on 23.01.2006 by the complainant was Rs.3,52,964.00/-. The OP had calculated interest for the period, 23.01.2006 to 31.03.2008 as Rs.1,85,437.00. The State Commission concluded that since the complainant had deposited certain sums in advance of the due date, it was obligatory on the part of the opposite party to return the excess amount paid, or to pay interest on the said amount. The State Commission directed that the opposite party should pay interest at bank FDR rates to the complainant on the excess amount and also to pay Rs.25,000/- as compensation for mental agony and Rs.5,000/- as costs. It is against this order that the present petition has been made. A notice of the appeal was sent to the respondent for appearance. The respondent did put in appearance on some of the hearings, but later absented herself. The last notice was sent to the respondent on 26.12.2013 for hearing on 24.02.2014. However, the respondent did not appear despite service. The arguments of the learned counsel for appellant were heard on that day.

5. It has been argued by the learned counsel for the appellant that the said booth was allotted in the name of Gagan Singh, who paid the initial amount of 25%. However, the schedule for payment of balance 75% amount, as contained in the letter of allotment, was not followed. The learned counsel stated that Gagan Singh had executed a general power of attorney in favour of the complainant, but he never sought any permission from the opposite party for doing the same. The name of the complainant is nowhere in the record and whatever amounts were deposited by her, had gone to the account of Gagan Singh only. The learned counsel argued that since this booth was purchased in auction, the complainant could not be termed as a consumer, as per the judgment given by the Honble Apex Court in the case, U.T. Chandigarh Administration and Anr. vs. Amarjeet Singh and Ors. as reported in II (2009) CPJ 1 (SC). The learned counsel stated that the booth had been purchased for commercial purpose and hence, this complaint was not maintainable on both grounds, that the complainant being a GPA holder, and also having the booth for commercial purpose, does not qualify to be called a consumer. The learned counsel also argued that the pecuniary jurisdiction to hear the said complaint was with the District Forum and they had taken this objection in reply to the complaint filed before the State Commission.

6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

7. There is a delay of 33 days in filing the present appeal. It has been stated in the memo of appeal that copy of the impugned order dated 22.01.2009 was received by the appellant on 13.02.2009, although it was dispatched on 02.02.2009. The matter was then examined in their office and the requisite legal opinion was also taken. The delay in filing the appeal took place due to official formalities and was not intentional. In view of the position explained by the appellant in the memo of appeal, the delay of 33 days in filing this appeal is ordered to be condoned.

8. Further, the State Commission vide operative portion of the impugned order have stated as follows:-

œ18.  Hence, in view of discussion above, complaint is partly accepted with costs of Rs. 5,000/- and OP is directed to pay interest at the rate at which a nationalized bank is liable to pay on the fixed deposit amount, on the excess amount paid by the complainant and further to pay Rs. 25,000/- as compensation for mental tension and agony. The aforesaid amounts be paid within two months, failing which it would carry interest @ 9% p.a. till payment from the date of filing of complaint.?

9. The State Commission observed in their order that the first instalment for the balance 75% amount amounting to Rs.7,41,627/- was due on 15.01.2004, but the complainant had made payment of Rs.11.40 lakhs on 08.08.2003. They made further payment of Rs.1 lakh on 10.02.2004 and Rs.1,72,500/- on 12.04.2004 and then Rs.2 lakhs on 26.07.2005. However, after the adjustment of third instalment due on 15.01.2006 and after receiving the payment of Rs.59,417/- on 23.01.2006, the balance amount payable by the complainant as on 23.01.2006 was Rs.3,52,964/-. Since the said amount was not paid by the complainant, the opposite party asked for the payment of the same alongwith interest of 18%, beyond the period from 23.01.2006 onwards. The State Commission observed that since excess amount had been received by the appellant/opposite party before time and kept lying with them, it was obligatory on their part to pay interest on the excess amount at FDR rates, allowed by any nationalised bank.

10. On perusal of the entire record of the case, we find that in the allotment letter, issued by the appellant/opposite party on 21.02.2003, the position regarding the payment of balance amount alongwith interest, has been very clearly mentioned and the due dates as well as the last dates of payment of instalments, have also been clearly specified. The complainant, who is the G.P.A. holder of the original allottee Gagan Singh, is supposed to be in the knowledge of the contents of the allotment letter. The complainant has stated in the complaint that despite writing letters to the opposite party and paying personal visits, the exact position was not informed to her. However, this version of the complainant can not be believed, because the entire position is clearly stated in the allotment letter itself. The complainant had also stated that when her husband visited the office of the opposite party on 19.01.2006, he was told that an amount of Rs.59,413/- only as ground rent was due for payment. Although, the opposite party have denied this version in their reply, saying that they could not have stated so, because the third instalment payable before 10.02.2006 was still to be paid. However, in the strict sense of word, it is clear that the said third instalment was to be paid by 10.02.2006 and hence, the information given to the complainant was not incorrect, as on 19.01.2006, only the ground rent arrears were payable. It is evident from these facts that there has not been any deficiency in service or unfair trade practice on the part of the opposite party, rather the complainant has failed to make payment, as per the schedule given in the allotment letter.

11. In so far as the payment of FDR interest on excess payment, as allowed by the State Commission is concerned, we fail to agree with the conclusion arrived at by the State Commission. In case, an allottee chooses to make payment in the office before time, it is not practical for an organisation like the appellant/opposite party to invest the excess amount in the FDR, or to pay interest on the same. It was the duty of the complainant herself to be vigilant about the quantum and time of the payments to the opposite party. We, therefore, hold that the State Commission have taken an erroneous view of the whole situation in allowing the complainant and the payment of FDR interest on the excess amount paid by them to the opposite party.

12. It is further observed that the allottee of the booth is Gagan Singh and possession of the same was also delivered to him. The complaint in question could have been filed by Gagan Singh only, whereas the complaint is filed by the complainant as G.P.A holder, which is not permissible in law.

13. In view of the position explained above, this appeal is ordered to be accepted and the order, passed by the State Commission is set aside, holding that the allegation of deficiency in service or unfair trade practice against the appellant/opposite party does not stand proved. Consequently, the consumer complaint in question is ordered to be dismissed, with no order as to costs.