BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                         C.C.No.50/2012

Dated this the 2^nd day of May 2016

(Date of Institution:12.12.2012)

T. Parimala by her Power Agent      

G. Selvaraj   

No.80/2, Fathima Tower

Duplex Street   

Karaikal – 609 602.

                                       ….     Complainant

Vs.

The Secretary,

Puducherry Housing Board

Housing Board Building

Anna Nagar, Nellithope

Puducherry – 605 005.

                    ….     Opposite Party

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A., B.L.,

MEMBER

Thiru V.V. STEEPHEN, B.A., LL.B.,

MEMBER

FOR THE COMPLAINANT      :  Thiru A. Thirumalvalavan, Advocate

FOR THE OPPOSITE PARTY   : Thiru A. Ahamed Ansari, Advocate

O R  D  E  R

(by Thiru V.V. Steephen, Member)

This is a complaint filed by the complainant under Sections 11 and 12 of the Consumer Protection Act, 1986  to direct the Opposite Party  to repay the amount of Rs.1,78,718/- being the excess amount paid by the complainant with reciprocal rate of interests and penal interest; to pay a compensation of Rs.2.00 lakhs for the mental agony underwent by the complainant for about 5 years due to the deficiency attributed on the part of the opposite parte and for costs of this complaint.

2.  The case of the complainant is as follows:

          The complainant has purchased the residential dwelling unit of MIG flat No. S.F. /B1 at koilpathu village Karaikal and took possession of it on 29.08.1997 from the Opposite party vide allotment order dated 29.08.1997. The cost of the Flat as fixed in the order of allotment is Rs. 2,50,000 excluding the initial amount deposited by the complainant and the balance cost of the flat Rs. 1,87,500 which was repayable in 120 Equal Monthly Hire Purchase Installments of Rs. 3,054/- for ten years commencing from August,1997 to July, 2007. The amount repayable is Rs.3, 66,480/-.  The Hire Purchase Instalment comprises of Principal and interest.  The EMI – Repayment Intimation though provided with a specific clause for payment of 2.5% as penal interest for default in repayment of Hire Purchase Instalments, if any but it silent about the basic rate of interest payable on the Principal amount.  The complainant paid Rs.4, 42,523/- towards full settlement. 

The opposite party, though acknowledged part payment paid on 05.05.1998 and intimated against which month the part payment so paid was adjusted, but, was discontinued to furnish these details in respect of subsequent payments paid from 03.06.1999 onwards. The printed and numbered receipt though provided with printed columns with split up details of Hire Purchase Instalment such as principal, interest and penal interests etc, the opposite party has not furnished the split up details to the complainant.   Further the opposite party in its demand letters dated 03.05.2011 and 08.08.2001 though demanded for payment of final cost was also not chosen to furnish the above split up details. Due to the absence of split up details in the receipts and in the demand letters, the complainant effected the part and final payments as and when demanded which has resulted in the over payment of an amount of 1,78,718/-.   To the notice issued by the complainant on 02.07.2012, the opposite party has replied on 02.08.2012 stating that there was no over payment.  The opposite party has replied that the complainant has not paid the 5% non-waiver portion of interest as per the One Time Rebate Scheme within the stipulated time.   In fact the complainant has paid the 5% of the non- waiver portion of the interest excluding the waiver portion of 95% interest the complainant has repaid the entire balance cost of the flat within the agreed period by 31.07.2007.  The complainant has persuaded many times for the rectification of the over payments. The opposite party was not heeded to the genuine attempts of the complainant.  The opposite party was not furnished the basic rate of interest and the extract of ledger account to substantiate its reply. Due to the deficiencies, the overpayments were remitted by the complainant.  By the inordinate delay in the execution of the sale deed for about 4 ¾ years, the complainant underwent mental agony for which the complainant claims a reasonable compensation of
Rs. 2,00,000/-. 

3. The complainant further submitted that the One Time Rebate Scheme for waiver of 95% of the interest was intimated to the complainant under certificate of posting and through news paper publications. The amount payable under the demand notices to the housing board were sent to the complainant through regular postal medium under registered post with acknowledgement due to ensure its active service.  Whereas, the opposite party has alleged that the 95% quantum of interest waiver notice for Rs. 1,02,675/- in favour of the complainant was sent through certificate of posting and news paper publications.  The opposite party has shown more interest in the collection of its outstanding amounts, but was in utter disregard to communicate the interest waiver scheme to its allottee/ the complainant herein in an improper way. This negligence of duty for adopting double standards is solely attributed on the part of the opposite party. Hence, it can easily be inferred as proven deficiency of service.

4. Further, the overall interest as per EMI-Repayment intimation amounts to Rs.1, 16,480/-  excluding the interest waiver as per reply notice for Rs. 1,02,675/1 the complainant has to pay an amount of Rs.12,805 as interest on the principal amount of Rs. 2,50,000/-  aggregating to Rs.2,63,805/-.   However, the complainant was compelled to make payment totaling to Rs.4, 42,523/-.   Hence, there is an unjustified overpayment of Rs. 1,78,718/- was compelled to be made by the complainant.   In the reply notice the opposite party has only acknowledged an amount of Rs. 2,50,000/- against the actual remittance of Rs. 4,42,523/-.  The interest waiver notice was sent on 31.07.2007 which was the last date fixed to clear the balance cost. The One Time Rebate Scheme as stated in the notice is dated 14.10.2005, i.e. vide Government Order in G.O. Ms. No. 16/2005 dated 14.10.2005.   The opposite party was in hibernation and took 599 days or about 1 ¾ years in communicating the waiver scheme to the complainant.  As the complainant, as alleged in the reply notice, has not chosen to avail the benefit of the scheme by remitting the 5 of the non-waiver portion of interest of Rs. 5,404/- within the stipulated time.   By adding this lapse of 599 days perpetrated in making the communication of the waiver scheme by the opposite party, the complainant was at her liberty to remit the non-waiver portion of 5% of the interest of Rs. 5,404 upto the correspondingly extended period by 31.05.2009.   But the complainant has remitted this amount well in advance on 23.07.2008.   This fact of remittance of this amount was suppressed in the reply notice for the reasons best known to the Opposite party.  The Opposite party has acknowledged the remittance of the non waiver portion of interest @5% of Rs. 5,404/-. At the moment of receipt of the non-waiver portion of the interest, a bounden and inescapable duty has been casted upon the Opposite party to waive the 95% interest to the complainant under the Government scheme. Hence, this complaint.

5. In the reply, the opposite party has stated that:

The complaint is not maintainable either on law or on facts.  This Hon'ble forum has no jurisdiction to entertain this complaint.   No case had been made out in the complaint. The complaint lacks cause of action. If at all the complainant is really aggrieved she ought to have exhausted her remedies only before the civil court. The complainant is not a consumer and the claim of complainant is barred by limitation. There existed only a contractual relationship between the parties are governed by the express and implied terms of contract.  Every word in the contract (i.e.) allotment order dated 29.08.1997 and sale deed dated 15.03.2012 is important and the same cannot be ignored. A detailed reply was sent on behalf of this Respondent to the prelitigation notice.

6. The contractual relationship between the complainant and Respondent has been terminated as per Law by reason of execution and registration of sale deed dated of this contumacious proceeding. Besides the alleged representation of complainant by her so called power agent is of no legal consequence. The execution of power deed is denied. There is no notice to this Opposite Party in the power application said to have been filed. Thus the institution of this complaint is non-est in the eye of Law.  It had been made very clear that in clause 3 of allotment order,  the balance cost of flat is payable in e  qual monthly installments for10 years with effect from the date of handing over of the flat.  According to clause IV of the allotment order hire purchase installment, lease cum sale agreement should be executed before taking over the flat  and in clause V of the allotment order the key of the flat will be hand over to her soon after the fulfillment of all the formalities.

7. In the ultimate para of the allotment order it is specifically mentioned that in case the above said conditions are not fulfilled and the amount  as mentioned above is  not remitted within the stipulated time limit the allotment of MIG flat No. S.F/B1 will stand cancelled without any further intimation and the amount already paid by the complainant as EMD will be forfeited and no further correspondence in that case  will be entertained.  Thus a close reading of these vital clauses will only  to prove that, i) the relationship between the complainant and Opposite Party  is nothing but a contractual relationship and there is no question of consumerism is arising in this matter and ii) that the time frame had been stipulated make it as the essence of contract i.e. allotment order which is the magna carta in this case.

8. The opposite party further stated that the complainant had been allotted S.F/B1 in second floor house at No.12, MIG Housing Scheme, Koilpathu, Karaikal and the cost of the flat was fixed at Rs.2,50,000/-.  As the complainant had paid the initial deposit the provisional allotment order was  issued to her on 29.08.1997 with an intimation that she has to pay balance cost of Rs.1,87,500/- in monthly instalment of Rs. 3,054/- with effect from August 1997.   Further she was also informed that she has to pay instalments regularly before 10^th of every month without any default and in default of payment.   The flat was also handed over to the complainant on 29.08.1997 itself.   Prior to it she had executed a bilateral hire purchase instalment lease cum sale agreement in favour of Opposite Party.   Having taken over possession of the flat, the Respondent did not remit the monthly instalments regularly in time as agreed upon and thereby made the respondent to charge penal interest for the outstanding amount.   Instead the complainant had remitted only lump sum payment on various dates.  Even after the last lump sum payment of Rs. 50,000/- on 18.09.2000, the complainant was liable to pay the balance amount of Rs.62,594/- and she did not remit the said amount even before the expiry of completion period of hire purchase instalments (i.e.) in the year 2007.  Therefore the allegation that the complainant has remitted the entire cost of flat on 18.07.2000 itself is absolutely false and incorrect. As the complainant has not chosen to remit the balance cost, the O.P was not able to execute the sale deed.

9. Further in the year 2005 the government had implemented One Time Rebate Scheme vide G.O.Ms. No. 16/2005 dated 14.10.2005 and under the said scheme the amount due to be paid by the Complainant was calculated at Rs. 1,08,079/-. Out  of the said balance outstanding amount 95% of the interest had been waived and remaining 5% amount such as Rs. 5,404/- alone required to be remitted by the complainant.  The respondent had intimated the same to the complainant in its letter dated 31.07.2007 sent under certificate of posting. The said fact was informed by the respondent by making publication in Tamil daily newspaper namely Daily Thanthi and Dinamalar and required the complainant to remit the amount on or before 31.12.2006.

10. Even then the complainant has not chosen to avail the benefit of the said scheme by remitting the amount within stipulated time.  Hence the complainant was called upon to remit the balance amount as per the scheme by two letters respectively dated 25.04.2011 and 18.08.2011 addressed to flat address. On receipt of said two letters the complainant had remitted balance amount after verifying the accounts and go and the sale  deed executed and registered in her favour. At no point of time she had disputed the liability to the Opposite Party. Therefore she is stopped both legally and factually from maintaining this frivolous complaint.  All the communications have been sent to the flat address of complaint which is being given as residential address even in the sale deed which she got executed in her favour.  That being so the complainant has made false allegation that she has not received any correspondence earlier from the Puducherry Housing Board.

11. The opposite party further stated that the complainant is precluded under law from canvassing that she was not at all duly informed by the Puducherry housing Board earlier.  Besides the complainant had furnished her address as 12/5, Dr. Iqbal Street, Karaikal.  She has not informed the respondent about any change of her address. Further it is the bounden duty of complainant to approach the respondent to find out the balance payable and to be remitted towards the cost of  flat as she had taken possession of the flat in the year 1997 itself and had been possessing and enjoying the same since 1997. This respondent had acted well within the parameters of law and contract. Therefore there is no deficiency of service as claimed by complainant and it is only the complainant who is at fault by failing to perform her obligations to pay the instalments regularly and to see the entire cost of flat to be paid to Puducherry housing board before the completion period i.e. in the year 2007.  The complainant has remitted the balance cost only after due verification of accounts and got the sale deed executed in her favour on 15.03.2012. She has not raised even her little finger at any point of time with regard to the quantum of amount to be remitted by her. So the allegation that the opposite party  had collected excess amount of Rs. 1,92,523/- is absolutely false and without any iota of truth.  As there is no deficiency of service or unfair trade practice by opposite party the Complainant is not entitled under law to claim compensation.  Hence prayed for dismissal of the complaint

12.     The complainant was examined through her husband as Power Agent of the complainant as CW1 and Exs.C1 to C17 and Ex. C18 (marked on consent) and Exs. R1 to R10 were marked through him.  Thiru Rajendiran, Development Officer, Pondicherry Housing Board, representing Opposite Party was examined as RW1 and Exs.R11 to R17 were marked through him.

13.     Points for determination are :

          1. Whether the complainant is a consumer and whether the complaint is maintainable before this Forum?

2. Whether the complaint is barred by limitation?

3. Whether, there  is any deficiency in service attributed by the Opposite Party?

4. Whether the complainant is entitled for any relief?

            14. Point No.1:

           The complainant became an applicant of the Housing Scheme of the Opposite Party on submitting an application ex.R2 with the Opposite Party on 06.08.1997 by way of depositing a sum of Rs.10,000/- as EMD and as such the complainant was allotted an MIG Flat by the Opposite Party through Allotment Intimation Letter dated 29.08.1987 Ex.C1 with details of payment to be made by the complainant.  In this context, it is held that since the Member of the Housing Board is considered to be a consumer, the complainant in this case is construed to be a consumer and the complaint filed by the complainant against the OP is maintainable before this Forum.  This point is answered accordingly.

           15. Point No.2:

           The complainant entered into the Housing Scheme of the Opposite Party by way of executing a Hire Purchase Lease Agreement on 29.08.1987 (Ex.R1).  On the perusal of Ex.R1, it is found that the agreed period of payment of instalments is till August 2007 from the date of agreement, but the last payment towards the fulfillment of the terms of Hire Purchase Agreement was made by the complainant only on 10.10.2011 and the sale deed Ex.C14 was executed in favour of the complainant on 22.03.2012, the complaint filed on 12.10.2012 and hence, the complaint filed is well within the period of limitation.  This point is answered accordingly.

           16. Point No.3:

           The complainant submitted that being an applicant of the Housing Society of the Opposite Party the complainant was allotted with a unit of MIG Flat No. S.F/B1 at Kovilpathu village, Karaikal Ex.C1 and took possession of it by executing a Hire Purchase Lease Agreement Ex.R1 dated 29.09.1997.  As per agreement Ex.R1 the complainant paid a sum of Rs.62,500/- being 25% of the total cost of the schedule mentioned property and agreed by the complainant to pay the remaining 75% of the cost together with interest in 120 Equal Instalments at the rate of rs.3,500/- per month on or before 10^th of every month.  It was submitted by the complainant that as on 18.09.2000 the entire payment of the cost of the flat was paid by the complainant, but on further demand letter by the Opposite Party through Ex.C12 and Ex.C13, the complainant paid a sum of Rs.1,87,119/- Ex.C11 towards the balance cost of the flat, thereby making payment totaling to an amount of Rs.4,42,523/-  and a sale deed got executed in favour of the complainant on 22.3.2012 Ex.C14.  It is submitted by the complainant that the Opposite Party has collected an excess amount of Rs.1,78,718/-  since the benefit of "One Time Rebate Scheme" (OTRS) of the government as per the notification dated 24.10.2008 Ex.C18 was not extended to the complainant.  It is further submitted by the complainant that the Opposite Party was not proper in intimating the OTRS to the complainant and in not providing the split up details of payment in receipt issued through Exs. C6, C7 C8, C9, C10 and C11 and the complainant was constrained to make excess payment to the Opposite Party towards the cost of the flat thereby alleging deficiency in service against the Opposite Party.  But, the Opposite Party submitted that the complainant did not come forward to comply the OTRS of the government within the stipulated time and that the Opposite Party has not collected excess amount towards the cost of the flat. 

           17. Both sides were heard and records were carefully perused by this Forum and observes as follows:

           The complainant entered into an Hire Purchase Lease Agreement with Opposite Party Ex.R1 wherein it is mentioned that the complainant has paid a sum of Rs.62,500/- being 25% of the total cost of the schedule mentioned property as initial payment and remaining 75% of the cost together with interest in 120 instalments at the rate of 3500/- per month to be paid on or before 10^th of every month and it was also agreed to pay the penal interest on belated payments of instalments towards the cost of the flat.  On the perusal of the payment schedule made by the complainant, it is found the payment of the instalments by the complainant was not regular and hence, the complainant is liable to pay the penal interest for the belated payment as agreed upon by the terms of the agreement Ex.R1 and as per the allotment repayment intimation Ex.C2. 

           18. It is submitted by the complainant that as per Ex.C9 dated 18.09.2000, the entire cost of the flat was paid within the period agreed as per the agreement Ex.R1 but, on the perusal of Ex.R1 and Ex.C2, it is observed that the agreed amount to be paid as admitted by the complainant is Rs.3,66,480/- which include the principal and interest.  On Perusal of the repayment schedule of the complainant, it is found that the complainant has paid only a sum of Rs.2,50,000/- as on 31.07.2007 and hence, as per the terms of the agreement, the complainant has not acted upon and paid within the time stipulated.   It is pertinent to note that the complainant has made a further payment of Rs.1,87,119/- ex.C11 on 10.10.2011 on demand letters Ex.C12 and Ex. C13 dated 03.05.2011 and 08.08.2011 respectively issued by the opposite party and the sale deed got executed in favour of the complainant on 22.03.2012 and there was no trace of protest regarding alleged excess payment received by the opposite party towards the cost of the flat. 

           19. It is observed by the Forum that even though the complainant submitted that the entire cost of the flat was made as on 18.09.2000 the complainant has not taken any steps to call upon the opposite party to execute the sale deed in favour of the complainant and it was only on 10.10.2011 after making the last payment of Rs.1,87,119/- by the complainant the opposite party was called upon by the complainant through a letter dated 10.10.2011 to execute the sale deed in favour of the complainant.  

           20. It is further submitted by the complainant that since the OTRS scheme was not intimated in time, the complainant could not avail the benefit of OTRS and further submit that the payment of rs.5,404/- made through Ex.C10 was on OTRS.  On the perusal of notification given by the government in Ex.R12, it is pertinent to note that the notification was sent to the complaint mentioned property of the complainant by certificate of posting on 31.12.2005 Ex.R12 and further the extension of time for availing the benefit of OTRS was published in Tamil Daily News paper "Dailiy Thanthi" dated 01.12.2006 (Ex.C15) and Dina Malar dated 29.11.2006 (Ex.R16) and further in the evidence of CW1, it is admitted by the CW1 that the OTRS was informed over phone by the Opposite party.  Inspite of all instances, the complainant has not chosen to avail the benefit of OTRS within a stipulated time and the contention that the payment made on 23.07.2008 through Ex.C10 was towards the OTRS payment does not bear any proof of payment towards the OTRS and moreover, the alleged payment in Ex.C10 was paid after lapse of one year from the date of stipulated time given in OTRS notification.  Further, the letter given by the complainant to the Opposite party dated 10.10.2011 (Ex.R8) does not whisper any word regarding the excess payment received by the opposite party or any discontent towards the payment. 

           21. It is submitted by the complainant that the full payment towards the cost of the flat was made within the stipulated time i.e. before 31.7.2007 whereas, the payment schedule and letter written by the complainant Ex.R8 clearly shows that there was balance payment to be made by the complainant as on 31.07.2007(Ex.R1)  and moreover the OTRS of the government expired as on 21.12.2006 (Ex.R15 and Ex.R16).   In pursuance of the observations held above, this Forum is of the view that the contentions of the complainant are mendacious and unsustainable and hence, it is held by the Forum that the Opposite Party has not attributed any act of deficiency of service as against the complainant.  This point is answered accordingly.

           22. Point No.4:

In view of the discussions made supra, the complainant has failed to establish that the opposite party has committed deficiency in service and therefore, this complaint is liable to be dismissed.

23. In the result, the complaint is hereby dismissed. No costs.

Dated this the 2^nd day of May 2016.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

    MEMBER

(V.V. STEEPHEN)

    MEMBER

COMPLAINANTS' WITNESS:

CW1           21.03.2014           G. Selvaraj      

OPPOSITE PARTY'S WITNESS: 

RW.1          31.07.2015           S.N. Chandhirasekaran, Assistant Engineer

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:   

 LIST OF MATERIAL OBJECTS:      NIL

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

    MEMBER

(V.V. STEEPHEN)

    MEMBER