NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 504 OF 2012.
along with
(I. A. No. 03 of 2012)
(Against the order dated 02.11.2011 in Appeal No. 205 of 2011 U.T. State Consumer Disputes Redressal Commission, Chandigarh)
Chanidigarh Housing Board (CHB), Sector-9, Chandigarh.
……Petitioner.
Versus
Ms. Poonam Singh through her Attorney Bhartendu Sood s/o Late Sh. Bhupinder Nath, House No. 231, Sector-45-A, Chandigarh –160047. …….Respondent
BEFORE:
HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner (s): Mrs. Rachna Joshi Issar, Advocate
Pronounced on: 3rd September, 2012
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
O R D E R
In this revision petition there is challenge to order dated 2.11.2011, passed by U. T. State Consumer Disputes Redressal Commission, Chandigarh (for short as, ‘State Commission’) vide which appeal of the petitioner against order dated 27.6.2011, passed by the District Consumer Disputes Redressal Forum-I, U. T., Chandigarh(for short as, ‘District Forum’) was dismissed.
2. Brief facts are
that respondent/complainant was allotted Flat No. 231, Sector 45-A, Chandigarh on hire-purchase basis, vide allotment letter dated 07.02.1989.
She paid all the installments, well before the expiry period i.e. April, 2001 but to her surprise when she applied to petitioner/OP for “No Dues Certificate”, she was told that a sum of Rs.52,172/- was recoverable from her, which included 5 annual and 7 ground rent installments.
On her protest, petitioner reduced the aforesaid amount to Rs.41,131/- vide letter dated 15.9.2009, which was further reduced to Rs.36,819/- vide letter dated 18.5.2010, on protest of the respondent.
Still discontented, respondent again protested vide letter dated 25.8.2010, upon which petitioner, vide letter dated 13.9.2010 drastically reduced the outstanding amount to Rs.21,019/- and conceded that all monthly and ground rent installments stood cleared and the outstanding amount towards the penal interest.
On receipt of the calculation sheet in respect of the aforesaid amount of Rs. 21,019/-, respondent came to know that petitioner had charged Rs.42,395/- as penalty on 83 installments which were delayed by more than 3 months @25% of the installment amount by invoking condition no.7 of the allotment letter.
Whereas, the maximum penalty on each delayed installment could be Rs. 140/-.Therefore, respondent vide letter dated 7.10.2010, requested the petitioner to calculate the penalty on 83 installments @ Rs.140/- per installment and to refund Rs. 9,756/-, after taking into account all payments made by her.
When grievance of the respondent was not redressed, she filed a complaint under Section 12 of the Consumer Protection Act, 1986 (for short as ‘Act’).
3. Petitioner in its written statement took the plea that the dwelling unit was allotted to the respondent, who had accepted the terms and conditions of the allotment letter.
As per conditions of allotment, allottee was required to make the payment in time, so as to evade penal consequences.
Since, petitioner did not make the payment in time, therefore she was burdened with interest strictly in accordance with rules and notification dated 30.8.1996, which provide for imposition of 25% penalty in case of default in making payment by the allottee. Thus, there was no deficiency in service on their part.
4. District Forum vide order dated 27.06.2011,
held that since no notice was given, therefore imposition of penalty @ 25% on the installments amount is illegal and unjustified.
It directed the respondent to calculate liquidated damages as mentioned in its order.
5. Aggrieved by the above directions of the District Forum, petitioner filed an appeal before the State Commission, which dismissed the same with cost of Rs.5,000/-.
6. We have heard the learned counsel for the petitioner and have perused the written submissions as well as the record.
7. It has been contended by the learned counsel that there is no deficiency of service on the part of the petitioner in demanding the unpaid arrears payable as per agreed terms between the parties. It is the respondent who had breached the terms and conditions of the allotment letter. Thus, present complaint is not maintainable. In support, petitioner’s counsel relied upon the following judgments;
(i) Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines and Another,
(2000) 1 Supreme Court Cases 66 ;
(ii) Interglobe Aviation Limited Vs. N. Satchidanand,
(2011) 7 Supreme Court Cases 463 and
(iii) Bihar State Housing Board and Others Vs. Prio Ranjan Roy,
(1997) 6 Supreme Court Cases 487.
8. Respondent in her complaint had sought the following reliefs ;
(a) refund back the excess amount of Rs.9,756/- paid by her to the Board against various Notices.
(b) to pay interest on the excess amount @ 24%
(c) to pay to the applicant a suitable amount for the mental agony she suffered in last two years as the Hon’ble forum may deem fit. She had to make five representations and every time her stand was vindicated. In the process she lost valuable time and money both.
(d) cost of litigation”.
9. District Forum in its order has held;
“8. Now, it is clear that the liquidated damages for the delayed payment shall not exceed 10% of the amount due. It is also clear that in case of default for more than three consecutive months in respect of any installments, the tenancy shall be liable to be terminated. However, the chairman may review the allotment and tenancy before referring the case to the Competent Authority under Chapter VI of the Act, on payment of penalty @ 25% of the amount of installments due.
9. Admittedly, in this case, neither the tenancy has been terminated nor the complainant has been evicted from the dwelling unit, therefore, OP had right to claim the liquidated damages which does not exceed 10% of the amount due. Learned counsel for the OP made a reference to the notification dated 30.08.1996 whereby vide section 6(13) (a), it has been stated that in the sub regulation (4) for the figure 10 the figure 25 shall be substituted. Admittedly, the said notification did not have retrospective effect and will apply prospectively from 30.08.1996 onwards. It is not in dispute that the allotment of the unit was made to the complainant on 06.02.1989 vide allotment letter (Annexure C-6). Therefore, the notification referred to above dated 30.08.1996 will not apply to it and the OP has no right to charge the liquidated damages @ 25%.
10. Moreover, the condition No. 7 of the allotment letter referred to above could be invoked after issuing a notice to the allottee to provide him an opportunity of being heard. No such notice was issued, therefore, the imposition of penalty @ 25% on the installment amount is illegal and unjustified.
11. Confronted with this type of the situation, OP is directed to calculate the liquidated damages as per the observations made hereinabove and to give the refund of the amount, if received, in excess from the complainant within 30 days from the date of receipt of certified copy of this order. OP is also directed to pay to the complainant a sum of Rs. 10,000/- as compensation for mental agony and harassment besides Rs. 2,500/- as costs of litigation, failing which the OP is liable to pay the entire amount to the complainant with interest @ 9% p.a. from the date of the filing of the complaint i.e. 03.02.2011 till its realization”.
10. Petitioner instead of calculating the liquidated damages and to refund the amount, if received in excess from the respondent as directed by the District Forum, filed an appeal before the State Commission. The State Commission rightly dismissed the appeal observing as under ;
“The record would show that all is not well in their Accounts Wing where either incompetent persons are posted who are unable to workout the arrears due from the allottee or they intentionally do not workout proper arrears and give inflated figures to injure the financial interest of the allottees. The higher officers appear to have left the matter to these unscrupulous officials instead of getting the audit done from some independent agencies with respect of each allotte to ascertain as to what amount has been paid and is due from them.
The OP/appellant furnished the statement in respect of the ground rent showing that the complainant has deposited a sum of Rs.13478.32 in excess of the ground rent due from him as workedout upto 10.2.2010. If ground rent had been deposited in excess there was no question of issuing a notice to the complainant by the OP/appellant alleging that ground rent was due from him but even in spite of that such notices have been issued by the OP/appellant. The complainant has produced a notice Annexure OP-5 dated 18.5.2010 in para 3 of which it is specifically mentioned that the complainant had not deposited the ground rent for a period from 10.2.2006 and was liable to pay amount of ground rent alongwith applicable rate of penal interest. There is another letter Annexure-2 dated 12.1.2009 in which also the complainant was told that he had not deposited the ground rent./lease money annually and it was due from him for the period from 10.2.2004 to 9.2.2010 which he was liable to pay alongwith penal interest. On the other hand they have themselves produced two account statements showing that he had continuously been depositing the said amount, which was apportioned to a previous date. The learned Counsel for the OP/appellant is at a loss to explain as to how the complainant was in arrears of ground rent when he had already deposited Rs.13,478.32 in excess as per their own record. If the officials of the OP/appellant had applied their mind such a notice regarding the arrears in deposit of ground rent would not have been issued to the complainant.
The manner in which the account of complainant and may be of many other allottees and tenants are maintained also leaves much to be desired. The complainant was informed vide a notice Annexure-2 dated 12.1.2009 that a sum of Rs.52,172/- was due from him. When he questioned the accuracy of the amount, another letter Annexure -3 dated 15.9.2009 was issued reducing the said amount of Rs.41,131/-. This is certain that during that period of 8 months complainant had not deposited any such amount. Further the complainant was not satisfied with the calculations and he again sent another letter upon which the amount was brought down to 36819/- as per Annexure -4 dated 18.5.2010. Dissatisfied the complainant again represented and the officials of the OP/appellant were obliged to further bring down the amount to Rs. 21,019/-vide Annexure-5 dated 13.9.2010. Needless to mention that during this period of about one year and 8 months no such amount of 30,000/- had been deposited by the complainant which could reduce the figure from 52,172/- (as on 12.1.2009) to Rs.21,019/- (as on 13.9.2010). It appears that the allottees are at the mercy of such employees of the OP/appellant who inflate figures according to their whims and can reduce the same if challenged. Even after the present complaint was filed against the OP plunging it into litigation, it appears no action would have been taken against the said employees who are playing with the figures and are apparently deficient in rendering service, where they cannot even calculate the amount due from the allottees and can give inflated figures to scare the allottees and force them to deposit extra amount with the OP/appellant. The inefficiency of the OP/appellant in calculating the amount due from the allottee is in itself a deficiency in service
It is not only that, such things happen before the complainant come to Consumer Fora but even after the present case was decided a similar trick has been played by the OP/appellant. As per the accounts statement provided by the OP, referred to above, the complainant had already deposited a sum of Rs.13,478.32 in excess of amount due from him as ground rent. As regards the EMIs’ the other statement shows that a sum of Rs.34,496.65 was due from complainant towards installments, however, during the pendency of appeal the OP/appellant submitted an application dated 30.9.2011 in which the ground rent paid in excess was mentioned to be 6,533/- When questioned as to how this amount came down from Rs.13,478/- to Rs.6,533/- the learned Counsel for the appellant was at a loss to explain. His contention was that the additional amount was adjusted towards the payment of installments. If that be so then why this amount of Rs.6,533/- was also not adjusted towards the arrears due from the complainant could not be answered by the learned Counsel. It is therefore, clear that the OP is not maintaining the accounts of the allottees properly and this by itself constitutes deficiency in service.
The learned Counsel for the appellant has not been able to point out any draw back in the order passed by the learned District Forum which in our opinion is perfectly legal and valid. There is no merit in this appeal and the same is accordingly dismissed with litigation costs of Rs.5,000/-.
In order to safeguard the interest of the OP/appellant from its own employees, it is made clear that the OP/appellant would be free to recover amount of compensation and litigation costs etc. from its employees due to whose fault proper accounts were not maintained and notices depicting the correct amount due from the complainant was not issued. It would however, be done after giving show cause notice to such employee(s) of being heard in accordance with Punishment and Appeal Rules applicable to such employees”.
11. In nutshell respondent’s case is that when she applied for “No Dues Certificate’’, she was told that certain amount was recoverable from her which includes certain annual as well as ground rent installments. On making protest by her, petitioner’s Board went on reducing the same. Ultimately, she was asked to pay a sum of Rs. 21,019/-.
12. The defence of petitioner as per its written statement is that, respondent has breached the terms and conditions of the allotment letter. Moreover, respondent is not entitled to any refund, rather Rs. 21,019/- are due towards her.
13. Averments made by respondent in paras 4 to10 of her complaint have been admitted by the petitioner in its written statement.
14. In para 12 of the complaint, respondent has averred that;
“No such Notice was issued to her for imposing penalty of 25% on the installments and the same is unlawful and not inconformity of the conditions of the allotment letter”.
15. Petitioner in response to para 12 of the complaint has simply stated that;
“the penalty has been imposed strictly as per rules and notification dated 30.08.1996 which provides imposition of 25% penalty in case of default in making payment by the allottee”.
16. Thus, there is no specific denial to the averment that;
“ No such notice was issued to the respondent before
imposing penalty of 25% ”.
17. Hence, the averments made by respondent in this regard shall be deemed to be admitted as correct. Moreover, Fora below have held that no such notice was issued, therefore the imposition of penalty of 25% on the instalment amount is illegal and unjustified. We find no reason to disagree with these findings of the Fora below.
18. None of the judgments as relied upon by learned counsel for petitioner are applicable to the facts of the present case.
19. Present revision petition has been filed under Section 21(b) of the Act. It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order.
20. Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora”.
21. Thus, no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under section 21 (b) of the Act, since two Fora below have given cogent reasons in their orders, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.
22. It is not that every order passed by the Fora below is to be challenged by a litigant even when the same is based on sound reasoning.
23. Under these circumstances, the present petition is without any legal basis and the same is hereby dismissed with cost of Rs. 10,000/-.
24. Petitioner is directed to deposit cost of Rs.10,000/- (Rupees Ten Thousand Only) by way of demand draft, in the name of “Consumer Legal Aid Account” of this Commission, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
25. List on 12.10.2012 for compliance.
……………………………J.
(V.B. GUPTA)
PRESIDING MEMBER
……………………………...
(VINAY KUMAR)
MEMBER
SSB
