(Passed on 30.09.2013)

Per Mr B A Shaikh, Hon’ble Presiding Member

1.      These seven appeals are being decided by this common order as common question of law & facts is involved in them.  These appeals are preferred against seven identical orders dtd. 21.04.2007 passed by District Forum, Nagpur in CC/06/186, CC/06/187, CC/06/188, CC/06/189, CC/06/190, CC/06/191, CC/06/199 by which the said seven complaints have been disposed of with a direction to the respective complainants to file fresh complaint and it is made clear under it that their rights are protected.

2.      The common case of complainants in all these seven complaints in brief is that they had entered into agreement of sale of the respective flats with the original opposite parties (for short “the O.Ps.”) Nos.1, 2 & 3.  The O.P. Nos. 2 & 3 are having 1/3^rd share in the land upon which the apartment comprising of different flats was to be constructed by O.P.No.1 M/s Malti Constructions. The said O.P. Nos. 1 & 2 and other share holders of that land gave irrevocable power of attorney to the O.P.No.1 and thereby they agreed for development of that plot.  The O.P.No.1 developed the said plot under name and style as “Gangadham Apartments” containing various self contained residential apartments.  As per agreement entered into both the parties, the respective flats having area described in the respective complaints and the respective share in the land which is also described in the complaint was agreed to be sold to the respective complainant by the O.Ps. The complainants also paid the cost of the respective flats and the O.P.No.1 also acknowledged the receipt thereof by issuing consolidated statement signed by him. The complainant also paid separately charges for water meter, electricity meter and installation of power transformer and registration charges of the sale-deeds and all other taxes to the O.P.No.1. The possession of respective flat has been also handed over to the respective complainant after receiving full price and other extra charges as per agreement to sell. The possession letter dtd.21.03.2004 has been issued to the respective complainant. However, the O.Ps. did not execute the sale-deed of their flats in their favour, despite of making oral request as well as sending reminder letter dtd.29.06.2005.  Therefore, in each of the complaint, the common reliefs are sought by the complainants praying that the O.Ps. be directed to execute the sale-deed of the respective flats in their favour as per terms & conditions mentioned in agreement to sell dtd.22.04.2003 and also to pay to respective complainants Rs.25,000/- towards mental harassment and Rs.10,000/- towards cost of each complaint.

3.      The O.P.No.1 filed written version and resisted the complaint. It came with a plea that the complaints are not maintainable in view of dismissal of earlier complaints Nos. CC/05/250, CC/05/276, CC/06/6, CC/06/7, CC/06/8.  It also submitted that the complaints pertain to excess area of the flat constructed as per revised sanctioned map dtd.02.12.2004 and therefore, the complainant be directed to approach the Civil Court for proper adjudication of their claim. It also submitted that as per arbitration clause No.21 of the agreement, the Forum has no jurisdiction to decide the complaints. It also submitted that as per revised map dtd.02.12.2004 the complainants are liable to pay the amount for excess area of more than 344 sq.ft. and hence a letter dtd.13.06.2005 was issued by it to the complainants for payment of balance amount. But they have not paid the same.  It had filed complaints Nos. CC/05/250, CC/05/276, CC/06/6, CC/06/7, CC/06/8 before the Forum below and had prayed directions to the complainants for payment of balance amount but they are disposed of as per order dtd.12.06.2006 due to non-maintainability.  It is therefore, requested by O.P.No.1 that the complainants be directed to pay balance amount of excess area to it and if such payment is made it is ready & willing to execute the sale-deed in their favour. The Commissioner appointed by the Forum in one of the complaints inspected the flat and found excess area more than 37.86 sq.mtr. i.e. 407.37 sq.ft.  It, therefore, prayed that all the complaints may be dismissed.

4.      The O.P.Nos. 2 & 3 filed their common written version and they came with a case that they have got 2/3^rd undivided share in the land and they had assigned the right to O.P.No.1 to develop the said land as per agreement and they had also executed power of attorney in its favour. They further submitted that they revoked power of attorney and cancelled said agreement vide legal notice dtd. 30.09.2006. They published the said notices in local news papers on 01.10.2006. The entire transaction referred to in the respective complaints was entered into between the respective complainants and O.P.No.1 only and O.P.No.1 received the entire amount payable under the agreement to sell. The O.P.Nos. 2 & 3 are not liable to execute the sale-deed in favour of the complainants and also to pay compensation to the complainants. They also submitted that if the complainants pay to them outstanding amounts they will be ready & willing to execute the sale-deeds in their favour.  They also submitted that they have filed Civil Suit No. 11/2006 seeking injunction restraining O.P.No.1 taking steps pursuant to agreement of development or power of attorney dtd. 18.09.2002.

5.      The Forum below after going through the evidence brought on record, came to the conclusion that O.P.No.1 has not submitted expert’s report showing the additional construction made by the O.P.No.1 in their respective flats and its price. It also observed that complainants have also not proved as to what is the area of additional construction in their possession or whether the price of the said additional construction is agreeable to them and they have also not produced expert’s report to that effect. The Forum below also observed that unless these matters are not settled in between both the parties, the demand made by the complainants is pre-mature.  It therefore, passed seven identical impugned orders and thereby disposed of the seven complaints protecting the rights of the complainants for filing fresh complaints. It also directed that both parties shall bear their own cost.

6.      Feeling aggrieved by the said seven orders, the original complainants have preferred these seven appeals.

7.      We have heard Adv. Smt A. V. Deshpande for the appellants, Adv. Mr Bhave for the respondent No.1 and Adv. Mr Mehendiratta for respondent Nos. 2 & 3.  We have also perused the papers placed before us.

8.      The learned advocate of the appellants made common submission in all these appeals that complaints are maintainable before the Forum in view of provisions of Sec. 3 of Consumer Protection Act (for short CP Act). He further submitted that the respondent No.1 did not obtain prior approval of the complainants for obtaining sanction of second map from the Corporation and without their consent it also made additional construction and therefore, the complainants are not liable to pay additional amount to the respondent No.1.  She further submitted that the complainants have paid entire price of their respective flats to respondent No.1 and revocation of power of attorney by respondent Nos. 2 & 3, does not defeat their rights accrued prior to revocation of said power of attorney and therefore, all the respondents are liable to execute sale-deed in favour of the respective complainants / appellants.  She has relied upon observation made in the case of G.L. Narasimham Vs. B S Venkateswarulu and Anr. in Revision Petition No.3415/2008, reported in 2010 (I) CLT 392, (National Commission).  It is held by Hon’ble National Commission that consumer cannot be made to suffer because of the dispute between the builder and the owner of the property when consumer has paid substantial amount and is willing to pay balance amount at the time of execution of sale-deed and when building has been already constructed and possession has been already handed over.

It is, thus, argued by learned advocate of the appellant that the Forum below has not considered properly the material facts & circumstances, vis-a-vis the legal provisions and erroneously disposed of the complaints. She, thus, urged that the impugned orders may be set aside and the reliefs sought in the complaints may be allowed.

9.      On the other hand, the learned advocate of respondent No.1 supported the impugned order and he has also drawn our attention to the terms & conditions of the agreement executed by both the parties and submitted that there is no merit in these appeals and hence, they may be dismissed.

10.    The learned advocate of respondent Nos. 2 & 3 reiterated the case of respondent Nos. 2 & 3 as put-forth above and submitted that Smt Rashmi Dande, Architect was appointed in complaint case No. CC/05/276 for inspection of the apartments regarding extra construction carried out and she submitted a report mentioning extra construction which is carried out and in possession of respective complainant of that complaint.  He further submitted that the Forum did not consider that report as both the parties did not give consent to it. He, therefore, submitted that the Forum below has rightly appreciated evidence brought on record and therefore, the impugned orders are just & proper and need no interference.

11.    At the outset we find that all the complaints are maintainable as per well settled law though there is clause in agreement to sell about settlement of claim through arbitration, moreover, as per aforesaid decision of Hon’ble National Commission, complainants cannot be made to suffer because of dispute in between builder / developer and land owners, in the  facts & circumstances of present case.

12.    The agreement to sell dtd.22.04.2003 entered into both the parties is not disputed.  As per clause No.6 of that agreement, the purchasers agreed that the vendors shall have full rights to amend the deed of declaration if the situations warrants and in such events the undivided share and interest of the purchasers in the said land and the super built area of the apartment chosen shall be proportionately reduced or increased and that the proportionate cost of same shall be mutually adjusted accordingly. Thus, the said clear term of the agreement has given right to respondent No.1 to obtain permission for additional construction from the competent authority as per amended deed of declaration and that the purchasers are bound to pay proportionate cost of the additional construction, if any made, as per amended deed of declaration and permission granted by Municipal Corporation. In the instant case, it is found that the respondent No.1 has made additional construction in pursuance of the aforesaid clause of the said agreement.  Hence, the appellants / complainants are liable to pay proportionate cost of the said additional construction.  The area of additional construction can be considered on the basis of actual measurement. The opposite parties can claim price of said additional construction only at the rate existing on the date of respective agreement as per ready reckoner maintained by Government, when in agreement there is such rate for additional construction was fixed. The cost of that additional construction thus can be fixed as per the ready reckoner maintained on the date of agreement of sell. The disposal of the present complaints by the Forum below by observing that there is no sufficient evidence on record about additional constructed area of its price, is uncalled for and unwarranted under the facts & circumstances of the present complaints. The direction could have been given to the complainants / appellants to pay proportionate cost of the additional construction as per the rates mentioned in the ready reckoner maintained by Government on the date of the agreement to sell and at the same time direction ought have been given to the O.Ps. / respondents to execute the sale-deeds in favour of the respective complainants at the expenses to be borne by the respective complainants. Therefore, all these appeals deserve to be partly allowed.

ORDER

i.        The appeal Nos. A/07/581 to A/07/587 are hereby partly allowed.

ii.       The impugned orders dtd.21.04.2007 passed in seven complaints bearing Nos. CC/06/186, CC/06/187, CC/06/188, CC/06/189, CC/06/190, CC/06/191, CC/06/199 are hereby set aside.

iii.      The said seven complaints are partly allowed.

iv.      The complainants / appellants shall pay to the respondent Nos. 1 ,2 & 3 additional price of the additional construction at the rate specified in ready reckoner maintained by Government on the date of  respective agreement to sell of each flat.

v.       The original O.P.Nos. 1, 2 & 3 / respondent Nos. 1, 2 & 3 herein shall execute sale-deed of the respective flats including that of the additional construction, in favour of the respective complainants within one month on receiving the aforesaid additional price of the additional construction.

vi.      The expenses of the said sale-deeds shall be borne by the respective complainants.

vii.     The respondent Nos. 1, 2 & 3 herein shall pay to the respective complainants in each complaint Rs.3,000/- towards mental harassment and Rs.1,000/- towards cost of complaint.

viii.    No order as to cost in this appeal.

ix.      Copy of this order be supplied to the parties.