07-12-2015 – Due to long and uncertain period of absence of the Members, single member bench of President is functioning in their absence, in view of the order of Hon’ble National Commission in Revision Petition No. 4434 of 2014, in the matter of Mr. Netaji Surrendra Mohan Nayyar -vs- Citibank; and the judgement passed by Hon’ble Kerala High Court in the W.P. (C) No. 30939 of 2010 (N) P.K. Jose -vs- M. Aby & ors.

2. Heard learned counsel for the appellant on the prayer for condoning the delay of about 66 days in filing this appeal and also on merits of the case.
3. On merits, he submitted that the learned District Forum has issued direction to complete the flat in question and hand over the same to the complainant, without there being any such prayer in the complaint petition. He further submitted that the complainant moved the Ranchi Municipal Corporation (R.M.C for short) for registration of flat which prayer was rejected. Moreover, there was an arbitration clause in the agreement. He further submitted that the agreement was rightly cancelled as the complainant did not make payment as per the terms of the agreement.

4. The complainant’s case in short was as follows. He entered into an agreement on 15.6.2008 with the O.P-appellant (Builder for short) for the purchase of a flat for a sum of Rs. 16,92,600/-. After paying initial booking amount, he got the property financed  by Axis Bank  Ltd., Ranchi Branch, for which the Bank sanctioned an amount of Rs. 14,30,000/-. The Bank accordingly made payment from time to time which was accepted by the Builder.

As per the agreement the construction was to be completed, at best by December 2009. The complainant paid Rs. 12,58,398/- till December, 2009 and the final disbursement of Rs. 3,30,000/- was lying with the Bank which the Bank did not pay as the construction was not completed within the schedule time. The Builder went on assuring to hand over the property but then he sent a legal notice dated 28.11.2011 threatening to cancel the agreement if the balance amount was not paid. Nothing was indicated in the legal notice about the completion of the project, rather it was vaguely said that about 90% construction was completed. The Builder has been asking the complainant either to quit and accept the amount paid or pay him extra amount more than the agreement, saying that the rate of property has increased. As the complainant did not agree to such threats, the Builder issued a legal notice dt. 3.12.2012 cancelling the agreement and asking the complainant to receive the amount back. The complainant made the following prayer in the complaint petition.

“Therefore, I seek your shelter so that justice is done to me and I shall be allowed legally to move into my property and be rewarded for the pain and sacrifices I have putting since 2008.”

5. The case of the Builder in short was that as the complainant did not make payment as per the terms of the agreement it was cancelled. His request for registration before the R.M.C. was rejected. There was an arbitration clause in the agreement.

6. So far as the first contention raised on behalf of the Builder, that there was no prayer in the complaint, to complete the flat and hand over the same to the complainant, is concerned, it is settled position that keeping in view the respective cases of the parties, the relief can be moulded. The case of the complainant is substance was that on the one hand, the Builder had violated the agreement by not completing the construction within the stipulated time and on the other hand illegally cancelled the agreement, alleging non payment of the balance amount. Moreover, prayer was made for allowing him to move into his property and be awarded for pain and sacrifices, he has been suffering. Thus, it is clear that the complainant wanted possession of the flat after completing the construction, and for consequential reliefs.

7. So far as the arbitration clause is concerned, it is settled position that in view of section 3 of the Consumer Protection Act, 1986, the remedy before the Consumer Forum is an additional remedy and the arbitration clause would not be a bar in moving the Consumer Fora.

8. Regarding the rejection of the prayer of the complainant for registration of flat by R.M.C., it appears from the copy of the order produced by the learned counsel for the Builder that on the alleged ground of non payment of balance amount, the prayer for registration was refused. Such order also cannot be a bar to the complainant to file the complaint case. Moreover, the prayer made in the complaint case could not be considered and granted by the R.M.C.

9. There is nothing to show that the Builder completed the construction within the stipulated time and therefore apparently the Builder was guilty of violating of the terms of the agreement. Further, the Builder could not show clearly and specifically as to when and at what stage the complainant did not make payment of the rest amount, in order to justify the cancellation of the agreement.

10. Moreover, the complainant proved that according to the loan sanction letter, which was within the knowledge of the Builder, the final disbursement of loan was to be made after registration of the flat in question. As it was not completed, it was not registered and therefore, such non payment of final disbursement by the Bank could not be a ground to cancel the agreement.

11. It also appears that the complainant handed over a cheque of             Rs. 4,34,202/-  dated 14.12.2011 to the Builder, but it was not accepted.

12. In the facts and circumstances of this case, the learned District Forum has rightly held that the non completion of flat in question within the stipulated period and cancelling the agreement, both amounted to deficiency in service and accordingly rightly directed the Builder to complete the flat in question and hand over the same within the period of three months from the date of the order, failing which, the complainant has been given liberty to take necessary steps for enforcement of the order as per the Act.

13. A sum of Rs. 20,000/- by way of compensation and Rs. 2000/- by way of litigation cost has been allowed which also appears to be nominal.

14. After hearing learned counsel for the appellant at length and considering the materials produced, in my opinion, even if, the delay of about 66 days in filing this appeal is ignored, no grounds are made out for interference with the impugned order.

15. However, it is clarified that the cancellation of the agreement having been held bad, the agreement between the parties revives, and therefore it is directed that after handing over the possession of the flat, the Builder will execute a registered sale deed, on receipt of the balance amount, as per the agreement.

Accordingly, this appeal is dismissed, with the clarification and further direction as aforesaid.

           Issue free copy of this order to all concerned for information and needful.

            Ranchi,

            Dated:-07-12-2015