(Date:18.02.2016) As per :- Hon’ble President, Mr.Sharad D.Madake

JUDGEMENT

Facts giving rise to this complaint may be stated, in brief, as follows:-

[1]        The present complaint is filed under section–12 of Consumer Protection Act, 1986 by the Complainant against the Opponent Nos.1 and 2. The notices are served to the Opponent nos.1 and 2.  They appeared and filed their say.  

[2]        The Complainant is resident of Kolhapur. The Opponent nos.1 and 2 are Builder, Developer and Medical Practitioner. The Complainant entered into registered agreements for sale paying full stamp duty with the Opponent no.1, dated 24.04.1994, in respect of the property bearing C.T.S. No.1716, E ward, Rajarampuri, Kolhapur. The Complainant has fulfilled her part of the agreement for sale while the Opponents have not complied with their duties under agreement to sale and also under law and have been deficient in providing the services of builder / developer and are responsible for unfair, monopolistic and restrictive trade practices.

[3]        According to the Complainant, the Opponents were under an obligation to provide to the Complainant the services are (a)The property is agreed to be provided by the Opponents as per the specification and amenities mentioned in the Sch C to the agreement and common areas mentioned the Sch D to the agreement particularly the common passage on the ground floor (subject matter of Reg Civil Suit No.669/96 and now Reg Civil Appeal No.239/11). (b) Completion certificate as required under law and as mentioned in the agreement to sale from Kolhapur Municipal Corporation. (c) Deed of Apartment in favour of Complainant as per law and as required by agreement for sale dated 24.02.1994. (d) Association of Apartment owners as per the agreement for sale, deed of declaration and requirements of law.

[4]        The Complainant had got possession of the property on 24.12.1994.  The Complainant also stated that in clause no.14(a) of the agreement for sale the Opponents have undertaken to prepare the conveyance /declaration and rules, regulation and bye laws of the condominium.  Inspite of this, the Complainant’s oral and written requests the Opponents have failed and neglected to perform their aforesaid duties in the agreement and as per law.  The cause of action lastly arose due to the notice issued on behalf of the Complainant to the Opponents on 22.05.2012 and reply of refusal by the Opponents on 12.07.2012, considering the unnecessary litigation, delay and conduct of the Opponents. Hence, this complaint came to be filed and the Complainant prayed for the following relief as Rs.10,00,000/- (Ten Lakhss Only)  towards compensation for mental harassment for not providing the aforesaid services and Rs.10,000/- (Ten Thousand Only)  towards costs of this complaint.

[5]        The Complainant amended the complaint as per the order passed by this Forum on 08.01.2015.  The Complainant submitted that after entering into an agreement to sale got the change of the use of said flat for his hospital purpose exclusively for the purpose of earning his livelihood by means of self employment.  The Complainant does not have any other hospital for his livelihood.   

[6]        The Complainant has filed affidavit of evidence as well as relevant documents as – Registered agreement for sale, Notice of the Opponents and Reply notice from the Opponents.

[7]        The Opponents filed written version of defence and contested the complaint.  According to the Opponents, the complaint is totally wrong, illegal and bad-in-law hence denied the same in toto.  The present complaint is not tenable in present form.  The Complainant has made Opponent no.2-Dr.Medha Prakash Shahapurkar as party to this complaint as a Power of Attorney Holder of original landowner late Shri.Sanjay Bhalchandra Nigundkar who is already expired and due to which the Power of Attorney has come to end.  Thus, this complaint deserves to be dismissed at the outset.  The description of properties mentioned in para. no.1 of the complaint is incorrect and incomplete and the same is not admitted by the Opponents.  The allegations in the complaint, in respect of unfair monopolistic and restrictive trade practices are hopelessly baseless and specifically denied by the Opponents.

[8]        The Opponents averred that it is necessary to note in respect of this issue the Complainant had already approached the Hon’ble Civil Court by way of R.C.S.No.669/1196.  In respect of this issue a Reg. Civil Appeal No.239/2011 is pending before the Hon’ble District and Session Judge, Kolhapur.  Thus, it is very clear that once an issue is already pending before a competent court i.e. Civil Court and unless the same is legally decided by following the due process of law till the highest Civil authority permitted, the Complainant cannot agitate the same issue before this Forum, as this Forum is to conduct only a summary proceedings and which will result in abuse of process of law.  The Opponents stated that they have made every exercise to comply all the legal formalities and made every endeavor to obtain Occupancy Certificate and have applied for the same to Kolhapur Municipal Corporation, however, it is still in process.

[9]        It is pertinent to note that as per the provisions of “The Maharashtra Ownership Acts (Regulation of the promotion of Construction, Sale, Management and Transfer) Act 1963”even if the developer fails to form the association of apartment, the flat owners of the apartment can themselves form the association of apartment owners by following the necessary procedure prescribed in the said Act.  The Opponents have not done any act which will be termed as deficiency in service and thus there is no question of any mental harassment to be caused to the Complainant. The complaint is time-barred. It is admitted fact that, Civil Appeal no.239/11 is already pending before the Hon’ble District Judge, Kolhapur and prayer in this complaint is already prayer in that appeal. Thus for this reason this Forum has no jurisdiction, to try and decide the prayer in the complaint. The Complainant has filed this complaint by hiding important material facts to mislead the Hon’ble Forum and which has caused mental harassment to the Opponent. For this reason compensation amounting Rs.2,00,000/- (Two Lakhs Only) be paid to the Opponents as well as Rs.10,000/- (Ten Thousand Only) towards on false and misleading facts. 

[10]      The following points arise for our consideration.

Our findings are as under:-

[11]      As to Issue No.1:- In para.10 of complaint, averment is made that cause of action is continuing in nature and in spite of legal obligations, Opponents failed to render services.  The Opponents in para.16 of say alleged that complaint is barred by limitation as per Section - 24 (A) of Consumer Protection Act.  The notice dated 12.05.2012 was issued with ulterior motive to bring the prayers in the complaint within limitation. 

[12]      We have carefully seen rival contention in the light of registered agreement for sale dated 24.02.1994 as well as the admitted position that possession of property has been given to Complainant on 24.12.1994. 

[13]      The “Maharashtra Ownership Flats Act, 1963” deals with obligations of Promoter.  As per agreement, Opponents have to perform contractual obligation mentioned in clause 14.  As per law, the continuing cause of action exists in the present case as Opponents in para.8 of say averred that they have made every endeavour to obtain occupancy certificate and still it is in process.  The Opponents further averred in para.9 that necessary application have been made to Kolhapur Municipal Corporation for obtaining Completion Certificate.

[14]      In view of this, there being a continuous cause of action, complaint is filed within limitation. Hence, we hold that complaint is not barred by limitation as provided under Section -24 (A) of Consumer Protection Act, 1986. Hence, we answer issue no.1 is the negative.

[15]      As to Issue No.2:- The complaint is filed u/s.12 of C.P.A. The Complainant admitted the pendency of Appeal No.239/2011 before District Court.  The Regular Civil Appeal No.239/2011 has been filed against the Judgement in R.C.S.No.669/1996 which pertains to common areas. The Complainant has filed pursis on 01.02.2016 and relinquished the prayers made in para.5 (a) without prejudice to other prayers.           

[16]      The reliefs prayed in the present complaint are different than the reliefs claimed and awarded in a pending litigation before District Judge.  The Complainant has already filed, pursis for deleting the prayer of common areas which is the subject matter of Civil Litigation.  As per law provisions of C.P.A. are in addition to the existing laws and they are to be applied harmoniously with Provisions of other legislation.  Under the Act, Consumers are provided with an alternative, efficacious and speedy remedy.  Hence, we hold that this Forum has jurisdiction to try the present complaint. Hence, we answer issue no.2 is the affirmative.

[17]      As to Issue No.3:-  We have observed while dealing with issue no.1 that Opponents have still to perform contractual obligation.  The Opponents in para. 2 submitted that the Complainant has made the Opponent no.2-Dr.Medha Shahapurkar as party to this complaint as a Power of Attorney Holder of original landowner late Shri.Sanjay Bhalchandra Nigundkar who is already expired and due to which the Power of Attorney has come to end.  Thus, at the first instance, this complaint deserves to be dismissed at the outset.  For that issue, this Forum perused document which are annexed along with this Complainant at sr.no.5 the copy of irrevocable power of attorney executed by the land owner i.e. Sanjay Bhalchandra Nigundkar in favour of Dr.Mrs.Shahapurkar and the case law filed by the Complainant as below:

        AIR 2003, GUJARAT, 294

       Bhagwanabhai Karamanbhai Bharvad,                  …Petitioner

        Versus

Arogyanagar Co-op. Housing Society Ltd. & ors. …Respondents   

Special Civil Application No.9291 with 10359 of 2002, D/-21-2-2003.

 (D)      Contract Act (9 of 1872), S.201, S.202-Irrevocable power of attorney  - Executed by all landowners for sale of land –Land-owners also parting with their power in favour of Power of Attorney Holder – Death of one of land-owner-No need for power of attorney holder to obtain consent from heirs and legal representative of deceased land-owner – Moreso, when there was no express contract for termination of agency. (Para 11, 18)

[18]      As per law laid down in the above case, it is not necessary for the Power of Attorney Holder of irrevocable power of attorney to obtain the consent from the Legal-heir of the deceased land-owner so we hold that for that reason complaint is not liable to be dismissed as alleged by the Opponents.

[19]      In para.11 the Opponents submit that the Complainant has changed the use of flat agreed to be purchased by him.  The Complainant used the said flat for residential purpose and not for any other purpose.  The Complainant has without consent of the developer –Opponents changed use of flats for hospital purpose. But the Complainant amended the complaint as per the order passed by this Forum on 08.01.2015. That the Complainant entered into registered agreement for sale with the Opponent no.1 dated, 24.10.1993 & 01.01.1994 for purchase of the aforesaid flat.  The agreement to sale provides following clause :- “The purchaser shall bear and pay increase in local taxes, water charges, insurance and such other levies, if any which are imposed by the concerned authority (i.e.K.M.C.) and/or Government and / or other public authority or allow of change of user of flat by the Purchaser.  The purchase shall alone be liable for any consequences arising out of any such change of user”.  The Complainant submitted affidavit and stated that after entering agreement to sale got the change of use of the said flat for his hospital purposes exclusively for the purpose of earning livelihood by means of self-employment.  The Complainant does not have any other hospital for his livelihood.  

[20]      In para.8 and 9 of say.  It is averred that occupancy certificate and completion certificate is still in process.  In para.10 of say, the Opponents specifically averred that as per law, if developer fails to form the Association of Apartment, the Flat owners can themselves form Association of Apartment. This submission of the Opponents clearly indicates their omission to perform their obligation without valid grounds. As the Opponents failed to perform the obligations as per agreement, to sale for more than two decades, we hold that the Opponents are guilty for deficiency in service.  Hence, we answer issue no.3 is the affirmative.

[21]      As to Issue No.4:-  The Opponents claimed compensation from Complainant to the amount of Rs.2,00,000/- (Two Lakhs Only) as well as costs of Rs.10,000/- (Ten Thousand Only) for mental harassment and for filing case on misleading facts. However, in view of the fact that Opponents are guilty for deficiency in service, we are unable to grant any compensation as claimed in prayer clause B and C of the say. Hence, we answer issue no.4 is the negative.

[22]        As to Issue No.5:- In para.9 of the complaint, and prayer clause-2 the compensation for mental agony is claimed to the amount of Rs.10,00,000/- (Ten lakhs Only). The Opponents averred that the applications have been made for obtaining requisite permission before Kolhapur Municipal Corporation.  There is unreasonable delay and Opponents instead of giving proper explanation for delay of more than two decades intend to avoid the responsibility by making averments in para.10, stating that Complainant can form association on failure of the Opponents.  This is an admission by the Opponents about their failure to perform contractual obligation.

[23]      The Complainant is entitled for compensation for mental agony.  The compensation is awarded for loss suffered by Complainant and not for punishing Opponents the Opponents.  The claim of Rs.10,00,000/- is  not just and proper.  The amount of compensation must be just and reasonable.  We award the compensation of Rs.25,000/- (Twenty-Five Thousand Only) towards mental agony, considering that the Opponents are still taking steps for obtaining completion certificate and breach is not wanton or reckless.               

[24]      In the result, we pass following order.

                                                                      ORDER

             (1)            The complaint is partly allowed.

          (2)              The Opponents are severally and jointly be directed to take effective steps to provide Complainant “Completion Certificate” of Flat no.S-3 admeasuring 91.10sq.mts. of built up area is situated on second floor along with terrace admeasuring 23.02sq.mts. adjoining this flat in a building known as “Sushrisha Sadan” constructed on C.T.S.No.1716, ‘E’ ward, Rajarampuri, Kolhapur from Kolhapur Municipal Corporation within a period of six weeks.

         (3)              The Opponents are further directed jointly and severally to take immediate steps for executing “Deed of Apartment” and “Association of Apartment Owners” of the aforesaid property in favour of the Complainant, immediately within two months, after obtaining Completion Certificate.

          (4)                 The Opponents are directed jointly and severally to pay Rs.25,000/- (Twenty-Five Thousand Only) compensation for mental agony to Complainant within one month, failing which the Opponents are liable to pay interest at @9% p.a. till realization of the amount.

           (5)                 The Opponents are jointly and severally directed to pay costs of this complaint Rs.2,000/- (Two Thousand Only) to Complainant.

             (6)                 Copies of this order to be served to both the parties, free of costs.