PER SHRI.ATUL D.ALSI, HON’BLE PRESIDENT The original complainant Sau Deepa Arvind Karmkarhas filed this execution application U/s 27 of the C.P.Act,1986 praying for contempt action against the accused/Opposite party for disobedience of compromise arrived at in the Lok Nayalay in CC No.20/14 on 12/04/2014. The terms of compromise are, “गैरअर्जदार हे अर्जदाराला नुकसान-भरपाई रु. ७०,०००/- देतील. अर्जदाराकडे रु.२,५०,०००/- बाकी आहेत, त्यामधून रु.७०,०००/- वजा जाता रु.१,८०,०००/- ताबा व विक्री करतेवेळी देणार तसेच त्याच्या व्यतिरीक्तसर्व्हीस टॅक्स, व्हॅट टॅक्स विक्रीच्या वेळी अर्जदार गैरअर्जदाराला देतील. संपूर्ण काम हे ६ आठवडयात गैरअर्जदार हे अर्जदाराला करुन देईल तसेच विक्री व ताबा पत्रक ६ आठवडयात देणार. अर्जदाराचे स्लॅब गळत असल्याने ते तात्काळ गैरअर्जदार दुरुस्त करुन देईल. जर पावसाने स्लॅब गळला तर गैरअर्जदार दुरुस्त करुन देईल. संपूर्ण साहित्य हे अर्जदार घेणार, परंतु गैरअर्जदाराने ठरवून दिलेल्या किमती पेक्षा जास्त घेतल्यास गैरअर्जदार तेवढी रक्कम कापून वरील खर्च अर्जदार स्वत: करेल. अर्जदाराची पिओपी स्लॅब गळतीमुळे खराब झाल्यास त्याची नुकसान-भरपाई गैरअर्जदार देणार. करीता सदर नुकसान भरपाई स्लॅबची गॅरंटी १ वर्ष पर्यंत राहील. बाहेरचे काम ६ महिन्यात गैरअर्जदार करेल“ 2.After admission of the execution case, summons were issued to the accused/opposite parties. Opposite parties appeared before this Commission and furnished bail. The particular of offense were framed and explained to the accused but the same were denied by all the accused. 3. The complainant examined herself by filing an affidavit in examination in chief at Exh.26 alleging that the NA/accused failed to comply the compromise arrived at in Lokadalat on 12/4/2014 and, therefore, they are liable for contempt of court. Hence the petition is filed. 4. The applicant/complainant is cross examined by counsel for accused/OP Adv.Kullarwar. It has come in evidnce that, “उर्वरीत सदनिकेचामोबदला रक्कम दिल्यानंतर सदनिकेची खरेदी करण्याचे ठरले आहे. सदनिकेचा ताबा देण्यांस विलंब झाल्यामुळे विरुध्द पक्ष बिल्डरने रु. ७०,०००/- नुकसान भरपाई म्हणून २,५०,०००/- मधून वजा करुन देण्याचे ठरले. मी १,८०,०००/- रु. विरुध्द पक्षास दिले नाही. मी १२ एप्रिल २०१४ पासून विरुध्द पक्षास बांधकाम अपूर्ण आहे या बददल लेखी तक्रार केली नाही. मी सदनिका घेते वेळी किंवा नंतर कधीही इलेक्ट्रीक कनेक्शनचे पैसे विरुध्द पक्ष बिल्डरलादिलेले नाही तसेच सर्व्हीस टॅक्स, व्हॅट, खरेदी नोंदणीशुल्क विरुध्द पक्षास दिले नाही. मी सदनिकेचा ताबा घेतल्या नंतर दुरुस्ती करुन घेतली हे म्हणणे खोटे आहे. मला विरुध्द पक्षाचे रु.१,८०,०००/- देणे नव्हते म्हणून मी खोटी केस केली.” 5.Non applicant/accused examined one witness Mr.AbhijitTannirkar at Exh.43. It has come in examination in chief that the “Flat bearing No.12 is purchased by wife of witness and after payment of balance amount and due charges, sale deed has been executed in her favour as per agreement executed in the year 2011 and there is no complaint against the builder” 6. This witness is cross examined by Adv.Dube for the applicant. It has come in cross examination that “his wife had entered into agreement to sale in January,2012 and after payment of full consideration and due charges, the sale deed has been duly executed by the accused/OP in her favour in January,2013. There are in all 12 apartments in the scheme. He is provided a separate electric meter after payment of due charges through accused/OP and in all 14 electric meters are installed in the scheme. I have no complaint whatsoever with regard to the apartment scheme.” 7. The learned counsel for the applicant/complainant Adv.Dube argued that the accused/OP has failed to comply the terms of compromise which is arrived at in LokAdalat dated 12/4/2014 therefore, the accused are liable for punishment. 8.The learned counsel for the OP/accused Adv. Kullarwar argued that the allegation of damage to the apartment due to leakage in slab and its alleged repairs carried out by the applicant/complainant is not proved by the complainant by filing expert evidence so also the alleged expenses on repairs have not been proved by the complainant by filing evidence to that effect. Hence it is evident that there is no leakage in the slab. The complainant failed to pay the balance amount of Rs.1,80,000/- alongwith registration charges, VAT as per terms of compromise arrived at in Lokadalat. The applicant/complainant admitted in cross examination that the complainant has never lodged any complaint before appropriate authority or to NA/accused in writing about leakage in slab or damage to the POP. The building is completed in all respects and sale-deeds are executed in favour of purchasers who have paid the balance amount and registration charges as per agreement. The complainant has never paid the charges for electric meter nor filed any application to the authority for obtaining electric meter. This fact is also admitted by the complainant in cross examination. The complainant herself is at fault and for non payment of balance amount, the complainant herself is responsible and liable for breach of terms of compromise. Hence the petition deserves to be dismissed. 9. After considering the evidence and arguments advanced by the learned counsel for both the sides, following points arose for our consideration.. ISSUE OBSERVATION - Whether there is willful disobedience of terms of No
Compromise dated 12/4/2014 arrived at in LokAdalat? - What order ? As per final order..
REASONING
10. The complainant has admitted in her cross examination that the complainant has never paid the balance amount which is payable as per agreement to sale to the OP Builder amounting to Rs.1,80,000/- along with charges of registration, VAT and other miscellaneous charges. The complainant has also admitted in cross examination that the complainant has not made any written complaint about leakage of slab or damage to POP since 2014. The complainant has admitted in cross examination that the complainant was required to pay Rs.2,50,000/- minus Rs.70,000/- towards late possession of flat and balance amount of Rs.1,80,000/- has not been paid to the OP builder. The complainant has not filed any report of expert chartered engineer of government with affidavit that there is a damage or leakage to the slab or POP and the cost of repairs likely to be required. The complainant has never obtained the consent to repair the leakage in slab and not shown any estimate and repairs of expenses spent on repairs to prove her contention that she has spent the total amount of Rs. 1,98,440/- towards repairs of slab etc. with certification report form expert Govt. Civil Engineers or Chartered Engineer and Valuer on affidavit hence mere allegation without the proof and facts can’t be accepted. All other apartments in the building including adjoining flats are well constructed and there is no complaint about quality of construction or Unfair Trade Practice on the part of OP/accused. All the purchasers are residing in the building since 2014 and the sale deed are executed in their favour after payment of balance amount as per agreement alongwith registration charges, VAT etc. The complainant has admitted in her cross examination that she has never requested for installation of electric meter to the appropriate authority through builder. Therefore, in view of her own admissions in the cross examination it is evident that the complainant herself has failed to comply the basic terms and conditions of compromise arrived at in Lokadalat. Hence there is no merit in the case, it deserves to be dismissed. Hence we proceed to pass the following order.. ORDER - The execution application No.36/2014 is dismissed.
- All accused are aquited.
- Copy of the order be furnished to the parties free of cost.
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