ORAL ORDER
Per – Hon’ble Mr. S. R. Khanzode, Presiding Judicial Member
This consumer complaint pertains to alleged deficiency in service on the part of the Builder/Developer for not handing over the flat agreed to be sold to the Complainant – Mr. Lokeshwar Singh Kshatriya (hereinafter referred to as ‘the Complainant’ for the sake of brevity) and in the alternative for compensation at the market price.
[2] Undisputed facts are that the Opponent No.1 – M/s. P. K. Constructions, a partnership firm of which the Opponent No.2 – Mr. Raj Panicker alias Baburaj Bhaskar Panikar and the Opponent No.3 – Mr. Rajendra Narayan Kakade were the partners was developing a housing complex known as Mahaveer Nagar. The Complainant agreed to purchase a flat bearing No.103, situated on the first floor in the Building No.3, admeasuring 680 sq. ft. for total consideration of `2,72,680/- from the Opponents/Builder (hereinafter referred to as ‘the Builder’ for the sake of brevity). The deal is witnessed by an agreement dated 26/7/1994. The Complainant has paid entire consideration of `2,72,680/- + `35,320/- towards maintenance charges etc. However, the possession though promised was not given for considerable length of time.
[3] It is alleged by the Complainant that he learnt that on or about month of April-2009 the Builder demolished the Building No.3 and thus, the possibility to get the flat vanished. Therefore, this consumer complaint is filed inter-alia claiming the relief of possession of the flat in the project known as ‘Mahaveer Nagar’ or any other project undertaken by the Builder and in the alternative claimed compensation of `23,80,000/- in lieu of the flat. Further, refund of `35,320/-, additional compensation of `5,00,000/- for mental agony and `30,000/- as costs are also claimed.
[4] Opponents Nos.1 and 2 filed a separate written version while the Opponent No.3 filed another written version. Sum and substance of their written versions is that the Opponent No.1 Firm was a partnership firm at will and it came to be dissolved on 19/1/1999. As per the Dissolution Deed, the Opponent No.2 – Mr. Raj Panicker alia Baburaj Bhaskar Panikar had taken the entire responsibility of dues and liabilities arising out of construction of the scheme known as ‘Mahaveer Nagar’ and discharged the Opponent No.3 – Mr. Rajendra Narayan Kakade. Therefore, the Opponent No.3 claimed discharge from the liability. As far as Opponents Nos.1 and 2 are concerned, in fact, it is the Opponent No.2 only since the Opponent No.1 Firm cam to be dissolved and after the building was demolished and handing over the project to another builder showed their willingness to make available another flat in the property developed by the builder to whom the rights were assigned and, therefore, the complaint is premature. It is also submitted that dissolution of the firm and development thereof was made known to the Complainant and he was fully aware of these facts and as such, present complaint is misconceived.
[5] Heard Adv. S. S. Sayed instructed by Adv. C. S. Patil on behalf of the Complainant and Adv. Smt. Rupali Desai on behalf of the Opponents. Perused the record.
[6] We find that by the admission itself that the Building No.3 in which flat bearing No.103 agreed to be purchased by the Complainant as per agreement dated 26/7/1994 was demolished, the subject matter since not in existence, it is not possible to hand-over the possession of the said flat to the Complainant. Though the Opponent No.2 – Mr. Raj Panicker alia Baburaj Bhaskar Panikar submitted that he showed his willingness to make available another flat to the Complainant, there is no agreement to that effect. New builder to whom the Opponent/Builder had assigned the rights or sold the project is not a party before us. Under the circumstances, the deficiency in service on the part of the Builder to not to handover the flat agreed upon is well-established. However, since it is not now possible to direct to handover the possession of the flat by way of removal of deficiency, we find it proper and just to consider the alternate relief prayed by the Complainant to compensate him at the market rate of `23,80,000/-. The Complainant himself at the time of filing of the complaint, in paragraph (36), stated that current market value of the flat is of `23,80,000/- and this particular statement is not specifically denied by the Opponents/Builder and, therefore, we find it safe to accept such statement as the current market value of the flat to assess the quantum of compensation.
[7] We find that hardly there is any evidence led on behalf of the Complainant to substantiate his other monetary claims for compensation and costs. Since the compensation equivalent to alleged market price of flat assessed at `23,80,000/- against the parted amount of `2,72,680/- as agreed consideration and `35,320/- as advance maintenance, being granted, we find that the Complainant is suitably compensated and no further/separate compensation need to be awarded to the Complainant on any other count including hefty costs claimed.
[8] Though the Opponent No.3 claimed that as per dissolution of partnership deed, he is no more liable for any claim made by the Complainant, we find that that is an inter-se arrangement between the partners of erstwhile Opponent No.1 firm and it is not binding upon the Complainant. Hence, we hold both the partners of erstwhile Opponent No.1 Firm liable to pay the compensation to the Complainant.
For the reasons stated above, we hold accordingly and pass the following order:-
ORDER
Complaint is partly allowed.
Opponents Nos.2 and 3 are jointly and severally directed to pay to the Complainant an amount of `23,80,000/- together with interest thereon @ 9% p.a. as from the date of filing of the complaint viz. 09th February, 2010 till its realization.
Opponents to bear their own costs and the Opponents Nos.2 and 3 shall pay costs of `25,000/- to the Complainant.
Pronounced and dictated on 02nd August, 2013
