For Complainant : Advocate Ambad
For Opponent : Advocate Gandhi
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Per : MEMBER, Smt. Sujata Patankar
//JUDGMENT//
[1] The facts giving rise to the complaint briefly stated are as follows :-
It is the case of the Complainant that the Complainant is earning her bread and butter through salary, as an employee in the private section. The Opposite Party No.1 is promoter and builder by profession and is engaged in development and construction of property. The Opposite Party No. 1 had floated housing construction scheme at City Survey No.1958, situated at Lohgaon, Tal. Haveli, Dist. Pune. The registered agreement was executed on 5/2/2007 in between the Complainant and the Opponent No.1 for flat No. 08, Classic Plaza, C Wing, adm. about 595 sq.ft, first floor. For the consideration of such flat is agreed of Rs. 7,14,000/- and the Complainant has paid Rs.7,00,000/- to the Opponent as per schedule. The payment schedule is as under :-
Rs.50,000/- |
Dated 14/12/2006 |
Rs.50,000/- |
Dated 20/01/2007 |
Rs.50,000/- |
Dated 29/01/2007 |
Rs.2,00,000/- |
Dated 23/06/2007 |
Rs.1,00,000/- |
Dated 21/08/2007 |
Rs.1,50,000/- |
Dated 14/07/2009 |
Rs.7,00,000/- |
Total paid amount |
[2] The Complainant paid above-mentioned amount but till yet the Opponent failed to complete the construction as per the agreed hence the Opponent failed to give the possession to the Complainant as per the agreed term hence the Complainant caused mental harassment. It is further stated that the Complainant is residing on rent and the amount of rent is Rs.6,000/- per month. The Complainant is also paying the interest on the disburse amount. It is also further contended that the Complainant noticed various defects in the construction work carried out by the Opposite Party. They are as follows :-
a) Till today the Opposite Party did not give the drinking water connection to the Complainant inside the flat, the drinking water is provided from the tanker and till such date all the flat holders are paying the expenses of the tanker.
b) Till yet also the Opponent did not take the completion certificate from the competent authority.
c) Till today there is no main gate wall compound and security available.
d) No boring is done in the building.
e) Mosquito net not given in kitchen window
f) Main door to be changed because it I very cheap quality
g) Drainage system is not working
h) Loose electrical switch fitting in bathroom and hall. And the switches and electrical wiring done by the Opponent is not of the standard quality.
i) Painting not done in terrace pipes and window grills and in the loby
j) Tap fitting aren’t given in bathroom
k) Kitchen wash basin, drainage fittings are not given.
Till yet the Complainant did not execute the conveyance deed and also did not form the society as the Opponent No.1 had taken the society formation charges from the Complainant.
[3] Thus the Opponent did not complete his work of the construction and other amenities. But always through phone pressurized Complainant to take the possession in such situation. The Opponent sent the notice and demanded Rs.94,000/- which is not included in the agreement. As per the agreement, the due on behalf of the Complainant is of Rs.14,000/-. Thus the Opponent trying to extract the extra amount from the Complainant. Thus because of the Opponent’s deficiency in service, the Complainant causes too much mental harassment and inconvenience. It is the duty of the Opponent to complete the construction within the stipulated period but the Opponent failed to complete the construction and to give the possession to the Complainant. Hence the Complainant filed the application. Hence the Complainant prays as under :-
a) It may be declared that there is deficiency in service on the part of the Opposite Party.
b) The Opposite Party may be directed to remove the defects in the construction work as pointed out in para No. 2(a) to (k) in the complaint and handover the possession of the said flat No. 8 by accepting remaining consideration amount of Rs.14,000/- as per agreement and execute and registered Deed Of Apartment in respect of the said flat in favour of the Complainant.
c) The Opposite Party may be directed to submit the property either to the provisions of the Maharashtra Apartment Ownership Act, 1970, be executing and registering the requisite declaration, as provided in the said act and to convey the title etc..
d) The Opposite Party may be directed to pay to the Complainant an amount of Rs.5,25,000/- on account of compensation towards physical and mental harassment.
The Opposite Party may be directed to pay costs of Rs.5,000/- to the Complainant.
The complaint application itself is supported with the affidavit of the Complainant. Alongwith the complaint application, the Complainant has filed relevant documents, such as receipts, agreement to sale dtd.5/2/2007, legal notice dtd.17/1/2009, 2/2/2009 in support of her contentions.
[4] In pursuance of the notice of appearance issued by this Forum, the Opponent appeared and filed its written statement and has denied the complaint. It is further contended that the agreement executed in favour of the Complainant has been duly terminated by the Opponent for the default on the payment of price/consideration and hence the Complainant has no right and authority nor there is any cause of action to file present complaint. The Complainant is habitual defaulter, in complying the terms of the agreement and has breached the terms thereof. The Opponent has even failed to pay the self contribution (i.e. difference between the price and the loan amount) which was to be paid initially. It is further contended that the Complainant has been misusing the receipt issued by the Opponent towards the costs of registration, stamp duty etc. of the agreement which is not part of the consideration/price. At the time of purchase, the Complainant raised the housing loan from Axis Bank. Amount of Rs.94,000/- over and above the loan amount remained due from the Complainant. The Complainant issued a cheque for the said due amount of Rs.93,525/- bearing Cheque No. 210712 drawn upon Canara Bank. However the said cheque when presented was dishonoured. On 17/1/2009, an amount of Rs.2,44,000/- was due from the Complainant. The Opponent by notice through Advocate dtd.17/1/2009 called upon the Complainant to pay the outstanding of Rs.2,44,000/-. Upon receipt of said notice the Complainant paid amount of Rs.1,50,000/- while the Complainant assured to pay the balance within a short time. The Complainant had also undertaken to pay the charges towards the stamp duty, registration which he Complainant has not paid till date. According to the Opponent, Rs.94,000/- towards the balance consideration, Rs.33,840/- interest @18% on the amount due, Rs.3,000/- towards costs of the notices sent to the Complainant, total amount of Rs.1,30,840/- are due from the Complainant to the Opponent. The Complainant is also liable to pay the interest on said amount from the due date till actual realization @18% for the period of delay. However inspite of repeated requests the Complainant failed to pay the balance outstanding inspite of repeated requests of the Opponent. Hence finally by a notice dated 5/1/2010 through Advocate the Opponent called upon the Complainant to pay the balance outstanding within 15 days of receipt of the said notice and also conveyed in the event of non compliance of the notice the agreement shall stand terminated on 16th day. The Complainant inspite of the receipt of notice failed to pay the outstanding. Hence the agreement in favour of the Complainant stands duly terminated and revoked and hence the Complainant has no right and authority to ask for compliance of the agreement or the incidental facility etc.. As per the contentions of the Complainant, it is clear that the Complainant is not interested to have the flat. This Opponent is ready to refund the amount received from the Complainant according to the terms of the agreement. According to the Opponent as per the allegations of the so called payment of the rent of the Complainant, due to default of the Complainant. Without prejudice it is stated that the Opponent has provided the Grampanchayat water connection, a borewell, underground water tank each having capacity of 40000 liter each and three overhead water tanks having capacity of 15,000 each, since the plans are sanctioned by Town Planning Development Authority and Collector, Pune, no issue of grant of completion occupancy certificate thus arise, the Opponent has provided compound wall and main gate to the scheme, two borewells are provided and having ample water availiability, mosquito nets are provided to windows of kitchen and hall of all flats, decorative quality wood and formica main doors are provided, drainage system is provided and is working effectively, electrical wiring of ISI standard is provided by this Opponent, entire building inernally and externally painted with terrace pipes, window grill lobby etc., tab fitting in bathroom is ready, kitchen sink, drainage fittings are provided, by a registered deed of declaration dtd.8/4/2010 registered in the office of Sub Registrar, Haveli 19 at Sr.No. 3143/2010, the Opponent has submitted the scheme to the provisions of the Maharashtra Apartment Ownership Act, 1970 as well as the Opponent has also executed and registered six Apartment Deeds in favour of individual unit purchasers. Thus all the allegations by the Complainant regarding so called deficiencies are false and frivolous and the complaint itself is vexatious. This Opponent never threatened nor pressurized the Complainant to take the possession. However since the Complainant wished to obtain the possession without paying the balance outstanding kept on threatening this Opponent of legal action. However time and again, this Opponent conveyed that this Opponent will hand over the possession only if the Complainant pays the outstanding within the stipulated time. Since the Complainant to pay the consideration as stipulated by agreement, the said agreement in favour of the Complainant has been duly terminated, revoked and cancelled. Hon’ble Forum may be pleased to direct the Complainant to receive the refund and to return the original of the agreement. That the so called demand of Rs.5,25,000/- is baseless and false. That the reliefs sought for by the Complainant are frivolous, redundant and untenable. Hence the complaint may be dismissed with costs. The written statement is supported with the affidavit. The Opponent also filed list of documents, such as, bounced cheque and its receipt of Bank Of Maharashtra, notice dtd. 5/01/2010 by the Opponent to the Complainant by UPC & RPAD, notice dtd. 17/1/2009 by the Opponent to the Complainant by UPC.
[5] On 13/5/2010, the Complainant filed application for appointment of Court Commissioner alongwith affidavit. The Opponent filed their say on the application of Court Commissioner on 15/7/2010. The Hon’ble Forum allowed the application by order dtd.23/9/2010. As per the order the Hon.ble Forum, the Court Commissioner filed his report on 18/10/2010 with photographs.
[6] On 1/12/2010, the Complainant filed another application for seeking order against the Opponent for not to create interest by transferring in the name of the third party till the final judgment of the said complaint. The Hon’ble Forum passed the order. The Opponent is directed not to create any third party interest or to alienate the flat No.8, the subject matter of this complaint till decision of this application. On 11/2/2011, the Complainant filed notice dtd.7/2/2011, by the Opponent to the Complainant and Bisan Construction quotation for civil work and for fabrication work and waterproofing, cheque by the Opponent to the Complainant. Subsequently, the Opponent filed notorized Memorandum of Understanding dtd.19/4/2010 and agreement to sale dtd.10/12/2010.
[7] On 8/4/2011, the Complainant again filed interim application prayed that the Opponent may kindly be directed not to execute final conveyance i.e. deed of apartment of the said disputed flat in favour of the said third party i.e. Mrs. Prachi Mane and the Opponent may kindly be directed not to give possession of the said disputed flat to the third party, and the possession of the disputed flat may kindly be given to the Complainant. The Hon’ble Forum passed the order that other side to say and very date, the Opponent not filed their say but sought the time. Hence the Hon’ble Forum passed the order on very day, which is as follows :-
तक्रारदारांचा प्रतिज्ञापत्रासह अर्ज वाचला. तक्रारदारांचे वकील व जाबदारांचे वकील यांचा युक्तिवाद ऐकला, वादग्रस्त सदनिका बिल्डरने ज्यांना विकली आहे, त्यांनी अद्दाप काही रक्कम बिल्डरला देणे बाकी आहे. सबब जाबदारांचे या अर्जावर म्हणणे येईपर्यंत व या अर्जावर आदेश पारीत होईपर्यंत बिल्डरने सदनिकेचा ताबा अन्य व्यत्किस देऊ नये असे त्यांना निर्देश देण्यात येत आहेत.
[8] Thereafter the Opponent filed say to the interim application on 2/5/2011 with affidavit and filed documents, the copy of special civil suit No. 280/11 dtd. 8/2/2011, possession letter dtd.30/8/2010 by the Opponent to Miss. Prachi Mane.
[9] On 30/6/2011, the Complainant filed at exh. 59 amendment application with affidavit seeking amendment as follows :-
“ And handover the possession of the said flat no. 8 by accepting remaining consideration amount of Rs.14,000/- as per agreement and execute and registered Deed Of Apartment in respect of said flat in favour of the Complainant”.
[10] On very day, the Opponent sought the time for filing say. Therefore, the Hon’ble Forum allowed the application of the Complainant as prayed. On 3/6/2011, the Complainant filed evidence affidavit. As also file list of documents comprising 12 documents, brochure given by the Opponent to the Complainant, copy of NOC issued by the Opponent to the UTI Bank dtd.20/5/2007, the copies of demand letters issued by the Opponent to the Complainant dtd.20/5/2007, 24/7/2007, 5/7/2009, email sent by the Bank employee to the Complainant dtd. 2/3/2009, receipt bearing No. 091 issued by the Opponent to Mr. Sudama Singh, the letter sent by the Complainant to the Opponent dtd.17/2/2011, the letter dtd.7/4/2011 issued by Axis Bank to the Opponent, notice given by MSEDCL to the Opponent with bill, copy of the judgment dtd.26/2/2010, receipt given by Court Commissioner for amount of Rs.5,000/-. On 16/8/2011, the Complainant again filed list of documents such as, photocopy of FIR filed against the Opponent, the Complainant’s statement dtd.25/7/2011, complaint against Opponent given by the Complainant to Commissioner of Police, Pune City, Pune, complaint against the Opponent given by the Complainant to the DCP, Zonal Area IV, Yerawada, Pune. Complaint against the Opponent given by the Complainant to Senior Inspector, Vimantal Police Station, Nagar Road, Pune, news paper cutting etc. The Complainant filed amended plaint supported with affidavit on 16/8/2011. On 16/8/2011, the Opponent filed purshis stating therein that the Complainant has not carried out the amendment within 14 days hence the prayer about the amendment by the Complainant is not binding upon the Opponent. Therefore, the Complainant filed application with affidavit on 30/8/2011 with prayer that the delay of 13 days for carrying out the amendment may kindly be condoned and amended complaint may kindly be taken on record and may read in evidence. The Opponent filed say to this application with affidavit. The Hon’ble Forum passed order on exh.68 and the application of the Complainant is allowed. On 27/12/2011, the Opponent filed application for production of documents which is allowed with costs.
[11] The Complainant has filed written notes of arguments. The Opponent has also filed written notes of arguments with case laws. As also both the parties have advanced oral submissions before the Forum. We have gone through the entire proceedings, pleadings, evidence, arguments produced on the record in the complaint proceedings.
[12] On perusal of the entire proceedings, the following points arouse for our consideration.
Points Answers
1. Whether the Opponent rendered
deficiency in service to the Complainant? … Yes.
2. What order ? … As per final order.
REASONS :-
[13] The Complainant filed agreement to sale dtd. 5/2/2007 alongwith complaint application. As also filed some money receipts paid to the Opponent as a consideration of flat No.8. This fact is not denied by the Opponent in their written say and affidavit. Hence it is undisputed fact that the Complainant is a “consumer” of the Opponent.
[14] Point No.1 :- The Complainant came with the case that the Opponent did not hand over the possession of the flat No.8 as per agreement, the Opponent has not provided separate electricity meter to the Complainant and the Opponent may be directed to submit the property either to the provisions of Maharashtra Apartment Ownership Act by executing and registering the requisite declaration as provided in the said Act and to convey the title etc.. As also the Complainant is seeking the relief that the Opponent may be directed to pay to the Complainant an amount of Rs.5,25,000/- on account of compensation towards physical and mental harassment. On perusal of the complaint application and documents filed by the Complainant, it reveals that the Complainant paid the consideration to the Opponent on various dates i.e. dtd.20/1/2007 of Rs.50,000/-, dtd.14/12/2006 of Rs.50,000/-, dtd.20/1/2007 of Rs.50,000/-, dtd.23/6/2007 of Rs.2,00,000/-, dtd.23/6/2007 of Rs.1,00,000/-, dtd.21/8/2007 of Rs.1,00,000/-, dtd.14/7/2009 of Rs.1,50,000/-. As per these receipts, it is evident that the Complainant paid the amount of Rs.7,00,000/- as a consideration to the Opponent as per agreement for sale dtd.5/2/2007 executed between the Complainant and the Opponent. As per Agreement Schedule III, it is obligatory on the part of the Opponent to provide amenities to the Complainant. The Complainant filed notice dtd.17/1/2009 sent by the Opponent to the Complainant stating that from receiving this notice within 15 days the Complainant have to pay Rs.2,44,000/- and interest for delay to the Opponent otherwise the agreement executed between the Complainant and the Opponent dtd.5/2/2007 be cancelled. On 6/7/2009, the Opponent sent letter to the Complainant in which it is stated “we are pleased to inform you that the work pertaining to your flat is in progress and consequently last installment of Rs.1,50,000/- payable thereagainst has became due, you are requested to remit the payment within seven days from receipt of this letter failing which, interest as per agreement (without prejudice to our other rights and remedies) shall become thereon”. Thereafter the Complainant and other flat owners in the Classic Plaza sent letter to the Collector, Pune for incompletion of work by the builder/Opponent dtd.18/6/2009. On 2/2/2009, the Complainant sent reply notice through Advocate Ashok Palande to Advocate Unmesh Deshpande for the Opponent stating therein that the Complainant paid total consideration of Rs.5,50,000/- and remaining amount of Rs.2,40,000/- will be ready to pay. Therefore the Complainant has not committed breach of the terms of the agreement and also the Complainant always willing and ready to pay remaining consideration. the Opponent have no any right to cancel the agreement. On 3/6/2011, the Complainant filed some other documents after perusal of these documents, the brochure published by the Opponent shows that the 24 hours water supply, generator back up, intercom system will be provided by the Opponent to the flat purchaser in the scheme known as “Classic Plaza”. On 20/5/2007, the Opponent sent letter to the U.T.I. Bank for permission to mortgage flat No.8. On 20/5/2007 the Opponent sent letter to the Complainant for payment of Rs.2,00,000/- whichever has become due will be paid within seven days of receipt of this letter otherwise the Complainant shall be liable to pay interest as per agreement. Thereafter same letter sent by the Opponent to the Complainant for payment of Rs.1,00,000/-. On 24/7/2007, the Opponent sent letter to the Complainant for amount of Rs.1,35,000/-. On 5/7/2009, the Opponent sent letter to the Complainant for an amount of Rs.1,50,000/-. On 2/3/2009, email sent by Axis Bank to the Complainant with a subject of disbursement of loan. On 17/2/2011, the Complainant sent letter to the Opponent with reference to letter dtd.7/2/2011 sent by the Opponent with subject registered agreement dated 5/2/2007 cannot be terminated stating “I am returning your cheque of amount of Rs.1,24,000/- bearing cheque No.767944 dtd.3/2/2011 Bank Of Maharashtra Vishrantwadi Branch and total consideration of amount of Rs.7,14,000/-, the Complainant already paid the amount of Rs.7,00,000/- as per agreement to the Opponent and only the remaining amount of Rs.14,000/- also willing to pay”. With this letter the Complainant sent a cheque of Rs.1,24,000/- to the Opponent. On 7/4/2011, the Axis Bank sent letter to the Opponent regarding demand draft No. 767945 dtd.3/2/2011 bearing amount of Rs.5,50,000/- for loan account of Nitu Sudama Singh. After perusal of this letter, as per the contentions therein “we are in receipt of above referred demand draft from you. The Bank has deposited the said in its suspense account without prejudice to their right and interest pertaining to the flat mortgaged to us. We have further noticed from your letter that you have sold the flat No. C-8, Classic Plaza, Wadgaon Shinde Road, Lohgaon, Pune – 411 047. That was purchased by Nitu Sudama Singh from you vide registered agreement for sale dtd.5/2/2007 to some third party without taking no objection from Axis Bank which is mandatory as the Borrower had mortgaged the said flat in favour of Axis Bank (formerly known as UTI Bank Ltd.) for which you have issued your NOC dtd.20/5/2007. Please note that as per the NOC dtd.20/5/2007 issued by you in Axis Bank’s favour, you have specifically taken note of Axis Bank’s charge on the said flat and also agreed that you shall ensure that the borrower does not sell the said flat to any other person without the NOC of the Axis Bank. However how you yourself have sold the said flat to a third party without obtaining prior permission from Axis Bank. By doing so you have violated the terms as agreed by you while your NOC dtd.20/5/2007, You may also note that the demand draft received from you has been deposited in suspense account and no effect has been given in the loan account of the customer. As the outstanding amount of loan account has not been received from the Borrower. Further considering the fact that you have sold the mortgaged flat to the third party without having obtained Axis Bank’s prior permission we hereby call upon you to cancel the agreement for sale of the said flat executed between you and third party within 20 days from the receipt of letter by you failing which we shall be constrained to take appropriate legal action against you. The notice sent by MSEDCL alongwith the electricity bill to the Opponent for the non receiving amount of electricity bill and therefore the MSEDCL will be disconnect the connection is produced on the record. On 16/8/2011, with amended complaint application, the Complainant has filed documents comprising FIR, statement of Complainant dtd.21/7/2011, letter dtd.31/5/2011 by the Complainant to the Commissioner Of Police Pune City, the letter dtd. 13/5/2011 to the DCP Zonal Area IV Erandawana, Pune, letter dtd. 7/4/2011 to the Senior Inspector, Vimantal Police Station, Nagar Road, Ramwadi, Pune.
[15] The Complainant filed application for appointment of Court Commissioner on 13/5/2010, to which the Opponent filed their say on 15/7/2010 and Hon’ble Forum passed order on 23/9/2010 and granted the application of the Complainant. As per the order of the Hon’ble Forum, Mr. Jaydeep Yargop submitted his inspection report on 18/10/2010 with photographs.After perusal of the Commissioner’s report, (i) The backside (east) of the building did not have compound wall (ii) The second borewell was located inside the transformer room, this was extremely hazardous to the occupants of the building but the boring was not in working condition. (iii) There was a leakage from one of the overhead water tank. (iv) The building had leakages at various places. (v) The parapet wall of the terrace was 2’ in height. This was extremely unsafe to the occupants of the building. (vi) Mosquito net was not provided to the kitchen window, (vi)One of the sockets inside the bathroom was not fitted properly. (vii) The fixing of the faucets inside the bathroom was incomplete, (viii) the kitchen top was not in granite but was made of green marble (ix) the drinking water connection was provided inside the flat but it was not in working condition. The wash basin inside the flat was not fixed properly.
[16] After perusal of the documents filed by the Complainant and its contents show that there is agreement executed between Complainant and Opponent for the total consideration of amount of Rs.7,14,000/- and the Complainant as per the demand letter sent by Opponent had given the installment through her loan account of Axis Bank. As per the agreement to sale executed on 5/2/2007, it is mandatory on the Opponent whenever the Opponent delivered possession to the flat purchaser at that time, the Opponent must have possessed the occupation certificate and the Completion Certificate of this building. But in this case, it is not on record that the Opponent was having Occupation Certificate and Completion Certificate before delivering the possession of the flat to the flat purchaser. We are relying on the appeal order dtd . 03/05/2010 in First Appeal No. 53/2010 passed by the Consumer Disputes Redressal Commission, Maharashtra State, Mumbai in the matter of Mr. Vijay Pundalik Gangurde V/s. Sankalp Constructions. After going through the aforesaid judgment, the Hon’ble State Commission had come to the conlusions, more specifically mentioned as follows :-
“The facts till 20/02/2007as enumerated above are admitted. It appears that dispute started between the parties on the said date when the respondent demanded remaining amount of Rs.1,35,000/- and the Complainant submitted that there are deficiencies and intimated those deficiencies in writing to the respondent and till then there was no dispute between the parties. Even the payment which was made through bank was accepted by the respondents. Therefore, basically respondents are supposed to get occupation certificate so as to give delivery of possession of the flat by 20/02/2007 or thereafter. Therefore we wanted to know from the respondent whether on 20/02/2007 when he orally demanded balance amount from appellant so as to deliver possession of flat to appellant, as to whether the respondent is possessed of occupation certificate and completion certificate or not. This information is not coming forward. It is well settled position that flats cannot be occupied unless local authorities give occupation certificate. However, in number of cases coming before State Commission, we have noted that number of builders in the State Of Maharashtra have handed over the possession of the flat without getting Occupation Certificate and Completion Certificate. This they do only in order to get extra F.S.I. which is likely to be availed by future modification of rules and regulations of local authorities. The purchaser cannot be put into possession of the property and property cannot be said to be ready for delivery of possession unless the occupation certificate is obtained. These are the provisions of MOFA but these are usually ignored by the builders as we have observed in number of cases coming before us. Let the fact as it is. Since such information is not coming forward we can safely conclude that the respondents had not obtained occupation certificate and completion certificate so as to deliver the possession of the flat. This is important for our purposes because unless respondents possessed of occupation certificate, respondents cannot demand the remaining amount from the Complainant/Appellant”.
[17] As per the conclusion of the Hon’ble State Commission, in the present case also the Opponent is bound to compel the provision regarding Occupation Certificate and Completion Certificate. In this case the Opponent came with the case of cancellation of agreement, however after perusal of the agreement to sale and receipts produced on the record which shows that as per the agreement, out of total consideration of Rs.7,14,000/-, the Complainant paid the amount of Rs.7,00,000/- to the Opponent. The last installment paid by the Complainant to the Opponent on 14/7/2009. There is no any documentary evidence on the record to show that the Opponent was having Occupation Certificate and Completion Certificate with him at the time of termination of notice sent by him to the Complainant. Therefore, we came to the conclusion that the ratio putforth by the Hon’ble State Commission is applicable to the present case. Mere sending notice to the flat purchaser by the builder would not be treated as termination of the agreement.
[18] In this case also as per the agreement filed by the Complainant it shows that total consideration is Rs.7,14,000/-. Out of which the Complainant paid the amount of Rs.7,00,000/- to the Opponent as per agreement. After perusal of the documents filed by the Complainant, the Complainant paid the amount of Rs.1,50,000/- to the Opponent on 14/7/2009. On 7/2/2011, the Opponent sent a letter to the Complainant for the termination of the agreement. Subsequently thereafter the Complainant sent a letter/notice on 17/2/2011with returning of the cheque amounting to Rs.1,24,000/- to the Opponent, it means that during the pendency of the matter before this Hon’ble Forum, the Opponent sent letter / notice to the Complainant and also cheque for cancellation of agreement. After perusal of the letter dtd.7/4/2011 sent by the Axis Bank to the Opponent, by which it is crystal clear that the Opponent sumotto sent the DD of amount of Rs.5,50,000/- to the Axis Bank. This amount deposited in suspense account of the Bank. The Bank intimated to the Opponent that without permission the mortgaged flat sold by Opponent is illegal and therefore, within 20 days, the agreement be cancelled by the Opponent with third party. It means that the Opponent executed the agreement of mortgaged property with third party without consent of the Bank, amounts to illegal act on the part of the Opponent.
[19] The Complainant has filed stay application on 1/12/2010. At that time the Opponent sought adjournment to file say to this application. Hence the Hon’ble Forum passed the order that the Opponent is directed not to create any third party inertest or to alienate the flat No. 8, the subject matter of this complaint till decision of this application On 8/4/2011, the Complainant filed another interim application for seeking relief that the Opponent may kindly be directed not to execute final conveyance i.e. Deed of Apartment of the said disputed flat in favour of third party i.e. Prachi Mane and the Opponent may kindly be directed not to give possession of the said disputed flat to the third party, the possession of the said disputed flat may kindly be given to the Complainant. The Opponent sought the adjournment for filing their say. On very day, the Hon’ble Forum passed the order on the interim application
तक्रारदारांचा प्रतिज्ञापत्रासह अर्ज वाचला. तक्रारदारांचे वकील व जाबदारांचे वकील यांचा युक्तिवाद ऐकला, वादग्रस्त सदनिका बिल्डरने ज्यांना विकली आहे, त्यांनी अद्दाप काही रक्कम बिल्डरला देणे बाकी आहे. सबब जाबदारांचे या अर्जावर म्हणणे येईपर्यंत व या अर्जावर आदेश पारीत होईपर्यंत बिल्डरने सदनिकेचा ताबा अन्य व्यत्किस देऊ नये असे त्यांना निर्देश देण्यात येत आहेत.
This order is noted by Advocate for the Complainant and the Opponent. The Opponent filed their say on 2/5/2011 with documents i.e. the copy of Special Civil Suit No. 280/11 on 8/2/2011 between S.K. Builders V/s. Ms. Nitu Singh and Axis Bank for declaration, cancellation of agreement and injunction and possession letter dtd.30/8/2010. After perusal of these documents, the Opponent himself admitted that there is no any termination of agreement between the Complainant and the Opponent and therefore, the Opponent himself has filed the civil suit for declaration, cancellation of agreement. After perusal of the possession letter dtd.30/8/2010, it shows that the Opponent had issued possession letter on 30/8/2010 to Prachi Mane. In this regard the Opponent filed documents i.e. Memorandum Of Understanding dtd.19/4/2010 and the agreement to sale executed between the Opponent and third party i.e. Prachi Mane dtd. 10/12/2010. After perusal of these documents, the Memorandum Of Understanding dtd.19/4/2010 and the Agreement to Sale executed between the Opponent and Prachi Mane on 10/12/2010 and the possession letter given by the Opponent to the third party on 30/8/2010 shows that firstly the Opponents issued the possession letter to the third party and thereafter, the Opponent executed the agreement with third party. All these documents brought on record by the Opponent themselves only show that there are fraudulent and false documents fabricated by the opponent with regard to the disputed flat. The Opponent executed agreement to sale dtd.10/12/2010 after the order passed by the Hon’ble Forum on interim application dtd. 1/12/2010, which shows the wrongful conduct on the part of the Opponent. In the normal procedure, the Builder at first instance executed and registered the agreement to sale with the flat purchaser, then after receiving entire consideration, issue possession letter to the flat purchaser. But in this case, the Opponent himself by their documentary evidence shows that the Opponent issued possession letter on 30/8/2010 and executed agreement to sale on 10/12/2010, which is not permissible by law i.e. illegal one or not considerable in the eyes of law. As also the inspite of Hon’ble Forum’s order, not to create third party interest is in existence the Opponent created the third party interest. It shows the Opponent disobeyed the order of the Hon’ble Forum.
[20] The Opponent filed their say on 26/4/2010 in their say there is no any contention made by the Opponent about the payment of amount of Rs.5,50,000/- and amount of Rs.1,24,000/-. The Opponent filed with the say cheque return memo. The details in the cheque dtd. 1/3/2008 is mentioned as the amount of Rs.93525/- Bank Of Canara issued to the S.K. Builders. As against this the Complainant filed on 30/6/2011 with list of documents receipt given by the Opponent to Sudama Singh for amount of Rs. 93,525/-. On perusal of the cheque and cheque return memo this cheque is not issued by the Complainant but by the father of the Complainant. The Complainant has borrowed the loan of Axis Bank and also paid the amount of installment through the Axis Bank to the Opponent. The Opponent filed notice dtd.17/1/2009 which is sent by the Opponent to the Complainant. After perusal of the notice, stated as सध्या सी विंगमधील फलॅट क्र. 8 चे बांधकाम पूर्ण झालेले असून तुमचेकडून आमचे अशीलांना रक्कम रु. 2,44,000/- एवढी रक्कम येणे आहे व त्यावरील विलंब कालावधीकरिताचे व्याज आमचे कार्यालयात घेऊन यावे व त्याची रितसर पावती घेऊन आपला करारनामा नियमित करुन घ्यावा. The Opponent filed notice dtd.5/1/2010 stated as सध्या सी विंगमधील फलॅट क्र. 8 चे बांधकाम पूर्ण झालेले असून तुमचेकडून आमचे अशीलांना रक्कम रु. 94,000/- एवढी रक्कम व त्यावरील करारातील शर्थीनुसार ठरलेले विलंब कालावधीकरिताचे व्याज येणेबाकी आहे तरी सदर नोटीस मिळालेपासून १५ दिवसांचे आत देय रक्कम रु.94,000/- व त्यावरील विलंब कालावधीकरिताचे व्याज आमचे अशीलांचे कार्यालयात घेऊन यावे व त्याची रितसर पावती घेऊन आपला करारानामा नियमित करुन घ्यावा. After perusal of these documents, it shows that the Opponent time and again called to the Complainant for due amount about the cancellation of agreement. On 15/3/2011, the Opponent filed their say on the amended application dtd. 24/2/2011. In this say, the contentions about notice dtd.5/1/2010 and 17/1/2009 sent by the Opponent to the Complainant for termination of agreement. On 8/4/2011, the Opponent filed memorandum of understanding dtd. 19/4/2010. This document is not registered only notorized hence this document have no legal status as per our opinion. The Opponent filed agreement to sale dtd. 10/12/2010 executed between the Opponent and Pranchi Mane. The Opponent filed possession letter issued by Opponent to Prachi Mane dtd. 30/8/2010. After perusal of these documents it reveals that the possession letter given by the Opponent before the agreement to sale to Prachi Mane. It means that any builder without executing agreement to sale not given possession letter to any flat purchaser normally. Hence in our opinion the document filed by the Opponent i.e. possession letter appears to be fabricated one. There is no any affidavit or any application filed by Prachi Mane on record which shows that the disputed flat is in possession with her. The Complainant filed this complaint application before this Forum on 29/1/2010 and thereafter, the Opponent executed agreement for sale with third party i.e. Prachi Mane dtd. 10/12/2010. It means that when the matter was pending before this Forum about the disputed flat, in the meantime the Opponent executed agreement to sale with third party i.e. Prachi Mane. Hence in our opinion the act of the Opponent is not considerable in the eyes of law. On 2/5/2011, the Opponent filed xerox copy of Special Civil Suit No. 280/2011 filed on 8/2/2011 between the Opponent and Nitu Singh (Complainant) and Axis Bank before the Hon’ble Civil Judge, Senior Division, Pune. After perusal of the documents, it reveals that the Opponent filed Civil Suit for declaration, cancellation of agreement and injunction. This act of the Opponent shows that the Opponent himself admitted that the termination of agreement is not came into existence till filing civil suit by him. There is no any order in the suit for interim relief is brought on the record by the Opponent. It means that the Opponent himself admitted that till date the termination of agreement is not in existence. On 2/5/2011, the Opponent filed reply to the application for interim relief and firstly brought on the record that the Opponent deposited the amount of Rs.5,50,000/- to the creditor bank i.e. Axis Bank Power Home Loan A/c. Nitu Singh. And has also mentioned that also refunded Rs. 1,24,000/- to the Complainant. After perusal of the documents it shows that the Opponent suomotto deposited the amount of Rs.5,50,000/- in the loan account of the Complainant. The disputed flat without consent of the Axis Bank sale to the third person and therefore, the Axis Bank given letter / notice to the Opponent and intimated to the Opponent that the agreement for sale of said flat executed between the Opponent and third party be cancelled within 20 days from the receipt of letter. It reveals that the Bank has also not given consent to the agreement to sale executed in between the Opponent and the third party, who disbursed the loan to the Complainant against the mortgaged flat. Therefore, the transaction between the Opponent and Prachi Mane is not permissible under the law and hence not binding on the Complainant. On the contrary in our opinion, the Opponent has committed fraudulent act with the Complainant and the Axis Bank. Moreover, without the consent of the Axis Bank, the sale of the mortgage flat to third person is one of the wrongful act made by the Opponent. With aforesaid discussion it is crystal clear that the Opponent received the amount of Rs.7,00,000/- from the Complainant and thereafter sent a notice repeatedly for termination of the agreement but failed to give possession alongwith Occupation Certificate and Completion Certificate to the Complainant which amounts to deficiency in service on the part of the Opponent to the Complainant.
[21] The Opponent filed I (1995) CPJ 4 NC Branch Manager, LIC Of India & Anr. V/s. Smt. Zareena Sulaiman, AIR 1987 Supreme Court 2179 Vinor Kumar Arora V/s. Surjit Kaur, 2006 DGLS (Soft.) 600 S.C. Oriental Insurance Co.Ltd. V/s. Munimahesh Patel. After perusal of the citations, we opined that the Complainant filed firstly their complaint for deficiency rendered by the Opponent for the defective works of construction. And also for possession and for execution of conveyance of the property. The Complainant filed their complaint on 29/1/2010 before this Forum and thereafter after more than one year, the Opponent filed civil suit before the Civil Court. The prayers made by the Complainant against the Opponent before this Forum is different from the prayers of the Opponent before the Civil Court. As per the Consumer Protection Act, the Complainant has remedy to file complaint against the builder for possession, conveyance, correction of defective work in construction in condition if he paid the total consideration to the Opponent as agreed between flat purchaser and builder. Therefore, the authorities filed by the Opponent is not applicable to this complaint. As per Section 3 of The Consumer Protection Act (Act not in derogation of any other law) Next Section 3 of the Consumer Protection Act makes it abundantly clear that the remedy provided under the Act is ‘in addition to and not in derogation of any other law for the time being in force. The reason is that the Act intends to relieve the consumers from the cumbersome proceedings of civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case come to the conclusion that appropriate forum for adjudication for the disputes would be otherwise than those given in the Act. The Apex Court has made it clear in various judgements that the provisions of the Consumer Protection Act are required to be interpreted as broadly as possible and the fora under the Act would also have jurisdiction to entertain a complaint despite the fact that other fora/ court would have jurisdiction to adjudicate upon the said case. The trend of the decisions is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different for a have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated.
[22] The Complainant prayed in her prayer clause that the Opposite Party may be directed to remove the defect in construction work as pointed out in para No. 2 (a) to 2 (k) in the complaint and handover the possession of the said flat No. 8 by accepting remaining consideration amount of Rs. 14,000/-. As per the order of the Hon’ble Forum, the Court Commissioner visited the disputed flat and thereafter the Commissioner filed his commission report with photographs on record. After perusal of the Court Commissioner report it reveals that there are defects in construction which are enumerate as under :- (i) The backside (east) of the building did not have a compound wall. (ii) The second borewell was located inside the transformer room, this was extremely hazardous to the occupants of the building but the boring was not in working condition. (iii) There was a leakage from one of the overhead water tank. (iv) The building had leakages at various places. (v) The parapet wall of the terrace was 2’ in height. This was extremely unsafe to the occupants of the building. (vi) Mosquito net was not provided to the kitchen window, (vii)One of the sockets inside the bathroom was not fitted properly. (viii) The fixing of the faucets inside the bathroom was incomplete, (ix) The kitchen top was not in granite but was made of green marble (x) The drinking water connection was provided inside the flat but it was not in working condition. (xi) The wash basin inside the flat was not fixed properly. Neither the Opponent has challenged the Court Commissioner report nor did file any say. Therefore relying on the Court Commissioner report, in our opinion the Opponent is directed to rectify these defects.
[23] In the context of prayer clause (c), we opined that the Opponent needs to be directed to submit the property either to the provisions of the Maharashtra Apartment Ownership Act, 1970, by executing and registering the requisite declaration, as provided in the said act and to convey the title etc.. The Complainant in the prayer clause (c ) prayed that the Opposite Party may be directed to pay the bill of temporary meter and to give the separate electricity meter to the Complainant. The Complainant filed on record that electricity bill is pending in the name of Opponent and also notice sent by the MSEDCL to the Opponent for the disconnection of the electricity connection due to non payment of the electricity bill. And therefore, we opined that the Opponent needs to be directed to allot separate new electricity meter in the name of the Complainant by payment of outstanding dues by the Opponent to MSEDCL
[24] After perusal of proceedings, it reveals that the agreement executed between the Complainant and the Opponent on 5/2/2007, the Complainant had given last installment on 14/7/2009 to the Opponent. But till date the Opponent failed to handover the possession of the disputed flat inspite of receiving the amount of Rs.7,00,000/- out of total consideration of Rs.7,14,000/-. We found there is no any reliable ground putforth by the Opponent for non-delivery of the possession of the flat to the Complainant. It is mandatory on the Opponent that when the Opponent demanded the final installment from the flat purchaser and at the time of delivery of the flat the Opponent must have Occupation Certificate and Completion Certificate with him. But there is no any documentary evidence on the record which shows that when the Opponent repeatedly sent letters / notices for termination of the agreement at that time the Opponent was having Completion Certificate and Occupation Certificate with him. And the Opponent without having Completion Certificate and Occupation Certificate sent letter / notice to the Complainant for the termination of the agreement is illegal one. And this act of the Opponent caused mental and physical harassment to the Complainant which needs to be compensated. The Complainant has demanded Rs.5,25,000/- on account of compensation. However, no documentary evidence is produced on the record. Only contentions raised in the complaint application without any cogent evidence will not suffice to draw any conclusion. The justification is equally important while seeking any relief. However the fact remains that the Opponent did not handover the possession of the flat to the Complainant and withhold the amount of Rs. 7,00,000/- with him, for which the Complainant has sufferred mental, physical and economical harassment, hence the Opponent is liable to pay the amount of Rs.50,000/- as a compensation to the Complainant. As also the Complainant has to file the present complaint before the Hon’ble Forum to seek relief and therefore she sustained cost of the proceedings, which needs to be recovered from the Opponent. Therefore we direct the Opponent to pay Rs.5,000/- to the Complainant towards cost of the proceedings.
[25] With the aforesaid discussions, we proceed to pass the following order :-
// ORDER //
(i) The complaint is partly allowed.
(ii) The Complainant is directed to pay Rs. 14,000/- (Rs. Fourteen Thousand Only) as per the agreement to the Opponent within a period of (15) days from the date of receipt of this order.
(iii) After receipt of the amount from
the Complainant, thereafter within a period of (30) days the Opponent is directed to rectify the defects in the construction alongwith the amenities as per the specifications mentioned in the agreement dtd. 5/2/2007 alongwith separate electricity meter and handover the possession of the flat No 8 situated on the first floor, , in C Wing in the Scheme Classic Plaza.
(iv) The Opponent is also hereby directed to
pay to the Complainant an amount of Rs.50,000/- (Rs. Fifty Thousand Only) towards compensation and Rs.5,000/- (Rs. Five Thousand Only) towards cost of the complaint proceedings, within a period of (30) days from the date of
receipt of this order
(v) Certified copies of this order be supplied to
both the parties free of costs.
