Per Shri S.B. Sawarkar, Hon’ble Member
This appeal takes an exception to an order dated 21/11/2009 passed in consumer complaint No.113/2007 (Mr.Shrikant Vasant Chopde V/s. M/s.Sankalp Constructions) by Addl. District Forum, Pune.
2. It is the case of the original complainant/appellant herein that he had booked a residential flat bearing No.13 in Building No.N admeasuring 44.60 sq.mtrs. being constructed by respondents/original opponents in Survey No.82 Hissa No.2/2 of Mauje Dhanori, Tal. Haveli, District Pune.
3. The respondents had executed an agreement of sale in favour of appellant/complainant which was registered on 04/03/2004 for total consideration of `2,55,000/- for the said flat, out of which appellant/complainant had paid `25,000/- as first payment on 26/02/2004. Later on, respondents/opponents informed the complainant/appellant that as they could not get the required sanctions for the said flat, in lieu of same they offered a flat No.2 on the ground floor of Building No.F and for which a correction deed was executed on 30/06/2004. The appellant/ complainant had also paid `24,000/- on 29/06/2004 to the respondents/opponents.
4. As per conditions of the agreement, possession of the flat was to be given within a period of 14 months. However, respondents/opponents in view of inflation, asked the appellant/complainant to modify the price of said flat to `3,75,000/- to which appellant/complainant agreed and a new agreement was registered on 08/09/2006. The appellant/complainant procured a loan from his office to pay for the price of said flat and when went to pay to the respondents/opponents, respondents/opponents again asked to pay `1 Lakh more by way of escalation and asked the appellant/complainant to enter into a new agreement of sale to which the complainant did not agree.
5. Respondents/opponents thereafter failed to give possession of the flat as per agreement dated 08/09/2006 to the appellant/complainant upon which the appellant/complainant made a complaint before the Addl. District Forum, Pune. District Forum vide its order dated 21/11/2009 rejected to accept the prayers of the appellant/complainant but gave him the relief of refund of the amount paid for booking of the flat to the respondents/opponents with interest @ 8% p.a. Aggrieved by the order as above, the appellant/complainant has filed this appeal before us for relief.
6. Heard both the parties and considered the material placed on record.
7. It is contention of the appellant/complainant that as per agreement dated 08/09/2006 between respondents/opponents and the appellant/complainant, respondents/opponents have not provided him the flat as agreed in the agreement in a span of fourteen months thereby causing deficiency of service. The Learned District Forum did not appreciate the failure of the respondents/opponents in providing the agreed service to him and therefore, prayed for direction to the respondents/opponents to provide him a flat as agreed and also the compensation for delayed possession and cost for the appeal. It is his contention that mere refund of consideration with interest would not meet the ends of justice.
8. Respondents/opponents have based their contention and the fact that on 15/12/2006 vide their letter they have cancelled the agreement dated 08/09/2006 as appellant/complainant failed to pay the agreement cost of the flat. Therefore, the appellant/complainant is not entitled to the allotment of said flat. At the same time, the appellant/complainant has not impleaded the other parties to the agreement and therefore, the complaint gets vitiated due to non-joinder of other parties to the agreement and complainant also suppressed material facts and therefore, it ought to have been dismissed. Thus, in any case in appeal no further modification is required.
9. District Forum while considering the complaint of the appellant/complainant has considered cancellation letter of the respondents/opponents dated 15/12/2006 and accepted the cancellation of agreement. It came to the conclusion that complainant would not be eligible to get the allotment of the flat and had therefore, rejected the complainant’s prayer to that effect.
10. It is agreed that there is an agreement executed between four parties to the construction of the flat on 08/09/2006 i.e. (1) Lokshahir Annabhau Sathe Magaswargiya Sahakari Sanstha Maryadit, Dhanori, Pune, Party of the First Part (2) Sankalp Constructions through their Authorised Partners-respondent Nos.1&2, Party of the Second Part (3) Present appellant/complainant, Party of the Third Part with one Trinity Town Development & Finance Private Ltd. through their Directors, Party of the Fourth Part. The entire issue now lies on the letter of cancellation sent by respondents/opponents dated 15/12/2006 to the appellant/complainant stating therein that if the appellant/complainant does not pay `3,40,670/- as payable amount in the span of eight days, his flat would be cancelled and the new member would be taken in his place. Respondents/opponents claimed their action based only on this letter which they have shown to have been sent at the address of the appellant/complainant somewhere at..Yerawada, Pune-06.
11. Perusal of the agreement which is on record shows that it is Four Party agreement in which opponents/respondents have agreed to provide flat No.2, ground floor, Building No.F, admeasuring 44.60 sq.mtrs. with 300 sq.ft. of open space to appellant/complainant for cost of `3,75,000/- in a span of fourteen months from the date of agreement. The agreement also shows that the appellant/complainant shall be required to pay the price in installments as per stages of construction. The appropriate demand is to be raised by the respondents/opponents as per progress of the construction duly certified by the Architect. The agreement also shows that in default of payment, purchaser shall be liable to pay interest @ 18% p.a. till realization of the dues which is one of the preferred option prior to termination of the agreement.
12. As against these stipulations, it does not appear from the record that Party of the Second Part-respondents/opponents had raised the demand for payment as per the agreement by specifying the stages of construction supported by certificate from the Architect. It duly shows that no valid demand was raised under which the flat purchaser was obliged to meet and pay the amounts i.e. part consideration. Only sending one letter without any pre or post correspondence, within a span of three months (of renewed agreement), only speaks for arbitrariness of the action (of termination) on the part of the builder and which cannot just be accepted.
13. With the facts stated as above, it shows that agreement signed on 08/09/2006 subsists, therefore, subject to payment of installments as per stages of the construction duly certified by the Architect, once the builder-opponents failed to hand over possession of the flat, deficiency in service within the meaning of Section 2(1)(o) of the Consumer Protection Act, 1986 is well established.
14. The contesting opponent/builder who raised objection that the complaint gets vitiated due to absence of other parties to the agreement, we find that the Society as well as the landowners (first party and fourth party to the agreement are just necessary parties. The building is to be constructed by the builder/Construction Company and entire consideration is to be paid to and to be received by the builder. It is the builder alone is given right to cancel the contract in case of default of the payments. Under the circumstances, there is direct relationship as a consumer and service provider between the complainant and the builder and deficiency in service for not handing over the possession could be alleged on the part of builder alone. Hence, presence of the Society or the landowner, supra, would not adversely affect the tenability of this consumer complaint.
15. Considering all these material and facts placed before us, we come to the conclusion that the agreement executed on 08/09/2006 subsists and the respondents/opponents are bound to provide the appellant/ complainant the agreed flat for the agreement amount as per the agreement. We therefore pass order as below :-
-: ORDER :-
1. Appeal is allowed. The impugned order dated 21/11/2009 passed by District Forum is set aside.
2. Respondents/opponents-builder do deliver possession of the flat to the appellant/complainant and the appellant/complainant to receive the same. At the time of receiving the possession, the appellant/complainant shall pay a balance of consideration of `3,40,670/- to the respondents/opponents-builder.
3. Respondents/opponents-builder shall be entitled to recover other charges for the flat such as electricity charges, water charges, etc. from the appellant/complainant at par which were recovered from the other members of the Society.
4. Respondents/opponents-builder to bear their own costs and pay `20,000/- as costs of appeal to the appellant/complainant.
5. Copies of the order be furnished to the parties.
Pronounced
Dated 10th April 2013.
