JUSTICE V.K.JAIN (ORAL)

On 13.3.2006, the complainant booked a three bed room flat with the opposite party in Phase-II of Susheela Sea Winds Complex at Vaddem, Vasco-da-Gama paying a booking amount of Rs.3,54,414.60. Flat No.419 was allotted to him on the 4^th floor of the building and an agreement dated 1.5.2006 was executed between the parties. The sale price of the flat alongwith independent parking lot was agreed at Rs.24,22,500/-.

2.      Vide Email dated 14.3.2007, the opposite party informed the complainant that for the reasons stated in the Email, they had not been able to start construction of the flat and, therefore, if he did not wish to continue, they could return his money with interest. Vide Email dated 4.6.2007, the opposite party informed the complainant that due to additional cost incurred by them in acquiring a narrow strip of land on the northern side of the property, they had changed the plans and the apartments in the new block were priced at Rs.25,000/- per sq.mtr. + Rs.1,00,000/- for the stilted car parking. The complainant was given offer to take apartment in the new block at Rs.22500/- per sq.mtr. + Rs.75,000/- for the stilted car parking. He was also given option to take refund of the booking amount with interest. The complainant raised some queries vide his reply Email dated 5.6.2007 and also asked whether the opposite party was interested in selling him another flat in the new block at the new rates with a little larger space. Thereafter, vide letter dated 20.12.2008, the opposite party informed the complainant that the entire block in which booking was made by him had ceased  to exit and therefore they were returning full amount of Rs.354414/- paid by him. The complainant responded vide letter dated 9.2.2009 seeking reasons for the change and also stated that the cheque referred in the letter was not found enclosed. Vide letter dated 17.2.2009, the opposite party maintained that a cheque had been enclosed by them to their letter dated 10.12.2008 but no fresh cheque was enclosed to the  letter dated 17.2.2009. It is thus evident that the opposite party unilaterally scrapped the block in which the allotment had been made by it to the complainant and though it had offered to refund the amount paid by him with interest or in the alternative allotment in the new block at a higher price, the interest on the amount of Rs.3,54,414/-  was not even offered to the complainant along with the letter dated 10.12.2008. Moreover, despite the complainant claiming that no cheque for the amount of Rs.354414/- had been annexed, the opposite party did not send a fresh cheque  for that amount to the complainant.

3.      Eventually, the complainant accepted allotment of flat No.5G in the project and executed an agreement dated 13.7.2011. The price of which was payable in the following manner:-

“SCHEDULE-III

SCHEDULE OF PAYMENTS

          Thus the amount of Rs.3,54,414/- out of the amount of Rs.3,54,414.60 paid by the complainant at the time of earlier booking was adjusted against Flat No.5G.

4.      The possession of flat No.5G was taken by the complainant on 18.9.2012. The opposite party also demanded an amount of Rs.864020.82 from the complainant for the additional work alleged to have been done by it in the flat allotted to the complainant. The case of the complainant is that there were several deficiencies in the flat when it was occupied by him and the parking lot which the opposite party had allotted to him alongwith flat No.5G had been sold to the owners of others flat. The complainant therefore approached the concerned State Commission  by way of a consumer complaint.

5.      The opposite party filed written statement before the State Commission  contesting the consumer complaint on several grounds.

6.      The complainant had also filed an application under Section 24A of the Consumer Protection Act before the State Commission seeking condonation of delay in filing of the consumer complaint. The application was contested by the opposite party but was allowed by the State Commission vide its order dated 28.7.2017. The order passed by the State Commission  was challenged by the opposite party by way of FA/2262/2017. The said appeal came to be dismissed by this Commission vide its order dated 28.2.2018. The order passed by this Commission on 28.2.2018 having not been challenged, became final.

The learned counsel for the opposite party submits that the condonation of delay known by the State Commission was non est  in the eyes of law since the State Commission eventually held that it did not have pecuniary jurisdiction to entertain the complaint. In my view, the said issue cannot be raised up again since the appeal preferred by the opposite party against the order of the State Commission was dismissed and the order passed by this Commission was not challenged before the Hon’ble Supreme Court.

7.      The consumer complaint was eventually  dismissed by the State Commission vide its order dated 30.10.2018 on the ground that the said Commission  did not have pecuniary jurisdiction to entertain the complaint. The complainant, therefore instituted this complaint before this Commission, seeking the following reliefs:-

“(a)  pass an order in favour of the complainant and against the opposite parties for the Removal of deficiencies as indicated in the Snag/Deficiency List, Issuance of the Occupancy/Possession Certificate, NOC, Execution of the Conveyance/Sale Deed in respect of Flat 5G and pay for stamp duty, registration fee, Infrastructure tax, House tax, Water meter connection, Labour cess, 3 years maintenance, Works done by the complainant etc. as per terms of the SCHEDULE III of the Agreement of Sale subject to adjustment of Rs. 2.50 lakh remaining from the cost of Rs.50 lakh for the Flat 5G.

(b) Pass an order in favour of the complainant and against the opposite parties for the payment of the claim of Rs.83,89,813/- (Eighty three lakhs eighty nine thousand eight hundred thirteen only) as detailed in para 30 above plus interest @ 18% on the amount wef 01.07.2017 till the date of its realization.

(c) Award costs in favour of the complainant and against the opposite parties.

(d) Any other relief which this Hon’ble court may deem fit under the facts and circumstances of the case may also be passed in favour of the complainant and against the opposite parties.”

8.      The complaint has been contested by the opposite party on several grounds including that the complaint is barred by limitation and it has been filed as a counter blast to the civil suit which the opposite party  has filed against him for recovery of money and which is pending before the Civil Court at Vasco-da-Gama in Goa. However, the opposite party admitted initial allotment made to the complainant, receipt of Rs.354414.60/- from him as well as the allotment of flat No.5G to him  in terms of the agreement dated 13.7.2011. It is stated in the written version that the price which the complainant had paid under the previous agreement was adjusted towards sale price of the flat sold to him under the new agreement and, therefore, the first agreement stood cancelled and terminated.

9.      It is also stated in the written version filed by the opposite party that the Occupancy Certificate had been obtained by it on 25.3.2011 and the entire Phase VI was ready and complete. It is also alleged that the complainant had requested additional works to be carried out and a bill for the said additional works was raised upon him. Since that amount was not paid, a civil suit was filed which is pending before the Civil Court. The opposite party has claimed that a total sum of Rs.2160990/- is due to it from the complainant as detailed in para 11 of the written version.

10.    I have heard the complainant who is appearing in person. Since he is not represented by a counsel, I had offered to provide him a counsel at State expense but, he has declined the offer and has chosen to argue in person. Therefore, I have heard the complainant as well as the learned counsel for the opposite party.

11.    As far as the first transaction between the parties is concerned, as noted earlier, the building in which allotment was made to the complainant was not taken up and the construction of that building was scrapped by the opposite party which offered refund of the amount paid by the complainant with interest or in the alternative allotment in the new building at a higher cost of Rs.22500/- per sq.mtr. + Rs.75,000/- for the car parking. A perusal of the agreement executed between the parties in respect of flat No.5G in the new building would show that only a sum of Rs.3,54,000/- was adjusted towards the price of the new flat allotted to the complainant. There is no evidence of the complainant having insisted at that time that the interest which had accrued on the aforesaid amount of Rs.3,54,414/- till that date should also be adjusted towards the price of the new flat allotted to him. It would also be pertinent to note here that the offer made by the opposite party  to the complainant envisaged either refund of the amount of Rs.3,54,414.60 with interest or allotment in the new building at a concessional price of Rs.22500/- per sq.mtr. + Rs.75,000/- for the car parking and there was no offer given by the opposite party to adjust the interest which they had accrued on the amount of Rs.3,54,414.60 towards the price of the new flat. Thus the complainant in my opinion, gave up his claim for interest which had accrued on the amount Rs.3,54,414.60 by accepting allotment in the new building at the price of Rs.22500/- per sq.mtr. + Rs.75,000/- for car parking. The agreement which the parties had entered initially for allotment of the flat booked on 13.3.2006, therefore, stood terminated on adjustment of Rs.3,54,000/- towards the cost of the new flat. The complainant, therefore, is not entitled to any interest or any compensation in respect of the first transaction entered into between the parties.

12.    As far as flat No.5G allotted to the complainant is concerned, admittedly the possession of the flat has already been taken by the complainant on 18.9.2012. The case of the complainant is that he had found several defects and deficiencies in the said flat No.5G in the new building. The said deficiencies have been detailed in the letter of the complainant dated 21.1.2015 Ex. C-23/OP on page 267 of the paper-book and pertain to aluminum French doors and window, wall cracks and water seepages,  carpentry, pluming, tiles and granite stone and electrical works, AC plant and chiller unit. There is also a grievance with respect to car parking which the complainant claims to have been allotted to other flat owners and with respect to House Tax.

13.    Vide its letter dated 22.1.2015, the opposite party responded to the letter of the complainant dated 15.1.2015. In its letter, the opposite party claimed that there was an outstanding amount of Rs.1160990/- against him and that they did not have access to the flat to carry out repairs as the keys were in possession of the complainant. As regards House Tax, it was stated that the complainant was to pay the taxes though the opposite party  will provide NOC to get the name changed. The demand for execution of the extra items was reiterated and as regards the Conveyance Deed, it was stated that the same would be executed on payment of the outstanding amount.

14.    In my opinion, the opposite party must necessarily get the defects and deficiencies referred in the letter of the complainant dated 21.1.2015 removed at its own cost since the existence of deficiencies as such was not disputed in the reply sent by it to the complainant on 22.1.2015. The only plea taken in the reply was that the repairs could not be carried out, the keys being with the complainant.

15.    As far as the demand of the opposite party for the cost of the alleged extra works is concerned, there is no evidence of the complainant having asked the opposite party, after execution of the agreement dated 13.7.2011, to execute any additional work in flat No.5G allotted to him. Though in an earlier mail, the complainant had sought execution of certain works, the cost of such works is deemed to have been included in the cost of the flat agreed in the agreement dated 13.7.2011 which did not provide for payment of any additional cost for the extra works desired by the complainant. Therefore, the opposite party, in my opinion, is not entitled to any payment from the complainant for the said extra works.

16.    As far the Occupancy Certificate is concerned, the opposite party having already obtained the partial Occupancy Certificate which entitles the complainant to occupy the flat allotted to him. No further direction for this purpose is required.

17.    As far as NOC for transfer of the property in the name of the complainant in the record of the concerned Municipal Corporation is concerned, the opposite party in my opinion, must necessarily provide the said NOC to the complainant.

18.    As far as the execution of the Conveyance Deed is concerned, the opposite party has to execute the said Deed  in favour of the complainant, on the complainant paying the requisite stamp duty and registration charges, etc.

19.    As far as maintenance charges are concerned, no ground for refund of the said charges is made out, the complainant having taken possession of the flat in the year 2012 itself.

20.    No recalculation of the price of the flat is required, the price having been stipulated in the agreement executed between the parties.

21.    As far as parking lot is concerned, the agreement would show that the opposite party had to provide a parking lot No.3 meant for two cars to the complainant. That, however, has not been done. The opposite party should therefore, provide  parking lot meant for parking of two cars in this very project to the complainant.

22.    The possession of the flat No.5G as per the agreement between the parties was to be delivered to the complainant by 12.12.2011. The possession was, however, handed over only on 18.9.2012 The opposite party should, therefore, pay agreed compensation of Rs.10,000/- per month to the complainant for the aforesaid delay between 12.12.2011 and 18.9.2012 @ Rs.10,000/- per month, as is claimed by the complainant.

23.    As far as the statutory dues including House Tax are concerned, the complainant has to pay the same w.e.f the date on which the possession of the flat was taken by him. The taxes and other dues for the period prior to that date have to be borne by the opposite party.

24.    For the reasons stated hereinabove, the consumer complaint is disposed of with the following directions:-

1. The opposite party shall remove the deficiencies referred in the letter of the complainant mentioned at Sl. Nos.1,2,4 and 5 of the letter of the complainant dated 21.1.2015 within three months from today.

2. The opposite party shall not be entitled to any amount from the complainant for the alleged extra works done by it in flat No.5G.

3. The opposite party shall pay compensation @ Rs.10,000/- per month to the complainant for the period from 12.12.2011 and 18.9.2012.

4. The opposite party shall pay all the dues including House Tax in respect of flat No.5G for the period prior to the date on which the possession was taken by the complainant.

5. All dues w.e.f. the date on which the possession was taken shall be paid by thecomplainant.

6. The opposite party shall issue NOC to the complainant within two months from today to enable him to get flat No.5G transferred / mutated in his name.

7. The opposite party shall execute the Conveyance Deed of flat No.5G in favour of the complainant within three months from today.

8. The requisite stamp duty charges and registration charges for this purpose will be borne by the complainant.

9. The opposite party shall provide a car parking meantfor parking of two cars in this very project to the complainant within three months from today.

10. The opposite party shall pay a sum of Rs.25,000/- to the complainant as the cost of litigation.

25.         It is made clear that the observations made and the view taken in this order shall not affect the civil suit pending between the parties in any manner.