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Advocate S.M. Pande for the complainant
Advocate Jayashree Kulkarni for the Opponent
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 27th August 2013
This complaint is filed by consumer against the Contractor for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainant is the resident of Rasta Peth, Pune. Opponent is in the profession of construction. Complainant is the owner of city survey No. 509 admeasuring 115.40 sq.mtr. which is situated at Rasta Peth. Complainant was intending to develop the said property hence he had entered into contract with Opponent. Development Agreement was notorised on 30/1/1999. Complainant had executed power of attorney in favour of the Opponent on the same day. It was agreed between the parties that the Opponent shall allot construction of 1200 sq.ft on the second floor and shop admeasuring about 200 sq.ft on the ground floor in lieu of development rights. It was specifically agreed that the Opponent shall deliver two flats admeasuring 750 sq.ft and 450 sq.ft on 2nd floor and shop admeasuring 200 sq.ft on the ground floor. It was further agreed that the possession of the said flats and shop was to be delivered within 24 months from the sanction of plan by P.M.C. The plan was sanctioned on 25/02/2003. The Opponent has started construction work but the construction was left incomplete for one year. When the complainant asked about the completion of the construction the Opponent replied evasively and denied for completing construction work. Till filing of the complaint construction was not completed. However the Opponent had sold out certain shops to third parties and earned profit from those transaction. On 16/7/2011 P.M.C. issued letter to the opponent as regards completion of the construction. The Opponent gave false promises and failed to comply the terms and conditions of the agreement. Hence complainant has filed this complaint for deficiency in service. He has prayed for completion of construction work as per the sanctioned plan and to give possession. He has claimed Rs.5,00,000/- for mental and physical harassment, Rs.5,00,000/- for not giving possession of the shop to the complainant, Rs.4,00,000/- for renovating incomplete constructed flat for temporary accommodation, Rs.1,00,000/- for keeping the site clean specifically during monsoon season.
[2] The Opponent resisted the claim by filing written statement. It has denied the contents of the complaint. It has specifically denied that the Opponent has caused deficiency in service by not completing the construction of the building. It has also denied that the Opponent willfully left the construction incomplete. It is the case of the Opponent that the relations between the parties are not as a consumer and service provider as the complainant had executed development agreement and power of attorney in favour of the Opponent and he is working as agent of the complainant. It is further contended by the Opponent that this Forum has no jurisdiction to entertain the present complaint. The allegations about compensation demanded by the complainant are also denied. It is the case of the Opponent that the complaint is time barred as the alleged agreement was executed in the year 1999 and the complaint is filed in the year 2011. The Opponent has prayed for dismissal of the complaint.
[3] After scrutinizing the documentary evidence, affidavit of both parties as well as pleadings, following points arise for my determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether the relations between the complainant and the Opponent are as consumer and service provider ? | In the affirmative |
2 | Whether the complainant has proved that the Opponent has caused deficiency in service ? | In the affirmative |
3 | What order ? | Complaint is partly allowed. |
Reasons-
As to the point Nos. 1 to 3-
[4] It reveals from the pleadings of the Opponent that it has admitted facts as regards owner of disputed property by complainant. The execution of development agreement and power of attorney are also not denied by the Opponent. It is not in much dispute that the Opponent agreed to allot construction of 1200 sq.ft and shop admeasuring 200 sq.ft. to the complainant. The Opponent has not produced any record to show that he had delivered the possession of those properties to the complainant. Complainant has produced certain photographs which are showing that the construction of the disputed property is still in complete. Certain photographs are also showing that the complainant has spent expenses for renovation of the flat for temporary accommodation. The Opponent has not produced any documentary evidence to show that it has made efforts for the fulfillment of the development agreement. According to the Opponent the complainant had executed agreement as well as power of attorney in favour of the opponent. The relations between the parties are such as agent and principal and not as consumer and service provider. It reveals from the pleadings of the parties that the Opponent had sold out some of the shops which were constructed over the said property. In such circumstances inference can be drawn that the relations between the complainant and the opponent were as principal and agent as regards third party. But the relations between the complainant and the opponent appears to be consumer and service provider as the opponent agreed to provide services of construction in favour of the complainant. Hence I held that the relations between the complainant and the opponent are as consumer and service provider and this Forum has jurisdiction to try and entertain the present complaint.
[5] It reveals from the agreement as well as pleadings of both parties that the opponent agreed to allot two properties i.e. flat of 1200 sq.ft and shop of 200 sq.ft to the complainant. Opponent has not produced any evidence to show that the alleged construction was completed and possession of the property was delivered. Hence I held that this is clear cut case of deficiency in service. The agreement was executed in the year 1999 but the opponent has not complied with the terms and conditions of the agreement till 2013. As there was obligation on the part of the opponent it can be said that the cause of action is continuous and complaint is well within the limitation. The Opponent has not produced any record to show that the construction was prolonged due to any plausible reason and the opponent was prevented from completion of the construction work. Hence I held that the complainant has proved deficiency in service on the part of the opponent. Complainant is entitled to receive compensation for deficiency in service to the tune of Rs.1,00,000/-, compensation for mental and physical harassment to the tune of Rs.50,000/- and cost of litigation to the tune of Rs.1000/-.
I answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that the Opponent has caused deficiency in service by keeping the construction incomplete.
3. Opponent is directed to complete the construction work as per the sanctioned plan and deliver the possession of flats admeasuring 750 sq.ft built up area and 450 sq.ft built up area on the second floor and shop of 200 sq.ft on the ground floor situated at C.T.S.No.509, Rasta Peth, Pune to the complainant within six weeks from the date of receipt of copy of order.
4. Opponent is directed to pay to the Complainant Rs.1,00,000/- towards compensation for deficiency in service, Rs.50,000/-towards compensation for mental and physical harassment and cost of litigation to the tune of Rs.1000/- within six weeks from the date of receipt of copy of order.
5. Both parties are directed to collect the sets which are provided for the Hon’ble Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place- Pune
Date – 27/08/2013
[S. M. Kumbhar] [V. P. Utpat]
Member President
