Common order in CC/09/55 + CC/09/56 + CC/09/175

Per – Hon’ble Mr. Narendra Kawde, Member

          Since these three consumer complaints bearing Nos.55 of 2009, 56 of 2009 and 175 of 2009 involve identical facts and common question of law, all these three complaints are clubbed together and are decided by this common order.  Consumer Complaint No.55 of 2009 is being treated as ‘Master Complaint’ while other two complaints are treated as ‘Slave Complaints’.

[2]     Alleging deficiency in housing construction service on the part of the Opponents viz. Paranjape Construction Company, the Opponent No.1 herein and its partner, Mr. Jayant Moreshwar Paranjape, the Opponent No.2 herein, as the promoter/builder, in all 82 Complainants have jointly filed these three consumer complaints, seeking possession of residential premises or alternatively refund of consideration paid together with consequential relief of compensation and costs of the proceeding.  The facts giving rise to these complaints lie in a very narrow compass.

[3]     The Opponents had floated a construction scheme at Village Kophrad, Taluka Vasai, District Thane; under the name and style as ‘Paranjape Nagar’, comprising of multi-storied buildings, row-houses and bungalows.  Each of these Complainants approached the Opponents to purchase a residential tenement.  Each of the Complainants paid to the Opponents certain amounts as per schedule annexed to these complaints, more particularly Annexure-2 in Consumer Complaints No.55 of 2009 and 56 of 2009 and Exhibit-B in Consumer Complaint No.175 of 2009.  (These schedules shall form part and parcel of this order).  According to the Complainants, the construction work could not take-off and eventually the scheme could not be completed for want of requisite approvals either from local bodies or the Government, as the case may be and on account of inter-se dispute between the Opponents and some local villagers.  It is the case of the Complainants that inspite of their repeated requests and pre-complaint notices the Opponents neither handed over the possession of respective residential tenements to the Complainants nor refunded the amounts received from each of the Complainants, as promised.  In paragraph (12) of the complaint, the Complainants have categorically stated that now they are simply interested in getting refund of the amounts paid to the Opponents.  On these main grounds and other grounds as set out in the complaints, the Complainants have filed these complaints as against the Opponents seeking for the relief as narrated here-in-above.

[4]     Mr. Shrikant Ganpat Bidikar, one of the Complainants, has filed his affidavit in support of the complaint adopting all the contentions raised in the complaint as a part of his affidavit.  Moreover, in each of these complaints, each Complainant has also individually filed his/her affidavit in support of payments made by each of them to the Opponents and receipts issued by the Opponents.

[5]     On 7/1/2010 upon hearing Adv. S. D. Paithane on behalf of the Complainants, this Commission directed to issue notices to the Opponents and the notices were returnable on 24/2/2010.  Accordingly, notices were issued to the Opponents on 4/2/2010.  Postal acknowledgement receipt on the Record & Proceeding in Consumer Complaint No.175 of 2009 reveals that notice was duly served on the Opponents on 9/2/2010.  However, inspite of due service of notice the Opponents chose to remain absent on 24/2/2010.  Therefore, upon hearing Adv. S. D. Paithane for the Complainants, this Commission admitted these three complaints.  Again on 9/9/2010 this Commission directed to issue notices after admission returnable on 25/11/2010 to the Opponents calling upon the Opponents to file their written version.  Accordingly, notices were issued to the Opponents on 7/10/2010.  Postal acknowledgement receipt on the Record & Proceeding in Consumer Complaint No.175 of 2009 reveals that notice was duly served to the Opponents through Speed Post.  Further, Mr. Shrikant Ganpat Bidikar, one of the Complainants, filed his affidavit dated 1/2/2011 as regards service of notice to the Opponents, as contemplated under Section-28A of the Consumer Protection Act, 1986.  Relying upon such affidavit as regards service of notice to the Opponents, on 8/2/2011 this Commission held that there was proper service of notice to the Opponents after admission of these complaints and since there was failure on the part of the Opponents to file their written version as called for, this Commission directed to proceed ex-parte against the Opponents.  Upon hearing the learned advocate for the Complainants, the complaint was reserved for delivery of judgment and order.  However, later on, as certain clarifications were sought from the Complainants, this Commission directed to list the complaints for rehearing.  During the pendancy of these complaints, some of the Complainants expired and the Learned Advocate for the Complainants filed an application for bringing their legal heirs on the record.  On 21/6/2012, this Commission directed to issue notices on this application to the Opponents.  Accordingly, notices were issued to the Opponents on 4/8/2012 and those were dispatched to the Opponents through post on 7/8/2012.  Notices were kept returnable on 13/8/2012.  However, those notices were returned un-served with postal endorsement – ‘Unclaimed.  Returned to Sender’.  Thus, it is held there was proper service of notice to the Opponents.  Inspite of repeated proper services of notices at all stages, the Opponents neither filed their written version nor participated in the proceeding.

[6]     We heard Adv. S. D. Paithane on behalf of the Complainants.  We have also perused the voluminous documents and evidence on the record adduced by the Complainants.  The Opponents chose to remain absent throughout the proceedings and even did not advance oral submissions.  

[7]     In the present case, since there is a failure on the part of the Opponents to file their written version on the record, as called for by this Commission, the Complainants are entitled to the relief sought, provided they satisfy this Commission as to the claims set out in the complaint.  Moreover, no affidavit-in-reply is filed by the Opponents, challenging the statements made by the Complainants on oath, in their respective affidavits, and as such, those uncontroverted statements are required to be relied and acted upon.  Moreover, it is settled principle of law through catena of decisions of various superior authorities that every allegation of fact in the complaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings of the Opponents, shall be taken to be admitted except as against a person under disability.  Thus, relying upon the affidavits of the Complainants we have no hesitation in holding that inspite of receiving amounts from the Complainants towards part-consideration for their respective tenements, there is a failure on the part of the Opponents either to hand-over the possession of respective tenements to the Complainants by completing the construction work as promised or to refund the amounts to the Complainants in case it was not possible for them to proceed with the construction work.  Thus, there is patent deficiency in service on the part of the Opponents.

[8]     Upon hearing the Learned Advocate for the Complainants it has been transpired that now for what-ever may be the reasons, the Opponents are not in a position to start the construction work and complete the project and thereby hand-over possession of tenements to the respective Complainants.  Thus, now, with turn of events and situation, now the agreements entered into by the Opponents (either oral or in writing) have culminated into the agreements to do an impossible act.  It is settled principle of law that a contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.  Further when an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement is bound to restore it, or to make compensation for it, to the person from whom he received it.  Thus, on having received part-consideration from each of the Complainants and failure on their part to complete the construction work and hand-over possession of the respective tenements to the Complainants, the Opponents are under statutory obligation to refund the amounts received from each of the Complainant together with reasonable interest thereon.  Moreover, payments made to the Opponents by each of the Complainants were not gratuitous payments.  Since the Opponents are enjoying the benefits thereof, the Opponents are bound to pay compensation to the Complainants.  At the cost of repetition, we would like to again mention here that in paragraph (12) of the complaint, the Complainants have categorically stated that now they are simply interested in getting refund of the amounts paid to the Opponents as they are convinced that the Opponents are not in a position to commence and complete the construction.  Thus, in the facts and circumstances of the case we are of the opinion that if the Opponents are directed to refund to the each of the Complainants, the amounts received together with reasonable interest thereon, it would meet the ends of justice.

[8]     Earlier, in cases arising out of identical facts and circumstances, this Commission had directed the builder to refund the amounts together with interest thereon @ 15% p.a.  [See the earlier decisions of this Commission in Appeal No.1861 of 1998 (In the matters of M/s. Paranjape Construction Company Vs.  Mumbai Grahak Panchayat and 288 Others) decided on 20/6/2001.  So also, decision in Appeal No.584 of 1998 (In the matters of M/s. Paranjape Construction Co.  Vs.  Nilesh Ram Marathe).  We reiterate the stand taken earlier by this Commission.  Thus, we hold that in the present case, the Opponents shall refund to each of the Complainants, the amounts received from each of the Complainants together with interest thereon @ 15% p.a.

[9]     Mr. Jayant Moreshwar Paranjape, the Opponent No.2, in his capacity as the partner of the Opponent No.1, M/s. Paranjape Construction Company had issued a letter to each of these Complainants on 4/6/1997 narrating the difficulties faced by him in completing the construction work.  However, in the said letter he informed the Complainants that he had sorted out all the difficulties and assured the Complainants that soon he shall commence the construction and complete the entire project within a period of three years there-from.  However, such written promise was never adhered to and said letter was an attempt on the part of the Opponent to show a dangling carrot to the Complainants.  Thus, we hold that the Opponents are liable to refund the amounts to the Complainants together with interest thereon as from 4/6/1997 till realization of the amounts by each of the Complainants.

[10]    The Complainants have also claimed compensation towards harassment.  However, it is settled principle of law that when interest is allowed, no separate compensation needs to be awarded.  [See the decisions in Skipper Bhawan  V/s.  Skipper Scales (Pvt) Ltd. ~ I-(1995)-CPJ-210-(NC); M/s. Ketan Consultants Pvt. Ltd.  V/s.  Sanjiv Bansod & Anr. ~ I-(2000)-CPJ-24-(NC); Mumbai Grahak Panchayat  V/s.  M/s. Lohia Machine Tools ~ 1986-94-(Consumer)-240-(NS)].  Therefore, we hold that no separate amounts needs to be awarded to the Complainants by way of compensation.

          For the above reasons, we hold the Opponents guilty of deficiency in service.  Hence, we pass the following order:-

ORDER

(i)     Consumer Complaints Nos.55 of 2009, 56 of 2009 and 175 of 2009 are partly allowed.

(ii)     Opponents are jointly and severally directed to refund to each of the Complainants, the amounts received from each of the Complainants (as per schedule annexed in each of these complaints which shall form part and parcel of this order) together with interest thereon @ 15% p.a., as from 04^th June, 1997 within a period of sixty days from the date of this order and failing which additional penal interest @ 6% p.a. shall be payable on the amounts ordered to be paid with effect from 04^th June, 1997.

(iii)     However, it is hereby made clear that in Consumer Complaint No.55 of 2009, two Complainants viz. Mr. Vijay Maruti Shet (the Complainant No.13) and Mr. Ganesh Ramloo Kannapalli (the Complainant No.29) expired during the pendency of the complaint.  Their legal heirs are brought on the record.  In respect of these Complainants, the Opponents shall pay the amounts due to their respective legal heirs jointly.

(iv)     No order as to costs.

Pronounced on 15^th March, 2013