(BEFORE        :-          PRESIDENT   :-          Smt. Pranali Sawant                   )

                                    MEMBER        :-          Smt. Sujata Patankar                 )

 

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Complaint No. : APDF/149/2007

                                                           

                                                                        Date of filing      :-   24/09/2007

                        Date of decision :-    18/11/ 2011

 

Mr. Sharad Nanabhau Bhadane                                    ..          )

R/at : Swapnadeep, House No. 3461,                           ..          )

Ramnyanagari, Tal. Shirur, District : Pune.                 ..          )… COMPLAINANT

1.Prasanna Developers,                                                ..          )

Through Mrs. Shakuntala Ramdas Sakhare,                  ..          )

S.No. 30, Dapodi Road, Pimple Gurav,                        ..          )

Pune – 27.                                                                   ..          )

                                                                                    ..          )

2. Mr. Pravin Pandurang Waghmode,               ..          )

R/at : S. No. 79/1/1, Near Vaidu Vasti,                        ..          )

Primary School, Pimple Nilakh,                                     ..          )

Pune – 27.                                                                   ..          )… OPPONENT 

 

            For Complainant           :           In person

            For Opponent No.1     :           Advocate Shri. Gandhi

 

Per :  Smt. Sujata Patankar, Member

 

 

 

[1]        The facts giving rise to the complaint briefly stated are as follows :-

 

 

[2]                    On all these grounds as stated above and as specifically stated in the complaint application, the Complainant has prayed as follows :-

 

a)                  Order may be passed against the Opponent to execute the registration of the agreement and give the possession of such flat. The Complainant will ready to give the rest of the amount to the Opponent.

b)                  Order may be passed against the Opponent to pay Rs.25,000/- as the compensation for the mental harassment and inconvenience caused because of the deficiency on the part of the Opponent. 

c)                  Order may be passed against the Opponent to pay Rs.10,000/- for the cost of the proceeding.

d)                  Any other just and proper order may be passed against the Opponent.

 

[3]                    The complaint is supported with the affidavit of the Complainant. Alongwith the complaint application, the Complainant has also filed interim injunction application supported with the affidavit of the Complainant  for not to transfer the disputed flat to third party till the disposal of such suit on merits, or within the pendency of such court proceeding alongwith other reliefs as are already raised in the complaint application supported with the affidavit itself. The Complainant has also filed documents, comprising letters in between the parties, area statement, affidavit, payment receipts for payments made by the Complainant to the Opponent  etc.. 

 

[4]                    In pursuance of the notice of appearance issued by this Forum, the Opponent appeared and filed its say cum written statement supported with affidavit dtd. 6/11/2007 and denied the contentions in the complaint application.  It is also further stated that the Complainant is not a consumer. No contract has been entered into between the Complainant and the Opponent. The Opponent was therefore never liable to render any services to the Complainant. The question of there being any deficiency in the services rendered by the Opponent to the Complainant does not arise. It is the specific contention of the Opponent that the Complainant has not approached this Hon’ble Forum with clean hands and has suppressed material information from this Hon’ble Forum.  Therefore, the Complainant is not entitled to any reliefs from the Hon’ble Forum leave alone the reliefs prayed for. It is also submitted that the Forum is not vested with the jurisdiction to entertain, try and decide the complaint of the Complainant as it stands. It is also further submitted that the Complainant is guilty of severe laches and is not entitled to any reliefs from this Forum under the provisions of the Consumer Protection Act. It is further averred that it is false on the part of the Complainant to state that it was represented to the Complainant that the building would have luxurious amenities and that it was assured by the Opponent that several additional facilities would be provided. It is also denied that the consideration of the flat was agreed to Rs.8,50,000/-. It is submitted that the consideration of the flat which the Complainant was interested in purchasing was agreed at Rs.10,00,000/-. The rate per square foot was at the relevant time agreed at Rs.1,500/-. The area of the flat that the Complainant agreed to purchase was 610 sq.ft. An amount of Rs.90,000/- was agreed to be paid collectively towards MSEB connection and society registration. It is admitted that the Complainant paid an amount of Rs.50,000/- towards booking amount, for which a receipt bearing No. 126 dated 11/10/2006 towards flat No.B-5 has been made over by the Opponent in favour of the Complainant. It is also further submitted that it is false on the part of the Complainant to suggest that the Complainant approached the Opponent with a request to get an agreement registered, and hence the same is specifically denied by the Opponent. It is the contention of the Opponent that the Complainant was repeatedly called upon to get an agreement registered as per the requirement of the Maharashtra Ownership Flats Act. It is also further stated that it is false that the Opponent kept demanding money and avoided registering the agreement.  It is also the contention of the Opponent that it is false on the part of the Complainant to state that till 3^rd May 2007 an amount of Rs.3,05,000/- has been paid by him towards consideration of the flat. It is the contention of the Opponent that the Complainant has paid only an amount of Rs.2,55,000/- to the Opponent so far and not Rs.3,05,000/-.   It is also further stated that the Complainant wanted a letter from the Opponent for the purposes of obtaining loan from a financial institution. The Complainant got the Opponent to execute an affidavit on 30^th April 2007. Since it was a letter required in the standard format by the financial institution concerned, the Opponent bonafide handed over the said letter to sell the flat concerned to the Complainant at the rate prevailing in October 2006 or thereabout. The Opponent was expecting the entire consideration within a reasonable span of time. The Opponent was ever willing to execute necessary documents as per the law.   Despite several reminders and requests the Complainant was shying away from executing the agreement. The Complainant never ever came forward even though he was invited to come over and execute the agreement by the Opponent after the letter he wrote to the Opponent on 25^th June 2007. The Opponent patiently waited for the Complainant to come forward. In the meantime, property rates in Pune rose sharply.  The Opponent finally wrote to the Complainant on 16^th August 2007 to come forward and take back the amounts paid by him to the Opponent. The Opponent also informed the Complainant that otherwise the Complainant would have to pay consideration at the rate prevailing in August 2007, which was Rs.2,500/- per square foot. The Complainant failed to come forward. The complaint filed by the Complainant on his backdrop is false, frivolous and vexatious. It is submitted that the Complainant arrived at the office of the Opponent on 3^rd May 2007 without prior intimation. He expressed his desire to deposit a further instalment of Rs.1,00,000/- out of the total consideration. The Opponent stated to the Complainant that he was ready to get the agreement registered immediately. The stamp duty, registration charges and other miscellaneous charges required for getting the agreement registered were immediately calculated and the Complainant was requested to arrange for the same. However, the Complainant stated that he was carrying no more than a lac of rupees and stated that it was difficult for him to arrange for the above expenses in Pune.   He promised to return with the stamp duty,  registration charges and other charges in the following week. However the Complainant never turned up. It is also further contended that the contents of letter dtd. 25/6/2007 are specifically denied by the Opponent. The Opponent states that the Complainant by filing the present complaint is trying to take disadvantage of his own wrongs. It is also the contention of the Opponent that the Complainant is aware that property rates all over Pune including in Pimple Gurav have shot up beyond proportion within a short span of time.     The moment the Opponent brought to the notice of the Complainant vide his letter dtd.16/8/2007 that he would be refunding the amounts already paid by the Complainant or would charge a higher rate per square foot,  he has approached this Forum. Therefore according to the Opponent, the Complainant has not approached this Hon’ble Forum with clean hands. It is also further stated that the Opponent was and is ready to execute agreement in respect of the flat with the Complainant under the provisions of MOFA. However the rate per square foot for the flat in the area have now shot up to Rs.3,000/- if the Complainant comes forward immediately. On all these grounds and as specifically stated in the written statement, the Opponent prayed that the complaint of the Complainant be dismissed with cost. Alongwith the written statement, the Opponent has also filed documents, comprising letter written by the Opponent to the Complainant dtd.168/2007, UPC slip etc.  

 

[5]                    After filing of the written statement by the Opponent, the Complainant has filed rejoinder supported with affidavit dtd. 23/11/2007. The Complainant thereafter has filed written notes of arguments  alongwith list of citations. The Opponent has also filed written notes of arguments. 

 

[6]                    This Forum has passed order in the present matter on 30/4/2008, in which  this Forum directed the Opponent to pay an amount of Rs.2,55,000/- to the Complainant alongwith interest @9% p.a. from the date of filing of the complaint till its realisation, within 4 weeks from the receipt of copy of this order. 

 

[7]                    The Complainant aggrieved before the Hon’ble State Consumer Disputes Redressal Commission, Mumbai in Appeal bearing No. 816/2008. The Appeal was allowed and impugned order dated 30/4/2008 was set aside and directed that the Forum below shall give opportunity to all the parties to the dispute to file their respective amended pleadings or written versions and also further to give them opportunity to lead evidence. 

 

[8]                    Thereafter, after remanding back the matter from the Hon’ble State Commission,  the Complainant filed amended complaint dtd.6/9/2010 in which all other contents are same as are already raised in the complaint application, except one more additional point is raised i.e. now there is the doubt that the Opponent is going to sale the flat to the third person, hence the Complainant has also filed the injunction application. In the amendment application dtd.6/9/2010  prayed in the prayer clause to execute the registration of the agreement and give the rest of such flat. The Complainant will ready to give the rest of the amount to the Opponent and to pay Rs.2,50,000/- for mental harassment alongwith cost of Rs.10,000/-.,   

 

[9]                    To which, the Opponent No.2 has also filed written statement supported with affidavit, in which it is stated that he has purchased flat No.5, 2^nd floor, Wing-B, in Lakshatara Scheme constructed on the land bearing S. No. 63/3/1, Pimpale Gurav, Taluka Haveli, District Pune, from the Opponent No.1 for a consideration of Rs.17,08,000/-. The Opponent No.1 has executed an agreement to sale in respect of the said flat in favour of the Opponent No.2 on 29/5/2008. The Opponent No.1 then executed and got registered a deed of confirmation dtd. 6/92008 in respect of the said agreement in favour of the Opponent No.2 The deed of confirmation is registered at Sr.no.70392008 with the office of the Sub-Registrar Haveli No.V. It is also submitted that he was put in possession of the said flat on 29/5/2008 and since then residing therein. It is also further submitted that the Opponent No.1 had informed him that there was a complaint filed by the present Complainant in the District Consumer Disputes Redressal Forum, Pune in respect of the sad flat and that same was decided on 30/4/2008. The Opponent No.1 also showed the documents that she has complied with the order dtd.30/4/2008 and has deposited the money with the District Consumer Disputes Redressal Forum, Pune. Hence he agreed to purchased the said flat and completed the sale transaction. The Opponent No. 2 also further submitted that he is a bonafide purchaser for value without notice. The Opponent No.2 has paid full consideration to the Opponent No.1. Therefore on all these grounds and as stated in the written statement, the Opponent No.2 has prayed for dismissing the complaint with compensatory costs.     

 

[10]                       Further, the Complainant again filed amendment application dtd. 15/11/2010 supported with affidavit.  The Complainant also carried out the amendment accordingly in the original complaint application. The Complainant submitted that initially the Complainant was residing at Shirur in the rental premises with effect from October 2006 up to May 2009. the Complainant was required to pay an amount of Rs. 2,500/- p.m. as and by way of rent. As such, because of the deficiency in service on the part of the Opponent No.1, the Complainant was required to suffer financial losses as and by way of payment of rent of Rs.2,500/- p.m. which the Opponent No.1 is liable to pay with effect from July 2007 since the Opponent No.1 started giving possession of the flats to the flat purchasers. Hence the Opponent No. 1 is liable to pay Rs.60,000/- being rent from July 2007 to May 2009. The Complainant also further stated that thereafter with effect from June 2005, he shifted to Pune. Since 2007, the Complainant alongwth his family is residing in the rental premises by paying rent of Rs.4,000/- . As such, because of the Opponent No.1 the Complainant is required to suffer financial loss of Rs.4,000/- p.m. with effect from June, 2009 and ill the actual payment of the amount of compensation by the Opponent No.1 to the Complainant till filing of application for amendment. The Opponent No. 1 is liable to pay Rs.48,000/- being rent for April-09 to May-2010. It is also further submitted that he is entitled for the compensation from the Opponent No. 1 on account of financial loss because of the difference in cost of the flat as on the date of booking of the flat till this date. The Complainant also stated that now the value of the property has gone up because of which it is practically not possible for the Complainant to raise such huge funds and purchase the property in the said area where the disputed flat is situated. It is a matter of fact that at the time when the disputed flat was booked by the Complainant with the Opponent No. 1, it was booked at the rate of Rs.1,500/- per sq.ft. whereas the rate which is prevailing today in the said area is Rs. 3,500/- per sq.ft. Thus because of the Opponent No.1, the Complainant has los the opportunity to have his own flat in the said area and ultimately the Complainant has suffered financial  losses because of difference in the rate. Hence the Opponent No.1 is liable to pay the said cost difference to the Complainant, which is Rs.12,20,000/-.  According to the Complainant, as the Opponent No.1 has illegally and unlawfully sold the said disputed flat to the Opponent No.2 with a view to defeat the legal rights of the present Complainant, hence the Opponent No.1 is also liable to pay an amount of Rs.1,00,000/- as and by way of compensation towards mental pain, harassment and agony. In addition to that the Opponent No.1 is also liable to pay an amount of Rs.50,000/- as and by way of expenses and cost which the Complainant is required to incur in prosecuting the present complaint as well as appeal before the Hon’ble State Consumer Forum and also for attending the matter before the Court thereby incurring the expenses . It is also further stated that originally the Opponent No. 1 has denied of having received an amount of Rs.50,000/- which he has paid by way Demand Draft dated 24/2/2007 to the husband of the Proprietor of the Opponent No.1 firm. It is a matter of record that even though the business of the Opponent No.1 is being run in the name of Shamuntala Sakhare, but the management and day-to-day affairs are looked after by her husband namely Ramdas Sakhare and therefore, it was represented by the Opponent No.1 to issue the said Demand Draft in the name of Ramdas Sakhare. Even the receipts which have been produced on record bears the signatures of Ramdas Sakhare. As such the amount of Rs.50,000/- paid by the Complainant in the name of Ramdas Sakhare was received by him for and on behalf of the Opponent No.1. Hence the Opponent No.1 is liable to refund the same alongwith the interest @ 18% p.a. to the present Complainant. It is also the case of the Complainant that the Opponent No.2 is n illegal and unlawful possession of the disputed flat. There is a collusion between the Opponent No.1 and 2 to defeat the legal rights of the Complainant. Hence the Opponent No. 2 has no separate and independent right in the disputed flat. As such, the Complainant is entitled for transfer of ownership rights in the said flat by way of registered documents from the Opponents No. 1 and 2 also. 

Particualrs of claim :-

 

1. Rs. 60,000/-             :           Towards financial loss mentioned in para 4 (b)

2. Rs. 48,000/-             :           Towards financial loss mentioned in para 4 ( c )

3. Rs.1,00,000/-           :           Towards mental pain and agony mentioned in para 4 (e)

4. Rs. 50,000/-             :           Towards expenses and cost as mentioned in para 4 (e)

----------------------

Rs.2,58,000/-               :           Total

----------------------

 

[11]                  Therefore, it is necessary to carry out the amendment in prayer clause i.e. in para 7 of the complaint by deleting the prayer clause ( A ) to ( C ) and by replacing the same with the following prayers.

 

A)                The Opponent Nos.1 and 2 may kindly be directed to execute the registered document in respect of the disputed flat in favour of the Complainant and the Opponents No. 1 and 2 be further directed to handover the vacant and peaceful possession of the flat to the Complainant.

B)                 Alternatively if this Hon’ble Court comes to the conclusion, that the said flat cannot be given to the Complainant then the Opponent No.1 may kindly be directed to pay the compensation of the amount of Rs.12,20,000/- to the Complainant and the Opponent No.1 be directed to refund amount of consideration of Rs.3,05,000/- alongwith interest of 18% p.a. from date of payment till actual realization.

C)                The Opponent No. 2 may kindly be directed to pay an amount of Rs.2,58,000/- as mentioned in particulars of claim. 

D)                If this Hon’ble Court deems fit then the Complainant is ready to accept the alternative flat in the same building or in the project of ownership flat scheme of the Opponent No.1 in the same area where the disputed flat is located, on same rate and consideration as was at the time o booking of the disputed flat.

E)                 Any other just and equitable orders in the interest of justice may kindly be passed.  

 

[12]                  To which the say is filed by the Opponent No.1 on 02/2/2011 stated that the Complainant under the garb of amendment is trying to make out a totally different and an entirely new case against this Opponent. The same is not permissible under the law. On this count, the application deserves to be rejected. It is also further stated that the Complainant is trying to rectify all the lacunae / plug all loopholes that were left in his pleadings. It is also the opinion of the Opponent that the Complainant is clearly misinterpreting the order passed by the Hon’ble State Commission on 1/2/2010. A bare perusal of the application under reply would reveal that it is a clear case of twisting the order to suit his own convenience. As per the provisions of the Consumer Protection Act, 1986 Forums have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 while trying a suit in respect of the matter set out in sub-clauses (i) to (vi) of Section 13 (4) only. As such this Hon’ble Forum is not vested with the jurisdiction to entertain, try and decide the present application. The say is supported with affidavit.   

 

[13]                  The Opponent No.2  has also filed say dtd. 11/1/2011 to the amendment, in which alongwith other contentions the Opponent has submitted that the Complainant is trying to raise a totally new case. The original complaint was for possession of the flat. By preferring the present amendment application, the Complainant is trying to seek huge compensation. Thus it will change in the nature of the complaint. It is also further submitted that this Forum  has powers restricted to Sec. 13 of the C.P. Act. Under such circumstances, this Forum does not have the jurisdiction to try, entertain and adjudicate such amendment application as sought by the Complainant. It is also objected that the Complainant in para No. 4 of the application under reply says that he wants to add para No. 4 (a) to 4 (g) by way of amendment. However perusal of para 4 would show that the Complainant is trying to add para No. 4 (a) to 4 ( i ) in the complaint. Thus the application under reply itself is defective. Therefore it is prayed that the application be dismissed with cost etc..    The say is also supported with affidavit.  

            

[14]                  This Forum passed order on 4/2/2011, by which the application for amendment dtd. 15/11/2010 of the Complainant is allowed for the reasons mentioned in the order. 

 

[15]                  Thereafter the Complainant has filed amended plaint alongwith affidavit. On 17/2/2011, the Complainant filed list of documents, comprising the public notice published in newspaper “Punnyanagari” dtd. 21/12/2007 for not to create any third party interest in the disputed flat, confirmation deed dtd. 6/9/2008 in between M/s. Prasanna Developers and Mr. Pravinkumar Pandurang Waghmode and Agreement to Sale dtd.29/5/2008. 

 

[16]                  After the order passed by this Forum on 4/2/2011, the Opponent No.1 has also filed additional written version supported with affidavit  alongwith other contentions as are already raised in the say to amendment application submitted that as per the order dtd. 30/4/2008 of the Hon’ble Forum, the Opponent deposited with this Forum the amount of Rs.2,69,650/- as also immediately informed by registered post A.D. letter dtd.14/5/2008 to the Complainant about the same. Thereafter an agreement to sale in respect of the disputed flat was executed with the Opponent No.2 on 29/5/2008.   The Complainant under the garb of amendment has come out with a entirely new case. It is also submitted that the Complainant is trying to take disadvantage of his own laches. According to the Opponent No.1 certain reliefs are hopelessly time barred have been sought to be inserted by way of amendment. It is the contention of the Opponent No.1 that the amendment is beyond the scope of the order of the Hon’ble State Commission. According to the Opponent No.1 it is absolutely false on the part of the Complainant to allege that she has sold the disputed flat to the Opponent No.2 illegally and unlawfully, that too during the pendency of the present complaint.    It is the specific contention of the Opponent No.1 that when the said flat was sold by her to the Opponent No.2, neither the present complaint was pending nor was there any order against this Opponent preventing it from selling the flat to anybody else. It is the submission of the Opponent No.1 that as per order dtd. 30/4/2008, on or about 12/5/2008, the Opponent No.1 deposited with the Registrar of this Forum an amount of Rs.2,69,500/-. It is admitted that an agreement to sale in respect of the disputed flat was executed with the Opponent No.2 on 29/5/2008. The allegation that there is  a collusion between the Opponent No.1 and the Opponent No.2 is false. It is the specific contention of the Opponent No.1 that the Complainant had no intentions to purchase the flat in question. The Complainant despite repeated requests on the part of the Opponent, never came forward to get the agreement executed as required under the law. No agreement as required under the Maharashtra Ownership Flats Act came into being between the Complainant and the Opponent, therefore without a contract as required under the law and further without receiving the consideration it was not binding upon this Opponent to handover possession to the Complainant. It is also further contended that the Complainant despite repeated requests on the part of the Opponent never came forward to get the agreement executed as required under the law. No agreement as required under the Maharashtra Ownership Flats Act came into being between the Complainant and the Opponent. Without there being a contract as required under the law and further without receiving the consideration it was not binding upon the Opponent to handover possession to the Complainant. It is also further submitted that the allegation of the Complainant regarding rental premises   is not admitted. Not a single document in support of the said allegations has been placed on the record. It is also submitted that the Complainant is not at all entitled for compensation from the Opponent.   It is also submitted that the Opponent on numerous occasions called upon the Complainant to come forward and execute agreement as required under the Provisions of the Maharashtra Ownership Flats Act, 1963. Despite this, for reasons best known, the Complainant never came forward with the requisite stamp duty and registration charges so as to enable the Opponent to go ahead with the registration of the agreement. It is also submitted that the Complainant is not at all entitled to an amount of Rs.12,20,000/-. The claim for Rs.50,000/- as and by way of expenses and cost is absolutely false, frivolous and fictitious hence specifically denied by he Opponent. It is also averred that the amendment is not only illegal but also amounts to contempt of the order of the Forum. The reliefs being claimed by the Complainant are all hopelessly barred by limitation and dismissed with costs.   

           

[17]                  After the order passed by this Forum on 4/2/2011, the Opponent No.2 filed additional written statement dtd.7/3/2011 and stated that the Opponent No.2 has paid full consideration to the Opponent No.1 which she has duly acknowledged by executing the agreement to sale dtd. 29/5/2008. It is also the contention of the Opponent No.2 that he was put in possession of the said flat on 29/5/2008 and since then he is residing therein. It is also denied by the Opponent No.2 that there is a collusion between the Opponent No.1 and 2 with a view to defeat the legal rights of the Complainant and   denied all other allegations in para No. 4 (a) to 4 (g). It is further submitted that the Complainant is not entitled to seek any reliefs against the Opponent No.2 and as such the complaint is not maintainable against the Opponent No.2. The Complainant has no right to seek any right, title or interest in the suit flat etc.. Further it is also the contention of the Opponent No.2 that the Complainant is not entitled to seek the possession of the suit flat from the Opponent No.2. The Opponent No.2 is not liable to pay any amount of Rs. 2,58,000/- to the Complainant. Hence on all these grounds and as stated specifically in the additional written statement, the Opponent No.2 has prayed for dismissing the complaint with compensatory costs. The Opponent No. 2 has also filed separate affidavit in support of the additional written statement. 

 

[18]                  Thereafter the Complainant filed affidavit to the reply to additional written version filed by the Opponent No.1 supported with affidavit. The contentions of the additional written version about the new case made out by the Complainant is denied and the Complainant is stick up with the case of deficiency on the part of the Opponent No.1. It is further submitted that the Opponent’s contention about the bonafide purchaser is not true and correct because the Opponent No.2 purchased the said flat without notice. Afterwards, the Complainant filed written notes of arguments alongwith citations.   As also the Opponent Nos. 1 and 2 filed written notes of arguments. The Opponent No.1 filed citations.        

 

[19]                  Taking into consideration, the complaint, say, documents on the record and the written notes of arguments and oral submissions advanced by the parties, the following points arose for our consideration :

                        Points                                                                                  Answers

1)   Whether the Opponent No. 1 has rendered deficiency

       in service to the Complainant?                                                        …      Yes.

2)   What order?                                                                       … As per final order.

 

[20]                  Point No.1(i):-            On perusal of the complaint application and entire proceedings on the record, it is evident that the Complainant has paid amount of Rs.50,000/- by pay order  in the name of Mr. Ramdas L. Sakhare to the Opponent  dtd.24/2/2007, which is produced at exh. 8. The Complainant has also produced                                                                                                                                                                                                        receipt dt. 3/5/2007, for receipt of amount of Rs.1,00,000/-, which shows that the amount of Rs.1,00,000/- received  by Mr. Sakhare R.L. as also one more receipt dtd. 9/10/2006 for receipt of amount of Rs.5,000/-at Exh.9, is produced on the record. Thereafter two receipts bearing Nos. 126, 128 dtd.11/10/2006, 19/10/2006 signed by Sakhare R.L. for receiving the amounts. The receipt bearing No. 130 dtd. 1/11/2006  for receipt of amount of Rs.50,000/- signed by Mrs. S.S. Sakhare is produced on the record for receiving an amount.  Thus by all these receipts it is crystal clear that the Complainant has paid in all the amount of Rs.3,05,000/- to the Opponent towards the consideration of the flat bearing No.S-5 in Wing B on the second floor in the building known as Laksha Tara situated at Pimple Gurav S.No. 63/3/1, Plot A, Pune-27. However the Opponent No.1 has accepted in their written statement for receipt of the amount of Rs.2,55,000/- only and not Rs. 3,05,000/-. In our opinion, as stated above, the Complainant has produced on the record sufficient cogent evidence for payment of Rs.3,05,000/- to the Opponent No.1, by which it is adequately proved that the Complainant has paid the amount of Rs.3,05,000/- to the Opponent No.1. Therefore according to us, the Complainant is a “consumer” of the Opponent No.1.                   

 

[21]                  In the present complaint, the registered agreement is not executed by the Opponent No.1 in favor of the Complainant. In the present case, the agreed consideration of disputed flat is Rs.8,50,000/- as per letter dtd.3/5/2007 sent by the Opponent No.1 to The Manager, State Bank Of India, Aundh, Pune.  Out of which, the Complainant has paid amount of Rs.3,05,000/- as per cogent documentary evidence i.e. receipts, which means, more than 35% amount has been paid by the Complainant to the Opponent No.1. After receiving the amount of Rs.3,05,000/- from the Complainant, the Opponent No. failed to execute the agreement and therefore, the Complainant sent a letter dtd. 25/6/2007 in which it is contended as follows :-

“मी रु.3,05,000/- (अक्षरी रुपये तीन लाख पाच हजार फक्‍त) दिलेले असून सदर रकमेच्‍या पावत्‍या तुम्‍ही मला समक्ष दिलेल्‍या असून सदर फलॅट नं.5 मला देणेबाबत दि.30/04/2007 रोजी नोटरीसमोर प्रतिज्ञापत्र तयार करुन दिलेले आहे .

वास्‍तविक तुमचेकडे फलॅटचे किंमतीपैकी रुपये 305000/- एवढी मोठी रक्‍कम मी आपणाकडे जमा केलेली असून तुम्‍ही सदर फलॅटचे अॅग्रीमेंट करणे अपेक्षित होते परंतू मी आपणाकडे वारंवार करार करणेबाबत विनंती केली परंतू तुम्‍ही सदर अॅग्रीमेंट करुन देणेबाबत काहीच प्रतिसाद दिलेला नाही.

तरी तुम्‍हांला या नोटिशीने कळविण्‍यात येते कि, तुम्‍हास ही नोटीस मिळाल्‍यापासून 15 दिवसात तुम्‍ही मला सदर फलॅटचे रितसर अॅग्रीमेंट करुन द्यावे.“

 

This letter is not denied by the Opponent, as also, the Opponent did not reply to this letter.    Moreover, by affidavit dtd.30/4/2007, the Opponent No.1 alongwith other contentions stated as follows :-

 

 

[22]                  It means that the Opponent No.1 himself has given assurance to the Complainant about agreement, mortgage, possession of the disputed flat but failed to do so.         

 

[23]                  As also after perusal of the letter dtd.3/5/2007 sent by the Opponent to The Manager, State  Bank Of India, Aundh, Pune-411 007, the relevant contents of which are as follows :-

 

 

 

[24]         The Opponent himself sent a letter to the State Bank Of India, in which, he himself admitted that the total cost of the flat/house is Rs.8,50,000/-.

 

            It also appears that in the letter dtd.16/8/2007 sent by the Opponent No.1 to the Complainant after two months of receipt of the letter sent by the Complainant as follows ;-

 

“वारंवार विनंती करुनसुध्‍दा आपण अॅग्रीमेंट नोंदवण्‍यासाठी पुढे येत नाही. असे लक्षात येते तरी हे पत्र मिळताच आठ दिवसांचे आत आपण वर नमुद केल्‍याप्रमाणे आम्‍हांस दिलेले पैसे परत घेऊन जावेत. अन्‍यथा वाढीव रुपये 2500/- प्रति स्‍क्‍वेअर फुट प्रमाणे दर द्यावा लागेल.” 

 

[25]                  It is evident on perusal of the receipt of U.P.C. at Exh. 17 that this letter is sent by the Opponent to the Complainant by U.P.C. However it cannot be presumed that the said letter is received by the Complainant. The case of the Complainant primafacie appears for registration of the agreement, possession of the flat and not for escalation of price of the flat. Whenever the Opponent came with the case that the Opponent sent letter to the Complainant for escalation of the price of the disputed flat,  there is no contention of the Opponent for the cancellation of agreement or notice of termination in the said letter.   Without cancellation of the agreement or notice of termination, the Opponent No.1 executed the agreement with the Opponent No.2, which amounts to deficiency in service.

   

[26]                  It is the contention of the Opponent No.1 that the consideration of the flat which the Complainant was interested in purchasing was agreed at Rs.10,00,000/- The rate per square foot was at the relevant time agreed at Rs.1,500/-. The area of the flat that the Complainant agreed to purchase was 610 sq.ft.. An amount of Rs.90,000/- was agreed to be paid collectively towards MSEB connection and society registration. In the written statement the Opponent No.1 also demanded the rate per square foot for the flat in the area shot up to Rs. 3,000/-. As against this, it is seen that the Complainant sent letter dtd.25/6/2007 to the Opponent No.1 for execution of the agreement, which is produced at Exh.3 on the record. Taking into consideration these facts we are of the view that the contentions of the Opponent No.1 about escalation of price are baseless on the ground of letter sent by the Opponent No.1 himself to the State Bank Of India, which shows that the total consideration of the disputed flat is Rs. 8,50,000/-. Even after receiving the amount of Rs.3,05,000/- from the Complainant, the Opponent failed to execute the agreement with the Complainant. In addition to that the Opponent failed to show the satisfactory reason for non-execution of the agreement with the Complainant. It  means that the Opponent himself failed to perform his part of performance amounts to deficiency in service.  

       

[27]                  Against the order of this Forum dtd.30/4/2008 in Complaint No. APDF/149/2007, the Complainant filed Appeal bearing No. I.R.No. 1111/2008 in A/816/2008 before the Hon’ble State Consumer Disputes Redressal Commission, Maharashtra, Mumbai,  in which ad-interim relief is granted, the order dtd.11/6/2008  is placed on the  record. The contents of which are as follows :-

 

 

[28]                  At the time of oral arguments, the Complainant noticed our attention to the date on stamp-paper of agreement to Sale, which is dtd.11/3/2008. The Opponent No.2 purchased the stamp-paper before the order of the Additional District Consumer Disputes Redressal Forum, Pune in complaint No. APDF/149/2007 and the Opponent No.1 did not whisper on this ground in their written statement as also at the time of arguments. It means that the Opponent received the amount of Rs.3,05,000/- from the Complainant and not executed the agreement till filing of this complaint and thereafter also. Moreover the Opponent No.1 decided to sale the disputed flat to the Opponent No.2 and therefore the Opponent No.2 purchased the stamp-paper for Agreement to Sale on 11/3/2008. Therefore, with the apprehension for non-execution of the agreement of the disputed flat from the Opponent No.1, the Complainant initiated proper steps and filed interim application bearing No. I.R.No. 1111/2008. Hence the Hon’ble State Commission granted ad-interim relief, restraining the respondent/builder from creating third party interest in respect of the flat booked by the appellant/org. complainant.   It is crystal clear that the Complainant wants to execute the agreement and is interested in possession of the disputed flat.   It shows that the Opponent failed to do their part for execution of the agreement and also possession of the disputed flat. On the contrary by executing the agreement with third person without any cancellation notice to the Complainant amounts to unfair trade practice in the eyes of law.   

 

[29]                 The Complainant filed documents on the record at Exh. 40 for application for production of documents and at Exh. 41 the list of documents such as, Agreement to Sale dtd. 29/5/2008, public notice published in Punnyanagari and confirmation deed.  By which it is crystal clear that the Complainant has extensively and authentically persuaded the matter since beginning for possession of the flat and regarding execution of the agreement.                               

 

[30]                  The order dtd.1/2/2010 in the appeal bearing No.816/2008 passed by the Hon’ble State Consumer Disputes Redressal commission, Maharashtra, Mumbai reveals as follows :-

  

(i)                  “Appeal is allowed and impugned order dtd.30/4/2008 is set aside.

(ii)                The consumer complaint is remanded back to Forum below in the light of the observations made in the body of the order.

(iii)               Forum below shall give opportunity to all the parties to the dispute to file their respective amended pleadings or written versions and also further to give them opportunity to lead evidence U/Sec. 13 of the Consumer Protection Act, 1986 and thereafter settle the dispute according to law…………………………”

          

[31]                  Therefore it is observed that the order passed by this Hon’ble Forum dtd.30/4/2008 is set aside.   In addition to that an opportunity is given to all the parties to the dispute to file their respective amended pleadings or written versions and also further opportunity to lead evidence U/Sec. 13 of the Consumer Protection Act, 1986.  Therefore even though the Opponent has raised the contention that they deposited the amount with the office of this Forum have no any legal significance.  Hence this would not be considerable  in the eyes of law.

 

[32]                  Turning to the amended portion in the complaint application and written statements, it is observed that after remand of the matter, the Complainant filed two amendment applications, one for not to create third party interest and another for inserting para No. 4 (a) to 4 ( i ) in the main complaint application. To which, as discussed in the aforesaid paras, this Forum passed order on 4/2/2011, by which the application for amendment is allowed for the reasons mentioned in the order. 

 

[33]                  Therefore now we have to taken into consideration the following points alongwith the deficiency in service.

 

(a)                Whether the Opponent No.1 has illegally and unlawfully sold the disputed flat to the Opponent No.2 ?

(b)               Whether the Opponent No.1 is liable to pay the cost difference to the Complainant amounting to Rs.12,20,000/-?

(c)                Whether the Opponent No.1 is liable to pay an amount of Rs.1,00,000/- by way of compensation towards mental pain, harassment and agony. In addition to that whether the Opponent No. 1 is liable to pay an amount of Rs.50,000/- by way of expenses and cost which the Complainant is required to incur in prosecuting the present complaint as well as appeal before the Hon’ble State Consumer Forum etc..

 

[34]                  In the present case, it is evident that the Opponent No.1 received the amount of Rs.3,05,000/- from the Complainant and executed the Agreement to Sale on 29/5/2008 with the Opponent No.2 for allotment of Flat No. 5 on the second floor, admeasuring area 610 sq.ft. i.e. 56.69 sq.mtrs. (built up) in Wing B in the building known as Laksha Tara for the price of Rs.17,08,000/-. As also executed the Confirmation Deed on 6/9/2008 with the Opponent No.2 which is produced at Exh.41/1. The Opponent No.1 in their additional written version themselves admitted that the Opponent No.2 was put in possession of the disputed flat  on 29/5/2008. However in this respect, we opined that because for non execution of the agreement to sale by the Opponent No.1 in favour of the Complainant, the Complainant did not seek loan from financial institution. It means that the Opponent himself is liable for non receipt of entire consideration due to his own acts.     

 

[35]                  It is pertinent to note in the present matter that since filing of the complaint application itself the Complainant has filed injunction application alongwith list of documents for not to create third party interest. Therefore in our opinion, the Complainant initially only has raised the issue for not to create third party interest. As also the important aspect in the present case is that the Hon’ble Consumer Disputes Redressal Commission, Maharashtra State, Mumbai by setting aside order dtd.30/4/2008 of this Forum below shall give opportunity to all the parties to the dispute to file their respective amended pleadings or written versions and also further to give them opportunity to lead evidence. Taking into consideration the order of the Hon’ble State Consumer Disputes Redressal Commission, Mumbai, this Forum allowed the amendment applications filed by the Complainant by order. Hence taking into consideration the facts, present circumstances and   documentary evidence on the record, we opined that the Complainant paid the amount of Rs.3,05,000/- to the Opponent in the year 2007 and filed the case for possession of the flat and execution of agreement in the year 2007 after decision of Hon’ble District Forum, the Complainant filed appeal against the order of the District Forum in the year 2008, the matter is remanded back in the year 2010 below order dtd. 1/2/2010. Meanwhile, the Opponent No.1 executed the Agreement to Sale with the Opponent No.2 in the year 2008 without any notice sent to the Complainant, it amounts to deficiency in service and therefore, the Opponent No.1 is liable to pay Rs. 3,05,000/- alongwith  interest  as well as for escalations of prices  and also for compensation.   The Hon’ble Supreme Court in the matter of Ghaziabad Development Authority v/s.  Balbir Singh, II (2004) CPJ 12 (SC) in which it is stated as follows :-

           

 

[36]                  As also relying upon the judgment of Hon’ble National Commission in the matter of Ram Saroop V/s. Chandigarh Housing Board,  III (2008) CPJ 211 (NC) the case ratio in brief is as under :

 

                        Allotment – Cancellation without notice – Allotment terms governed by certain provisions of law – Cancellation of site without issuing notice amounts to deficiency in service – Complainant carried out construction on allotted site, obtained water connection, dispossessed by third party – Deficiency in service alleged – Complaint dismissed by State Commission –Order set aside in appeal – Cancellation of allotment illegal – Allotment of alternative site directed – Compensation of Rs. 4 lakh along with exemplary cost of Rs.1,00,000/- awarded – Directions given. 

 

[37]                  Relying on the aforesaid judgments of Apex Courts and the case ratio, in our opinion, as per the Agreement to Sale, the Opponent No.2 has paid the amount of Rs.17,08,000/- to the Opponent No.1 for the consideration of the disputed flat. Therefore even though after deducting the amount of Rs.3,05,000/- from the amount of Rs. 17,08,000/- comes to Rs.14,03,000/-, the Complainant demanded only Rs.12,20,000/-. Hence as per demand of the Complainant, the Complainant  is liable to recover the amount of Rs.12,20,000/- only towards escalation of the price, within the stipulated period mentioned in the order, failing which, the Opponent No.1 will be liable to pay interest alongwith interest @9% p.a. from the date of receipt of the order till realization thereof.  

  

[38]                  On perusal of the documents on the record, it is evident that the Complainant has paid Rs. 3,05,000/- to the Opponent No.1 in the year 2007 and this amount is retained with the Opponent till today. The Complainant could not get the benefits of Rs.3,05,000,  and therefore, the Complainant is sustained economical loss. Hence, the Complainant is entitled to recover the amount of Rs.3,05,000/- from the date of letter dtd.25/6/2007 alongwith interest thereon @ 18% p.a. till realization thereof.    The Complainant filed this complaint for the execution of the agreement and for the possession of the flat. Therefore the Complainant sustained cost of proceedings and also he suffered mental and physical harassment for attending court matter in the Hon’ble District Forum as also in the Hon’ble State Commission for four years. Because of the wrongful acts on the part of the Opponent No.1, the Complainant sustained inconvenience and therefore, the Complainant is entitled to recover   the amount of Rs. 50,000/- as a compensation and Rs. 15,000/- towards cost of the proceedings.   

           

[39]                  The Complainant has prayed the rent amounting to Rs.60,000/- from July 2007 to May 2009 as also the Complainant has prayed for recovery of the  rent amount of Rs.48,000/- from April 2009 to May 2010 from the Opponent No.1.    A scrutiny of the entire proceedings shows that there were no receipts produced by the Complainant for making payment of rent, without which it cannot be possible for grant such relief. Hence it is not considerable.    

                                                 

[40]                  There is no privity of the contract in between the Complainant and the Opponent No. 2 under the provisions of Consumer Protection Act, 1986, hence the Complainant is not a consumer of the Opponent No.2. As such, no orders would be passed against the Opponent No.2 in the present proceeding.   

 

[41]                  On 16/11/2011, the Complainant noticed and put before us the contention that the Opponent No. 2 has not paid the amount of rupees 500/- as per order on Exh. 54 dtd. 15/7/2011. Therefore, the matter is kept for order today itself. Today, i.e. on 18/11/2011, the Opponent No.2 and his Advocate remained absent, hence the Opponent No.2 is hereby directed to pay the cost of Rs.500/- to the Complainant within a stipulated period of thirty days.     

      

[42]                  The Opponent No.1 has filed citations but the case ratio is different from the present case. Therefore with the aforesaid discussion and relying upon the judgements of  Ram Saroop V/s. Chandigarh Housing Board,  III (2008) CPJ 211 (NC) and  Ghaziabad Development Authority v/s.  Balbir Singh,  II (2004) CPJ 12 (SC), we proceed to pass the following order :-

 

 (1)    The complaint is partly allowed.

 

(2)       The Opponent No.1 is hereby directed to      

 pay Rs.3,05,000/- (Rs. Three Lacs. Five

Thousand Only) to the Complainant alongwith interest thereon @18% p.a. from 25/06/2007 till its  realization.  

                       

    (3)    The Opponent No.1 is hereby directed

            to pay to the Complainant Rs.12,20,000/-

(Rs. Twelve Lacs. Twenty Thousand Only)

towards escalation of the price, within the

stipulated period failing which, the Opponent

No.1 will be liable to pay alongwith interest

thereon @9% p.a. from the date of receipt of

the order.  

  

 (4)   The Opponent No.1 is hereby directed to 

pay    Rs.50,000/- (Rs. Fifty Thousand Only)  by    way   of      compensation and Rs.15,000/- (Rs. Fifteen Thousand Only) as cost                of litigation to the Complainant.

 

 

(5)   The Opponent No.2 is hereby directed to pay to the Complainant Rs.500/- towards the cost as per order on Exh. 54 dtd. 15/7/2011. 

 

(6)   The Opponents No.1 & 2 are directed to comply the   abovementioned order         within       a   period of       (30)   days from the date of receipt of this order.    

                       

(7)   Certified copies of this order be furnished to the   Complainant   and   the Opponents free of costs.

 

 

 

 (Smt. Sujata Patankar)                                               (Smt. Pranali Sawant)

          MEMEBR                                                                PRESIDE NT

 

ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PUNE.

 

Place : Pune                                                    

 

Date : 18/11/2011