DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, LUCKNOW
CASE No.517 of 2005
1. Sri C.B. Jaiswal, aged about 71 yrs.,
S/o Sri Ramdeen Shah,
R/o 2/166, Vikas Nagar,
Lucknow.
2. Smt. Sharda Jaiswal, aged about 68 yrs.,
W/o Sri C.B. Jaiswal,
R/o 2/166, Vikas Nagar,
Lucknow. ……Complainants
Versus
1. Smt. Pushpa Saini, aged about 54 yrs.,
W/o Illamchand,
2. Illamchand, aged about 60 yrs.
Through Pushpa Apartments,
Sector-2, Vikas Nagar, Lucknow.
.......Opp. Parties
Present:-
Sri Vijai Varma, President.
Smt. Anju Awasthi, Member.
Sri Rajarshi Shukla, Member.
JUDGMENT
This complaint has been filed by the Complainants against the OPs for directing the OPs to get the sale deed of the flats in question executed after completion of the shortcomings and for compensation etc.
The case in brief of the Complainants is that the OPs were constructing residential complex “Pushpa Apartments” in Vikas Nagar. The Complainants decided to purchase flat No.107 and 108 at the cost of Rs.6,80,000.00 per flat. Even though Rs.50,000.00 for each flat was to be given as booking amount but on the saying of OP No.1 that funds are required for completing the flats expeditiously, the Complainant No.1 on 10.03.2005 issued two cheques for Rs.1,75,000.000 and
Rs.1,50,000.00. OP No.2 had assured that shortcomings in the flats would be made up and so many other things such as a door to be opened between the two flats etc., detailed in the complaint, were also to be done by the OPs. After completion of the entire work the sale deed was to be executed by 31.05.2005 but the Complainant No.1 had expressed about getting the sale deed executed of flat No.107 by March-April, 2005 and for the purposes the Complainants had purchased stamps for Rs.40,000.00 on 23.03.2005 but the OP No.2 stated that there is shortage of labours, hence sale deed may be executed and the remaining work will be completed thereafter but the Complainant No.1 did not agree as he wanted to avoid disputes. On seeing that there was no possibility of work being completed before 15th May the Complainant No.1 put Rs.8,50,000.00 out of Rs.9,51,000.00 deposited in his bank as FD on 12th April for a month with the intention that whenever the amount will be required it would be prematurely taken. Since the OP No.1 was pressurising for getting the sale deed executed before the completion of the work and was insisting upon for further payments, hence on 10th May a cheque for Rs.50,000.00 was again given but the work was still not completed by OP No.1, though certain work was done. The OP No.2 had stated that the entire work will be completed by 15th June when the sale deed will be executed as there was the news for service tax being imposed on the builders. The Complainants thereafter purchased stamp papers for Rs.21,500.00 on 13.06.2006 but the work was not completed by OP No.2 and the OPs kept harping for executing the sale deed. The OP No.2 had taken rupees for annexing a map prepared by architect to be annexed with the sale deed but there were many shortcomings found in the map. At the time of purchase of flats the covered area was disclosed as 740 sq. ft. @ Rs.1,000 sq. ft. and Rs.10,000 for the purposes of transformer and ultimately the entire amount was agreed at
Rs.6,80,000.00 per flat. The area of the flats was to be 1480 sq. ft. i.e. 137.5 sq. mt. but as per the map 107 sq. mt. only, hence the OPs are entitled to get the less cost on the basis of less covered area. The OPs asked the Complainant to deposit post dated cheques as security with them and after completion of the work completed by 26-27th June the cheque for Rs.2,85,000.00 will be encashed and cheque for Rs.7,00,000.00 will be returned and taking cash of the same amount at the time of the execution of the sale deed. On these conditions two cheques No.222855 and 222856 were given to OP No.1. Thereafter Sri Anurag, brother of Beenu Shukla to whom the OPs had said to take the flat No.107 of Complainants on rent, a rent agreement was signed and as the electricity and water was to be provided by the OPs, hence it was written in the rent agreement that the water and electricity shall be aranged by the tenants. Thereafter OPs and their sons sent Sri Yadav for giving flat No.108 on rent to Sri Kamal Rastogi but as the shortcomings of flat were not completed, hence he refused to take the flat on rent. On 26th June the luggage of Beenu Shukla arrived but on 27th June the tenant and his wife told that as the electricity supply was being stopped as the registry of the flat has not been done after the payment of entire cost, hence electricity shall be stopped, hence they shifted to some other flat. Since it was the duty of the OPs to supply electricity, having taken the amount for transformer, hence it was a deficiency in service on the part of the OPs. The OPs on 28th June got cheque for Rs.2,85,000.00 encashed and thereafter stopped the work completely. On 30th June when Complainant No.1 met the sons of the OPs told that as there was a leakage at many places in the room, hence paint cannot be done. Since the OPs knew that there was a leakage in the pipeline and after the line being operational the leakage would be exposed, hence right from the beginning OPs wanted to get the sale deed executed on false assurances and wanted to take the entire amount of the flat without getting the entire
work done. The act of the OPs in getting the cheques encashed on the basis of false assurances the OPs have committed serious deficiency in service and also unfair trade practice. There was still so many shortcomings in the house which are detailed in the complaint to be completed by the OPs and they have refused to do any further work. The flat could have been given on rent on Rs.3,500.00 per month, hence this complaint for directing the OPs to get the sale deed executed after completion of the shortcomings and for compensation of Rs.2,500.00 in case the power points of the electricity of bad quality are not changed, the map be corrected or Rs.1,000.00 taken for it be returned with interest and after completion of the entire work 18% interest be given from the date of amount deposited and stamps purchased till the date of the possession and Rs.7,000.00 per month the loss of rent also be awarded to them. Besides Rs.4.00 lakhs as compensation for the harassment caused on the basis of not completing the entire work Rs.50,000.00 being given as compensation for stopping the electricity supply to the tenants and causing agony to the Complainants and 18% interest be awarded on the entire amount due from the filing of the case till its payment and the Complainants be permitted to deduct such due amount from out of the cost of the flat and cost for Rs.11,000 as cost of litigation.
The OPs have filed the WS wherein it is submitted that the Complainants in order to invest money in the flats deposited the amounts as alleged towards booking amount, no allotment of the flat was made in favour of the Complainants, the payment was made towards the booking of the flats and the cost was fixed to Rs.25.00 lakhs in total of the two flats and the Complainants were required to deposit the amount prior to the registration of the agreement and sale deed, however the allegation of the Complainants that the OPs demanded the cheque for early construction is wholly illegal and perverse.
The Complainants since required their money to be invested in Real Estate Sector applied for the allotment of two flats with the OPs but instead of depositing the cost of the flats filed the instant complaint case which is wholly misconceived and is devoid of merits. There was no condition precedent for possession of the flats as alleged the Complainants were under obligation to make the payment towards the cost of the flats which they failed and as such they are not entitled for any relief. Sale deed and allotment of the flat can only be done after the deposit of the entire cost of the flats booked by the Complainants. They never called upon the Complainants to purchase the stamps rather without deposit of the cost of the flats no question of allotment and execution of agreement arises. The construction of the flats were already completed in the year, 2005 itself. However with ulterior motive and malafide intention the Complainants did not deposit the outstanding amount towards the booked flats, thus the Complainants are not entitled for any relief from this Hon’ble Forum. The OPs duly completed the flats and demanded the entire cost of the flats which have been admitted by the Complainants, however the Complainants did not pay the outstanding dues and delayed the process of allotment, execution of sale deed and possession of the flats, thus the guilt lies with the Complainants who are now claiming possession on their own fixed price. The Complainants are chronic defaulter and have no right to file and institute the present case. It is reiterated here that no flats stood allotted in the name of the Complainants neither had they deposited the entire cost of the flats and thus they cannot be inducted into possession. The stamp papers were purchased by the Complainants on their own will, the OPs demanded the total cost of the flats prior to allotment, agreement and possession which was not paid by the Complainants. The Complainants were under the obligation to deposit the entire outstanding dues only thereafter the allotment, registry and possession
could have been delivered. No area as alleged was reduced neither the cost was fixed at Rs.6.50 lakhs. The OPs never insisted for the Complainants to give on rent the flats as alleged. The same was done without the permission of the OPs. The Complainants are involved in commercial activities and as such cannot be treated as a consumer under the provisions of the Consumer Protection Act, 1986. The Complainants did not want to make the payment of outstanding dues rather they are insisting to take the flats at their own fixed cost. The OPs reiterate that this Hon’ble Forum has no jurisdiction to entertain and adjudicate the complaint case since the matter of fixation of price has been alleged by the Complainants which is not cognizable under the provisions of the Consumer Protection Act, 1986. The complaint filed by the Complainants under Section 11/12 of the Consumer Protection Act, 1986 is not maintainable as the Complainant is not covered under Section 2(1)(d) of the Act. The definition provided under Section 2(1)(b) of the Act is also not applicable on the Complainant. The Complainant is not entitled for any relief, hence this complaint is liable to be dismissed with exemplary costs.
The Complainant No.1 has filed his affidavit with 4 annexures and 2 annexures with the complaint. The OPs have filed the affidavit of Smt. Pushpa Saini, OP No.1 with 1 annexure.
Heard Counsel for the Complainant. Written arguments filed by the Complainant No.1 and 2 and OPs. Perused the entire record.
Now, it is to be seen as to whether the Complainants had purchased two flats No.107 and 108 at a cost of Rs.6,80,000.00 per flat and had made payment of Rs.1,75,000.00 and Rs.1,50,000.00 through cheques on 10.03.2005 as is the contention of the Complainants or the Complainants had only made bookings of the flats the cost of
which were Rs.25.00 lakhs as is the contention of the OPs. Another point i.e. to be seen is as to whether the OPs committed deficiency in service, in not completing the flats in time or the OPs completed the flats but the Complainants did not make entire payments of the flats for taking the possession. It is also to be seen as to whether the Complainants are not the consumers as they are involved in the commercial activity as is the contention of the OPs. It is also to be seen as to whether this Forum has no jurisdiction to entertain this complaint as the matter of fixation of price has been alleged by the Complainant and therefore this case is not maintainable under the provisions of the Consumer Protection Act.
With regard to the maintainability of this case, the then Hon’ble Forum passed order on 18.01.2006 and has decided that this complaint is maintainable in this Forum as it is within the limit of Rs.25.00 lakhs and the objections raised against this limit were rejected by the Forum. That order shall be part of this judgment.
With regard to the issue as to whether the cost of the flats was Rs.6.80 lakhs per flat and hence the cost of the two flats purchased by the Complainants was Rs.13,60,000.00 or the cost of the flats was Rs.25.00 lakhs as is the contention of the OPs. In this regard, it is to be mentioned that there is no dispute that two flats No.107 and 108 were booked by the Complainants and that the Complainants have made payments of Rs.1,75,000.00 and Rs.1,50,000.00 through two cheques on 10.03.2005 to the OPs. The Complainant has in support of his contention that the price of the flat was Rs.6,80,000.00 per flat, stated this fact firstly on oath and thereafter he has also filed photocopy of the sale deed of flat No.106 of the OPs sold to Dr. Vijai Kumar Saxena for a sum of Rs.7.00 lakhs situated in the same building of Pushpa Apartments. This flat No.106 is nearly of the same area as the area of the flats allotted to the Complainant and sale deed also is of 11.01.2005 i.e. about two months prior of the purchase of the flats by the Complainant.
This sale deed shows that the Complainant’s contention that the cost of the flat was Rs.6.80 per flat was correct as it finds support from the aforesaid sale deed but on the contrary there is no credible evidence provided by the OPs to prove that the cost of the flats was Rs.25.00 lakhs i.e. Rs.12.50 lakhs per flat. Therefore, there are strong reasons to conclude that the cost of the flats was Rs.6.80 per flat as is the contention of the Complainant and not Rs.25.00 lakhs as is the contention of the Complainant.
Now, we come to the next point that as to whether the OPs did not complete the flats in question in time and therefore they have committed deficiency in service or the OPs had completed the flats but the Complainants did not make entire payments of the flats for taking the possession and therefore there is no deficiency on the part of the OPs. In this regard, the Complainant has filed photocopies of the receipts of the payment of Rs.1,75,000.00 through cheque on 10.03.2005 and on the same date another cheque for Rs.1,50,000.00 the copy of the receipts have been filed as annexure 1. The cheque for Rs.1,75,000.00 is with regard to the payment of the flat No.107 and that of Rs.1,50,000.00 for payment of flat No.108. The Complainant has also filed his affidavit wherein it is stated that the agreed sale price of Rs.13,60,000.00 is for the two flats and he has further stated that the two cheques dated 28.06.2005 for Rs.2.85 lakhs and Rs.7.00 lakhs were taken by the OPs and the first was encashed on 28.06.2006 and these facts have not been controverted by the OPs in their WS. The Complainants have stated in his affidavit that there were deficiencies in the construction of the house but the OPs insisted on getting the sale deed registered of the flats before the completion of the flats in time by 31.05.2005 but the Complainants wanted the OPs to get the sale deed of flat No.107 in March-April 2005, therefore he purchased stamp papers of Rs.45,000.00 but OP
No.2 insisted on getting the sale deed executed on first and rest of the work will be completed later. It is argued by the OPs that the Complainants were not interested in making the entire payments of Rs.25.00 lakhs to the OPs and besides their intention was only to make profits out of the flats instead of taking the possession of the flats but there is no evidence to specifically counter the allegations of the Complainants that the flats in question did have deficiencies and that the OPs did rectify these deficiencies and still the Complainants did not take the possession by paying the entire amount. Firstly here it has been held above that the cost of the flat was Rs.6.80 lakhs per flat, hence there was no question of Complainants paying Rs.25.00 lakhs for two flats. Secondly, when the OPs have failed to rectify the deficiencies pointed out by the Complainants then the Complainants were not obliged to make the entire payments of the flat. There are letters written in this regard by the Complainants for rectifying the defects but there is no credible evidence put forward by the OPs for showing that the flats were very much ready and completed in all respects and free from any deficiencies pointed out by the Complainants, therefore the Complainants were well within their rights to order to stop payment of one of the cheques which was issued by them to the OPs as both the flats were not ready. Besides it is wrong on the part of the OPs to state that the Complainants were not ready to get the registry of the flats done as the Complainants have clearly stated that they had already purchased stamp papers for one of the flats but as the OPs were bent upon getting the registry of the sale deed of both the flats, therefore the Complainants asked the OPs to complete both the flats before the registry could be done. Therefore, there is again evidence to conclude that the Complainants had made payment of both the flats through cheques but as one of the flats was not ready, hence the payment of one of the cheque already issued to the OPs for a sum of Rs.7.00 lakhs was ordered to be stopped. Obviously, there is deficiency in service on the part of the OPs in this regard as despite getting the payment of the flats they had not completed the flats in all the respects and bent upon getting the sale deed registered, without the flats being completed.
Another issue raised by the OPs is that the Complainants are not the consumers in this case under the Consumer Protection Act as they had purchased the two flats for making profits and therefore the transaction was of commercial activity and therefore they are not the consumers under the Consumer Protection Act. In this regard, first of all, the Complainants have taken the stand that both the flats were to be used in one unit, therefore the argument advanced by the learned Counsel for the Complainants that even though there were two units but they were to be used as one unit and they were purchased for personal use for their daughters, hence there is no question of any commercial activity. In support of their contention the Complainants have argued that in the complaint in para 3 it is mentioned that a door was to be fixed in between the two flats, thus both the units were to be used as one unit. It is further argued by the Complainants that the flats were of one bedroom flats of about 107 sq. mt. and hence both the flats were to be joined with a door in between and to be used as one unit so that it could be sufficient enough to accommodate the families. No counter allegation that the door was not to be fixed in between the flats, has been made by the OPs which gives credibility to the contention of the Complainants that the flats were to be used as one unit, therefore there was no question of there being two flats for the purposes of making profits and the judgments filed in support of the contention by the learned Counsel for the OPs that buying two flats constitute commercial activity and therefore the Complainants were not the consumers in the instant case is not tenable. Besides in the instant case there are two Complainants and therefore buying of two flats by two individuals make it out to be a simple case of one individual per flat, even if both the Complainants are husband and wife as they have their individuality and can buy two flats individually, therefore first of all the two units were to be used as one unit and secondly because there are two Complainants, therefore buying two flats by them cannot make it out to be a case where it could be concluded that the Complainants were indulging in commercial activity and therefore the case law cited in this regard are of no avail.
So far as the allegation of the OPs that this is a matter of fixation of price, therefore this complaint is not maintainable under the provisions of the Consumer Protection Act is concerned it is found that this is simply a case of deficiency in service on the part of the OPs where they have tried to dispute the price of the flats in question which has been found to be without any merit, therefore it cannot be said that this is a matter of fixation of price and therefore this case is not maintainable in this Forum.
Now, on the basis of the detailed discussions on all the issues, we have come to the conclusion that the OPs have committed grave deficiency in service in not providing the flats to the Complainants, complete in all respects even though they received the cost of both the flats, though the payment of cheque of Rs.7.00 lakhs was stopped by the Complainants as the flats were not complete in all respects. Therefore, the Complainants are entitled to the possession of the flats but during the pendency of the case the flats in question were sold out by the OPs despite an exparte stay order was granted by the Forum on 27.07.2005 restricting the OPs to sell and hand over the flats in question to anyone. In this regard, the preliminary objections were filed by the OPs on 16.01.2006 which were decided by the then Forum on 18.01.2006 that the objections raised by the OPs were rejected. On these circumstances, the OPs should not have sold out the flats in question to anyone. It also makes out it again a case of not only flouting the orders of the Forum but also totally an unfair trade practice, therefore the Complainants are entitled to get
two flats of the same area at a cost of Rs.6,80,000.00 per flat
i.e. Rs.13,60,000.00. Since the Complainant has already made payment of Rs.6,80,000.00, therefore the OPs are to provide flats to the Complainants after taking the remaining amount of Rs.6,80,000.00 from the Complainants and in case the OPs are not able to provide the flats then the OPs shall refund the amount of Rs.6,80,000.00 with compound interest @ 12% from the date of filing of the case till the final payment is made to the Complainants. This is a glaring example of how the builders cheat the hapeless consumers by making false promises and not providing flats despite taking entire payments. The Complainants in this case are senior citizens who have been taken for a ride by the OPs. Despite stay orders granted by the Forum they have sold out the flats already purchased by the Complainants and thus they have been thoroughly harassed physically and mentally by the OPs, therefore the Complainants are also entitled to adequate compensation as also cost of the litigation.
ORDER
The complaint is partly allowed. The OPs are jointly and severally directed to provide the two flats of the same size in the same locality to the Complainants after taking the remaining amount of Rs.6,80,000.00 from the Complainants. In case the OPs are not able to provide the flats then the OPs shall refund the amount of Rs.6,80,000.00 (Rupees Six Lakh Eighty Thousand Only) with compound interest @ 12% from the date of filing of the case till the final payment is made to the Complainants.
The OPs are also directed to pay Rs.2,00,000.00 (Rupees Two Lakhs only) as compensation and Rs.10,000.00 (Rupees Ten Thousand only) as cost of the litigation to the Complainants. The compliance of the order is to be made within a month. If the compliance of the order is not made within a month then the OPs shall have to pay 15% compound interest on the entire amount due.
(Rajarshi Shukla) (Anju Awasthy) (Vijai Varma)
Member Member President Dated: 12 May, 2015
