Per – Hon’ble Mr. Dhanraj Khamatkar, Member
This appeal filed by the Appellant/original Complainant (hereinafter referred to as ‘the Complainant’ for the sake of brevity) takes an exception to an order dated 29/3/2008 passed by the District Consumer Disputes Redressal Forum, Raigad (hereinafter referred to as ‘the District Forum’ for the sake of brevity) in Consumer Complaint No.106 of 2007, Smt. Archana Maruti Shingade Vs. M/s. Sai Pushpa Constructions and Anr. Facts leading to this appeal can be summarized as under:-
[2] The Complainant had booked a flat in a construction to be carried out by the Respondent No.1/original Opponent No.1 (hereinafter referred to as ‘the Opponent No.1’ for the sake of brevity). The land belonged to the Respondent No.2/original Opponent No.2 (hereinafter referred to as ‘the Opponent No.2’ for the sake of brevity) who has executed a development agreement in favour of the Opponent No.1. The Complainant states that she has booked a flat admeasuring 446 sq. ft. situated on the ground floor. Consideration for the said flat was fixed at `5,46,000/-. Initially, the Complainant paid an amount of `1,50,000/- on 3/8/2006. Pursuant to the initial payment of `1,50,000/- an agreement for sale in respect of the said flat has been registered with the Sub-Registrar Uran, District – Raigad. Registration number of the transaction is 04766/2006. Correction Deed was registered on 1/11/2006 making certain amendments in the original agreement. Thereafter, the Opponent No.1 vide a letter dated 27/9/2006 demanded an amount of `3,96,000/- from the Complainant. The Complainant stated that she was ready to pay an amount of `3,06,000/-. However, the Opponent No.1 did not hand-over possession of the flat to the Complainant and started demanding more money from the Complainant. The Complainant further stated that she had to take an accommodation on rent on monthly rent of `3,500/-. The Complainant had issued a notice dated 10/5/2007 to the Opponent No.1. However, the Opponent No.1 had not given any reply. Hence, she had filed a consumer complaint praying that the Opponent No.1 may be directed to hand-over possession of the flat to her and to pay her an amount of `50,000/- towards accommodation which she had taken on rent. She also claimed an amount of `2,00,000/- by way of compensation towards mental agony plus `27,000/- for interest on payment made and `1,00,000/- by way of compensation towards physical agony.
[3] The District Forum issued notices to both the Opponents. Inspite of due service of notice the Opponent No.1 remained absent and hence, the District Forum proceeded ex-parte as against the Opponent No.1. Opponent No.2 appeared and filed his written version. In his written version, the Opponent No.2 had contended that originally land belonged to him and he has given the land for development by executing development agreement in favour of original Opponent No.1. Similarly, the Appellant/original Complainant paid him `1,50,000/- for the booking of the flat. However, after executing the development agreement he has transferred the booking amount of `1,50,000/- to the original Opponent No.1 and the original Opponent No.1 accepted this fact in the agreement executed with the Appellant. Hence, he prayed that the complaint against him be dismissed.
[4] The District Forum after going through the complaint, written version filed by the Opponent No.2, evidence adduced by the Appellant on affidavit and pleadings of the advocate of original Complainant/Appellant had come to a conclusion that there is no deficiency in service on the part of the Opponents and dismissed the complaint with costs. It is against this order that the Complainant has filed this appeal.
[5] On 1/7/2010 we heard Adv. Anita Marathe on behalf of the Appellant/original Complainant and admitted the appeal and continued the interim stay already granted on 28/4/2010 in favour of the Appellant/original Complainant.
[6] During the course of hearing Learned Advocate for the Respondent No.1 filed an affidavit of the Respondent No.1 inter-alia stating that on 16/2/2010 he has sold the flat which is subject matter of appeal to one Mr. Dineshchandra Sureshchandra Wadgaonkar and handed over the possession. Similarly, he stated that on 27/09/2006 he had called upon the Complainant to deposit an amount of `3,96,000/- and alongwith the letter he had issued a letter in favour of Bank of Baroda giving no objection to the Complainant to mortgage the said flat. The Opponent No.1 has further stated in his affidavit that as per the agreement for sale if the Complainant, as the flat-purchaser, fails to pay the arrears of the work-wise installments within a period of two months, the Respondent No.1, as the Promoter, shall have a full right to terminate the agreement with the Complainant or dispose of and sell the said premises to a third party. The Opponent No.1 further contended in his affidavit that since the Complainant failed to make payment of balance consideration amount within time, the agreement for sale dated 31/7/2006 stands terminated. Further, the Respondent No.1 stated that on 3/3/2010 and 4/3/2010 he published a public notice in daily newspapers – ‘Krushival’ and ‘Raigad Times’ and called upon the Complainant to collect an amount of `1,50,000/-. Alongwith the affidavit, the Respondent No.1 has filed a copy of the demand letter and copy of no objection issued in favour of Manager, Bank of Baroda to mortgage the flat. Copies of public notices dated 3/3/2010 and 4/3/2010 which appeared in Daily ‘Krushival’ and Daily ‘Raigad Times’ requesting the Complainant to take her amount back are also annexed to his affidavit.
[7] The Complainant/Appellant filed an application for amendment in the prayers. She has produced on the record a copy of Memorandum of Deposit of Title Deeds in respect of advance secured by equitable mortgage of immovable property entered into with the Bank of Baroda and a copy of extract of ready reckoner giving property rates in the area wherein property is situated.
[8] We heard Adv. Mrs. Anita Marathe for the Appellant and Adv. Ranjana Todankar for the Respondent No.1.
[9] Admittedly, the Complainant had booked a flat in a construction to be carried out by the Opponent No.1 and paid an amount of `1,50,000/-. Pursuant to the initial payment an agreement for sale was registered on 3/8/2006 between the parties. Amended agreement was also registered on 1/11/2006 stating therein the name of the building as Yogeshwar Complex. A copy of the agreement for sale is attached in the appeal compilation. It gives the details of the flat. Flat is admeasuring 446 sq. ft. in area and it is situated on the ground floor and the amount of consideration is `5,46,000/-. The agreement gives the schedule of payment and the amount already paid by the Complainant before registration of the agreement for sale. The construction was to be completed within 18 months from the execution of agreement to sale. It is specifically mentioned in the agreement that this agreement shall always be subject to the provisions contained in the Maharashtra Flats Rules, 1964 and Maharashtra Ownership of Flats Act, 1963 as amended up to date. Clause No.(05) on internal page (06) of the said agreement reads as follows:-
“The Purchaser/s shall pay to the promoter as per agreement on work-wise installment. If the purchaser fails to pay according to work-wise installment due, the purchaser shall pay within one week of a Notice served individually by the Promoter. If Purchaser committing default in making payment on such due dates, the promoter shall grant two month’s time for clearing the arrears payment and promoter shall be entitled to receive interest @ 18% per annum for the period of two months. If the purchaser fails to pay the arrears of work-wise installment within two months the promoter shall have full right to terminate the agreement with the purchaser or dispose off and sell the said premises to the third party out of the sale consideration received, the builder shall deduct 10% expenses and interest @ 18% for the late payment and refund the balance sale consideration to the purchaser.”
[10] There is a schedule of payment which gives the details of the payment to be made by the Complainant as per the progress of the construction. In the present case, the Complainant had paid an amount of `1,50,000/- before execution of the agreement for sale. Thereafter as per the agreement the Respondent No.1 had not communicated the demand of payment as per the progress of construction. The Opponent No.1 relying on Clause No.(05) of the agreement contended that the Complainant failed to make the payment as per the demand letter issued by the Opponent No.1. However, in the agreement, in Clause No.(05) the condition stipulated is if the purchaser committed default in making payment on such due date the promoter shall grant two months time for clearing the arrears of payment and promoter shall be entitled to receive interest @ 18% p.a. for the period of two months. If the purchaser further fails to pay the arrears of work-wise installments within two months, the promoter shall have a right to terminate the agreement with the purchaser or dispose of and sell the said premises to a third party and out of the sale consideration received the builder shall deduct 10% expenses and interest @ 18% for the late payment and refund the balance sale consideration to the purchaser.
[11] The Respondent No.1 is relying upon a letter bearing Reference No.SPC:BOM:06-07:178, wherein date of letter is not visible, wherein the Opponent No.1 had demanded an amount of `3,96,000/- from the Complainant and had further written that if the Complainant was not able to pay the due amount within a period of seven days then in that case the Complainant will have to pay interest @ 18% p.a. on due amount as per Clause No.(05) mentioned in the agreement which will be calculated from next seven days of this letter or the Respondent No.1 will be entitled to revoke the Complainant’s booking. Alongwith this letter, the Opponent No.1 has attached a copy of no objection letter issued to the Bank of Baroda giving no objection to mortgage the flat. Letter relied upon by the Respondent No.1 cannot be considered as it is termination of the agreement entered into with the Complainant. On the contrary, as per the agreement for sale dated 3/8/2006 the Opponent No.1 was legally bound to receive the payment as per the progress of construction. There is nothing on the record to show that the Respondent No.1 had communicated to the Complainant the various stages of the progress of the construction and demanded money.
[12] Letter bearing Reference No.SPC:BOM:06-07:178 written by the Respondent No.1 to the Complainant/Appellant is not as per the conditions of the agreement and it cannot be legally treated as on the basis of this letter the Opponent No.1 terminated the agreement. As against this, the Complainant has filed on the record a copy of ‘Memorandum of deposit of title deeds in respect of advance secured by equitable mortgage of immovable property’ entered with the Bank of Baroda to prove that the Complainant was ready to take a loan from the Bank of Baroda. A copy of the letter written by the Opponent No.1 to the Bank of Baroda giving no objection to mortgage the flat is not sufficient to take a loan from the bank. In view of the aforesaid facts the alleged termination of the agreement for sale dated 3/8/2006 by the Respondent No.1 is not as per the due process of law.
[13] The District Forum miserably failed to appreciate the legal position. The observation of the Learned District Forum that as per the agreement 5% of the consideration amount was to be paid to the Opponent No.1, however, the Complainant has made payment of `1,50,000/- and how she had made the payment was not explained by the Complainant, is perverse and cannot stand to the legal scrutiny. Learned District Forum has also failed to take a note of the fact that in the agreement there is a schedule of payment to be made as per the progress of the construction. However, the Respondent No.1 had never informed the Appellant about the progress of the construction and the amount to be paid by the Appellant as per the conditions incorporated in the agreement. There is a clear-cut deficiency in service on the part of the Respondent No.1. The Respondent No.1 miserably failed to act as per the conditions of the agreement. The Respondent No.1 had unilaterally tried to terminate the agreement without following due procedure of law.
[14] After filing of the present appeal, on 28/4/2010 we had granted an ad-interim relief in favour of the Complainant directing the Respondent No.1 not to create third party interests in respect of the flat in question. On 1/7/2010 we admitted this appeal and continued the interim relief already granted until further orders. Despite this, the Opponent No.1 has created third party interests by executing an agreement for sale in favour of the third party vide an agreement for sale dated 16/2/2010 executed in favour of Mr. Dineshchandra Sureshchandra Wadgaonkar. This case is best example of how the process of law can be abused. Even after alleged termination of agreement the Respondent No.1 had not returned the amount paid by the Complainant. To show that he wanted to return the amount paid by the Appellant, the Respondent No.1 has produced the copy of public notice published in Daily ‘Raigad Times’ dated 4/3/2010 and Daily ‘Krushival’ dated 3/3/2010. This is nothing but an afterthought.
[15] The Respondent No.1 has issued a letter dated 27/9/2006 asking the Appellant to pay an amount of `3,96,000/- within seven days failing which he will be entitled to terminate the agreement. Prima-facie this letter is against the terms of agreement to sale. As per the agreement to sale the payments are to be made as per the progress of construction. No such demands have been made by the Respondent No.1 to the Appellant. On the contrary, the Respondent No.1 had executed the Deed of Correction with the Appellant incorporating the details of Flat No.G-5, Ground Floor in ‘B’ TypeBuilding on 1/11/2006. In view of this legal position the Respondent No.1 legally cannot take a plea that he has terminated the agreement as the Appellant failed to deposit the amount as per his letter dated 27/9/2006. The Appellant had issued a notice dated 10/5/2007 through an advocate to the Respondents asking to hand-over the possession of the flat within seven days and she is ready to pay the remaining amount. The Appellant had adduced the copy of notice alongwith the acknowledgement. The Respondent No.1 had not replied the notice. The Learned District Forum has overlooked this important evidence. Learned Counsel for the Appellant has produced on the record a copy of ready reckoner applicable for the Thane District for the year 2012 wherein present market value of the property in vicinity wherein the property involved in the appeal is situated is `41,000/- per sq. meter and she has calculated present market value of the flat at `16,98,825/-.
[16] We observe that the present case is best example as to how the consumers are exploited. There is deficiency on the part of Respondent No.1. The Learned District Forum had miserably failed to appreciate the facts of the case and arrived at conclusions which are perverse and against the objectives of the Consumer Protection Act, 1986. In the present case, the Respondent No.1 had created third party interest in the flat booked by the Appellant without legally terminating the agreement. The Learned Counsel for the Appellant stated that the Appellant is from the economically weaker section of the society. Naturally to have a house of one’s dream is an expectation of a common man. As the Respondent No.1 had created third party interest in the flat, it will not be prudent to direct the Respondent No.1 to handover the possession of the flat booked by the Appellant. In the facts and circumstances of the case it will be proper if we direct the Respondent No.1 to hand-over the possession of the flat admeasuring 446 sq. ft. in the locality wherein the flat booked by the Appellant exists on payment of `3,96,000/- or pay the market price of the flat which comes to `16,98,825/- as per the ready reckoner minus the amount of `3,96,000/-. We hold accordingly and pass the following order:-
ORDER
The appeal is allowed and the order of District Forum dated 29/3/2008 is hereby set aside.
The Respondent No.1 is directed to hand-over the possession of a flat admeasuring 446 sq. ft. in the locality wherein the flat booked by the Appellant exists after receiving a payment of `3,96,000/- from the Appellant;
OR
To pay to the Appellant an amount of `16,98,825/- minus `3,96,000/- which comes to `13,02,825/- within a period of two months failing which the amount will carry interest @ 12% p.a., till the realization of the amount.
The Respondent No.1 to pay costs of `25,000/- to the Appellant and bear his own costs.
Pronounced on 16th April, 2012
