Madhya Pradesh

StateCommission

A/17/911

SEEMANT GUPTA - Complainant(s)

Versus

SHEEL CONSTRUCTION - Opp.Party(s)

MS.BHARTI SHASHTRI

11 Jan 2023

ORDER

M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL

                   PLOT NO.76, ARERA HILLS, BHOPAL                         

                                                                         

                                      FIRST APPEAL NO. 897 OF 2017

(Arising out of order dated 20.04.2017 passed in C.C.No.10/2017 by the District Commission, Hoshangabad)

 

SHEEL CONSTRUCTION,

THROUGH PROPRIETOR SHEEL MOHBE,

S/O SHRI KRISHNA KUMAR MOHBE

R/O HOUSE NO.4, D.K.DIAMOND,

KOLAR ROAD, BHOPAL (M.P.).                                                                         …          APPELLANT.

                  Versus      

          

SEEMANT GUPTA S/O SHRI BAL KRISHNA GUPTA,

R/O GUPTA BHAWAN, BALAGANJ WARD NO.9,

TEHSIL & DISTRICT- HOSHANGABAD (M.P.)                                                   …         RESPONDENT.

 

                                     FIRST APPEAL NO. 911 OF 2017

(Arising out of order dated 20.04.2017 passed in C.C.No.10/2017 by the District Commission, Hoshangabad)

 

SEEMANT GUPTA S/O SHRI BAL KRISHNA GUPTA,

R/O GUPTA BHAWAN, BALAGANJ WARD NO.9,

TEHSIL & DISTRICT- HOSHANGABAD (M.P.)                                                    …          APPELLANT.

                  Versus      

          

SHEEL CONSTRUCTION,

THROUGH PROPRIETOR SHEEL MOHBE,

S/O SHRI KRISHNA KUMAR MOHBE

R/O HOUSE NO.4, D.K.DIAMOND,

KOLAR ROAD, BHOPAL (M.P.).                                                                            …         RESPONDENT.

 

BEFORE :

            HON’BLE SHRI JUSTICE SHANTANU S. KEMKAR   :  PRESIDENT

            HON’BLE SHRI S. S. BANSAL                                     :  MEMBER

            HON’BLE DR. (MRS) MONIKA MALIK                       :  MEMBER

                     

COUNSEL FOR PARTIES :

                Ms. Bharti Shashtri, learned counsel for the complainant-Seemant Gupta. 

            Shri Himanshu Rai, learned counsel for the opposite party-Sheel Construction.

                                                         O R D E R

                                       (Passed on 11.01.2023)

                   The following order of the Commission was delivered by Dr.(Mrs) Monika Malik, Member:

                         Aforesaid two appeals arise out of a common order and are taken up together.  For convenience facts of the case are taken from the First Appeal No.897/2017 unless otherwise stated.

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2.                Aforesaid appeals assail the order dated 20.04.2017 passed by the District Consumer Disputes Redressal Commission, Hoshangabad (For short ‘District Commission’) in C.C.No.10/2017 whereby the District Commission has partly allowed the complaint. First Appeal No.897/2017 has been filed by the opposite party for setting aside the impugned order whereas First Appeal No.911/2017 has been filed by the complainant for enhancement of compensation.

3.                Briefly put, facts of the case are that the complainant entered into an agreement on 23.07.2013, with the opposite party regarding purchase of Flat No. J-203, situated in Block-J, second floor, Rewacity Campus, Hoshangabad for a sum of Rs.13,50,000/-. Registered sale-deed with regard to said flat was executed in favour of the complainant on 09.10.2013.  The opposite party had promised that it will hand over the possession of the flat to the complainant on 01.06.2014.  The complainant alleged that the opposite party failed to hand over the possession the said flat within the specified time frame.  There was delay of six and half months in giving possession of the said flat to the complainant.  It is also alleged that the opposite party failed to provide all other amenities, which were promised earlier.  Therefore, alleging deficiency in service on part of opposite party, the complainant filed a complaint before the District Commission seeking relief.

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4.                The District Commission closed the right of the opposite party to file reply before it.

5.                The District Commission allowed the complaint directing the opposite party to complete the incomplete work as stipulated in the complainant’s email dated 24.12.2014 within a period of two months. The opposite party is also directed to refund Rs.36,000/-, which was obtained towards pre EMI from the complainant with interest @ 18% p.a. from 10.01.2017 within a period of two months. The opposite party is also directed to provide documents such as completion certificate, occupancy certificate and a receipt of service tax deposited by the opposite party, to the complainant, within a period of two months and if the opposite party fails to provide service tax receipt, it is directed to refund the balance amount with interest @ 18% p.a. from 10.01.2017, till realization. Compensation of Rs.25,000/- along with costs of Rs.2,500/- is also awarded.

6.                Heard.

7.                Learned counsel for the complainant argued that the District Commission has erred in awarding interest on pre-EMI of Rs.36,000/- whereas interest on pre EMI of Rs.59,818/- ought to have been awarded from 01.06.2014.  She argued that the impugned order deserves to be modified on the above basis and also the compensation awarded by the District Commission deserves to be enhanced.

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8.                Learned counsel for the opposite party argued that the complainant himself is responsible for delay in possession of the said flat since he had not made payment in accordance with terms of the agreement.  Therefore, the possession of the flat which was to be given on 01.06.2014 was taken by the complainant on 15.12.2014. He argued that the complainant due to ill-will sent an e-mail dated 24.12.2014 to the opposite party giving reference of incomplete work, when he had obtained possession of the flat in question, in full and final settlement and no work was left to be completed by the opposite party.  He further argued that the complaint filed by the complainant is time barred.  The complainant obtained possession of the flat on 15.12.2014. He eventually filed a complaint before the District Commission on 10.01.2017.  Since the complainant approached the District Commission after a period of two years from the date of accrual of cause of action, the instant complaint filed by him is barred by limitation.  The District Commission ought to have dismissed the complaint as such. He also argued that the District Commission has arbitrarily given directions to the opposite party to give receipt of the service tax deposited by it.  The opposite party deposits consolidated amount to the concerned department after obtaining it from various purchasers and it is not possible and is not a mandatory provision to give receipts of such deposits to individual purchasers.

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9.                On going through the record we find that the possession letter is annexed as ‘C-2’ in the record of the District Commission, from which it is evident that the possession was obtained by the complainant on 15.12.2014. From perusal of the said possession letter it appears that the complainant was satisfied with the construction work done by the opposite party. Subsequently, there was no communication between the complainant and the opposite party barring an e-mail dated 24.12.2014 from the complainant citing certain incomplete work. The complaint was filed by him before the District Commission on 10.01.2017.  On perusal of the impugned order we find that the District Commission has not even considered the point of limitation in the instant case.  In fact, the District Commission has not even framed any point for determination regarding question of limitation.

10.              In view of the above, we are of a considered opinion, that the case deserves to be remanded to the District Commission for decision afresh.

11.              Accordingly, the impugned order is set-aside and the case is remanded to the District Commission for decision afresh.

12.              Parties are directed to appear before the District Commission on 10.02.2023.

13.              Record of the case be sent at the earliest to the District Commission.

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14.              Parties are at liberty to file additional evidence in support of their respective contentions as and when directed by the District Commission, within the time specified for the same.

15.              The District Commission is directed to proceed further in the matter in accordance with law.

16.              Needless to mention that the District Commission may not be influenced by the observations made hereinabove.

17.              The District Commission is expected to pass a well-reasoned order dealing with all the points as discussed hereinabove.

18.              With the aforesaid observations and directions, these appeals stand disposed of.  However, no order as to costs.

19.              This order be placed in First Appeal No.897/2017 and a copy be placed in First Appeal No.911/2017.

 

(JUSTICE SHANTANU S. KEMKAR) (S. S.BANSAL) (DR. MONIKA MALIK)                      

                  PRESIDENT                           MEMBER              MEMBER