Complainant through Adv. Shinde
Opponent No. 1 through Adv. Patange
Opponent No. 2 through Adv. Joshi
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Per : Mr. V. P. Utpat, President Place : PUNE
// J U D G M E N T //
(19/07/2013)
This complaint is filed by the bungalow purchaser against the construction company for deficiency in service under section 12 of the Consumer Protection Act, 1986. The brief facts are as follows,
1] The complainant is a resident of Shiv Shankar Co-operative housing society, Pune – 37. The opponent no. 1 is a construction company and the opponent no. 2 is a partner of the said partnership firm. The opponent no. 3 is a bank from whom the complainant has obtained loan for purchasing bungalow. The opponent no. 1 had acquired development rights of the property bearing Plot No. 25 to 34, out of Sr. No. 14/2, 3 and 4 at Bavdhan Khurd, Tal. Mulshi, Dst. Pune, from its owners Shri. W.K. Shinde and Shri. H.W. Shinde and started construction over the plot. In the year 2000, the complainant was in search of twin bungalow for residential purpose in the vicinity of Bavdhan area. He came to know about the project of the opponent no. 1. He approached the opponent no. 2 as regards the said project. The opponent no. 2 agreed to sell out unit No. A-2, consisting of Ground plus First Floor admeasuring 1439 Sq. ft. built-up area along with 950 sq. ft. garden, 180 sq. ft. porch area and 804 sq. ft. terrace area for Rs.16,00,000/-. He had executed registered agreement to sale on 8/5/2000 in favour of the complainant. As per the terms and conditions of the agreement, the construction of the bungalow was to be completed within 24 months and the possession was to be delivered within that period. The complainant paid an amount of Rs. 25,000/- as earnest money on 29/1/2000 by cheque, then Rs. 1,00,000/- on 4/11/2000 by another cheque, Rs. 75,000/- on 9/3/2001 by third cheque. The complainant applied for housing loan to Corporation Bank Homes Ltd. and the bank sanctioned Rs. 14 lacs as housing loan for the said bungalow. The opponent gave written consent for mortgaging the said bungalow with the Corporation bank i.e. opponent no. 3. An amount of Rs. 12 lacs were released to the opponent no.1 on 8/3/2001 by the opponent no. 3. Out of an amount of Rs. 16 lacs, the opponent no. 1 has received Rs. 14 lacs. The complainant agreed to pay balance Rs. 2 lacs at the time of possession of twin bungalow. Son of the complainant obtained flat on rent basis near the opponent’s project and was pursuing the opponent no. 1 and 2 for completing the construction during period of 2002-04. In the month of June 2006, the complainant requested for completing the construction and he agreed to pay balance amount, at that time the opponent has demanded Rs. 3 lacs in excess. On 12/6/2006, the opponent no. 2 issued letter as regards cancellation of the agreement. The complainant has issued notice to the opponent on 19/7/2006 and called upon him to complete the balance work within 30 days and deliver the possession. However, the opponent has not complied with the notice and not completed the finishing work. The complainant has required to spent rent of Rs. 10,000/- per month from Jan. 2005, as the possession of the bungalow is not delivered. In the first week of June 2006, the complainant approached the opponent and requested to deliver the possession of the twin bungalow and he had also agreed to pay Rs. 1 lac in excess to the balance amount of Rs. 2 lac. That time the opponent demanded Rs. 10 lacs. The complainant is always ready and willing to pay balance amount of Rs. 2 lacs, but the opponent has not complied the terms and conditions of the agreement. Hence, this complaint is filed by the complainant for directing the opponent to complete the balance work and deliver the possession of twin bungalow. The complainant has also asked an amount of Rs. 15,000/- per month by way of damages from Jan. 2003 as compensation. The complainant has further asked cost of Rs. 5,000/-.
2] The opponent resisted the complaint by filing written version, in which it has denied the contents of the complaint. It is specifically denied that the opponent has ready and willing to sell out the bungalow for Rs. 16 lacs. According to the opponent, the price of the bungalow was 19 lacs and as per the request of the complainant, the less amount has been shown in the agreement in order to avoid the payment of stamp duty and registration charges. The complainant himself has not complied the terms and conditions of the agreement and paid the consideration amount, hence the opponent issued notice as regards the cancellation of the agreement. It is also contended by the opponents that no objection was given for mortgaging the bungalow under the impression that the complainant is ready to pay an amount of Rs. 19 lacs. It is not disputed by the opponent no. 2 that the complainant handed over the opponent no. 2 cheque of Rs. 12 lacs on 8/3/2001. As the complainant did not pay balance amount of Rs. 5 lacs, the possession of the bungalow was not delivered to him. The complainant was insisted for delivery of the possession of the bungalow after making payment of Rs. 14 lacs only. The opponent has prayed that the complainant be directed to pay balance amount of Rs. 5 lacs along with interest @ 24 % as per the terms and conditions of the agreement and prayed for dismissal of the complaint.
3] After scrutinizing the documentary evidence, which is produced before this Forum, hearing the arguments of both the counsels and considering pleadings, the following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1. | Whether complainant has proved that there is deficiency in service on the part of the opponents? | In the affirmative |
2. | Whether this Forum has jurisdiction to try and entertain the present complaint? | In the affirmative |
3. | What order? | Complaint is partly allowed. |
REASONS :-
4] The admitted facts in the present proceeding are that the opponent no. 1 and 2 agreed to sell out the bungalow, which is in dispute, to the complainant by executing registered agreement on 8/5/2000 for Rs. 16 lacs. It is also not in much dispute that the opponent has received consideration of Rs. 14 lacs. The complainant himself has informed the opponent that he is always ready and willing to pay balance amount of Rs. 2 lacs. It is not in dispute that the possession of the bungalow is not yet delivered to the complainant.
There is dispute between the parties as regards consideration. According to the complainant, the price of the bungalow is Rs. 16 lacs and according to the opponent, the same is 19 lacs. In order to substantiate the contention as regards the price of bungalow as Rs. 19 lacs, the opponent has not adduced any type of evidence. Hence, we have no alternative, but to rely upon the documentary evidence i.e. registered agreement, in which the opponent has agreed the price of the bungalow is Rs. 16 lacs.
The opponent has tried to make the present case complicated, by bringing on record various issues, as regards the registered partnership firm etc. It has been also tried to say that the opponent no. 2 is not the partner of the said firm. The wife of the opponent no. 2 has also applied for allowing her to contest this complaint as a necessary party. It is significant to note that, when the opponent no. 2 himself admitted the execution of the agreement to sale as well as acceptance of the consideration of Rs. 14 lacs, then all other contentions raised by the opponent need not be considered. It is also tried to bring on record that, said bungalow is attached by the opponent no. 3 for non payment of installments of loan; hence possession can not be delivered. But there is correspondence on behalf of the opponent no. 3, Corporation Bank before this Forum to show that the bank has took symbolic possession and it has not prevented opponent no. 1 and 2 to complete the construction and deliver the possession to the complainant. It has been tried to argue that in lieu of section 69 of the Partnership Act, this complaint is not maintainable, being filed against unregistered firm. But the present forum is not Civil Court and the present complaint is not a suit. As per the provisions of the Consumer Protection Act, 1986, the complaint can be filed against the individuals as well as against any Association. There is no necessity of registered firm for filing complaint under section 12 of the Consumer Protection Act, 1986. Hence, the law as regards section 69 of Partnership Act is not relevant in the present proceeding. It reveals from the contradictory stand taken by the opponent that the opponent itself admitted at one instance that, it has accepted consideration of Rs.14 lacs and subsequently it has tried to forget the entire transaction and pleaded that, it has no concern with the firm and it has never executed agreement to sale in favour of the complainant. As the substantive amount of consideration is paid by the complainant, there was no reason for cancellation of the agreement by sending notice by the opponent. Moreover, the registered agreement can not be cancelled by sending notice alone. It appears from the conduct of the opponent that, the opponent had tried to grab more and more amount from the complainant and avoided to complete the construction of bungalow as well as delivery of the possession, that amounts to deficiency in service. The complainant has produced documentary evidence as regards the agreement of leave and license to show that he is residing in rented premises. When most of the consideration amount is paid by the complainant, it was the duty of the opponent to complete the construction and hand over the possession of the bungalow to the complainant. Due to deficiency in service at the instance of the opponent, the complainant had required to stay in the rented premises and pay rent since 2003. Hence, the complainant is entitled for damages for deficiency in service as well as in the form of rent, which was required to pay by the complainant. In my opinion, the complainant has proved deficiency in service by the opponent. In the result, I answer the points accordingly and pass the following order,
** ORDER **
1. Complaint is partly allowed.
2. It is hereby declared that the opponents
have caused deficiency in service to the
complainant by not completing the
construction work as per terms and
conditions of the agreement and by not
delivering the possession of the bungalow
within two years, as per agreement.
3. The opponents are directed to complete the
finishing work of bungalow and deliver
the possession of the bungalow within three
months from the date of order.
The complainant is directed to pay or deposit
balance amount of Rs. 2,00,000/- (Rs. Two
lacs only) within one month from the date
of receipt of this order.
4. The opponents are further directed to pay
an amount of Rs. 3,00,000/- (Rs. Three Lacs
only) as damages and compensation for
deficiency in service, for mental and physical
harassment as well as for rent, which was paid
by the complainant and an amount of Rs. 5,000/-
(Rs. Five Thousand only) towards cost of the
litigation to the complainant, within one month
from the date of receipt of this order.
5. Copies of this order be furnished to the
parties free of cost.
6. Parties are directed to collect the sets,
which were provided for Members within
one month from the date of order, otherwise
those will be destroyed.
