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PARASNATH BUILDER & DEV. filed a consumer case on 02 Jan 2024 against SHIRAJ SINGH HADA in the StateCommission Consumer Court. The case no is A/20/777 and the judgment uploaded on 04 Jan 2024.
M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
FIRST APPEAL NO. 777 OF 2020
(Arising out of order dated 17.09.2020 passed in C.C.No.897/2016 by District Commission, Bhopal-2)
PARASNATH BUILDER & DEVELOPER
INDIA PVT. LTD. THROUGH ITS DIRECTOR
PRAMOD KUMAR JAIN,
PLOT NO.5, BANK STREET,
ZONE-II, M.P.NAGAR, BHOPAL (M.P.) … APPELLANT.
Versus
SHIVRAJ SINGH HADA,
S/O SHRI NAND SINGH HADA,
HOUSE NO.255, SHRIRAM COLONY,
HOSHANGABAD ROAD, BHOPAL (M.P.) …. RESPONDENT.
BEFORE :
HON’BLE SHRI A. K. TIWARI : ACTING PRESIDENT
HON’BLE DR. SRIKANT PANDEY : MEMBER
COUNSEL FOR PARTIES :
Shri Mahavir Bhatnagar, learned counsel for the appellant.
Ms. Sangeeta Moharir, learned counsel for the respondent.
O R D E R
(Passed On 02.01.2024)
The following order of the Commission was delivered by A. K. Tiwari, Acting President:
The appeal by the opposite party/appellant Parasnath Builders and Developers Pvt. Ltd (hereinafter referred to as ‘opposite party’) is directed against the order dated 17.09.2020 passed by the District Consumer Disputes Redressal Commission, Bhopal-2 (for short ‘District Commission’) in C.C.No.897/2016 whereby the District Commission has allowed the complaint filed by the complainant/respondent.
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2. Brief facts of the case are that the complainant/respondent had booked a Duplex House No.C-49 admeasuring 560 sq.ft. in Himanshu Mega City, Mandideep, a project launched by the opposite party by initially paying a sum of Rs.21,000/- on 24.04.2013. An agreement was executed between the parties on 10.10.2013, wherein the cost of house including maintenance fee was agreed upon for Rs.10,91,000/-. It is submitted by the complainant that total cost of the house as and when demanded by the opposite party were paid and only the amount is left which is to be paid at the time of possession and the registry of the incomplete house was done in favour of the complainant on 20.02.2014. As per agreement construction and development was to be completed within 24 months from the date of agreement. It is alleged by the complainant that despite getting the desired amount, the opposite party did not complete the construction of the house including outer development of the colony. He therefore filed a complaint before the District Commission alleging deficiency in service on part of the opposite party seeking refund of the amount @ market value of the property along with compensation of Rs.1,50,000/- for mental & physical pain and financial loss with costs of Rs.15,000/-.
3. The opposite party-builder resisted the complaint stating that the project has been completed in time schedule using high quality material.
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The complainant was informed vide letters dated 25.07.2015, 22.05.2016 and 17.09.2016 to make balance payment and take possession but he did not come forward for taking possession after making payment of balance amount. The complainant always delayed in making payments. There has been no deficiency in service on part of the opposite party. It is thus prayed that the complaint be dismissed.
4. The District Commission allowed the complaint directing the opposite party-builder to refund the complainant the total amount paid by him towards questioned house with interest @ 9% p.a. from the date of last deposit till realization within two months from the date of order. Compensation of Rs.20,000/- along with costs of Rs.3,000/- is also directed to be paid within two months from the date of order. Hence this appeal by the opposite party.
5. Heard. Perused the record.
6. Challenging the aforesaid order, learned counsel for the opposite party/appellant argued that the order of the District Commission is totally illegal, incorrect and bad in law and therefore deserves to be quashed. The District Commission has committed material irregularity in not properly appreciating the agreement, reply, documents and affidavit. The District Commission has also failed to appreciate the fact that the registry of
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the house has already been executed in favour of complainant on 20.02.2014. He further argued that the District Commission has erred in law in not appreciating the documents regarding demand letters which reveals that the complainant has not made due payment in time as per schedule which led to delay in development. Despite numerous reminders towards balance payment and to take possession, the complainant paid no heed and delayed the payment deliberately. In fact, the opposite party is entitled to receive Rs.1,81,381/- towards final instalment. He therefore prayed that the order of the District Commission be quashed.
7. Learned counsel for the complainant/respondent supported the impugned order and argued that the District Commission after proper appreciation of evidence on record reached to a conclusion that there was delay in construction, development and delivery of possession of the house, and therefore the District Commission has rightly directed to refund the amount paid with interest to the complainant. She therefore prayed that the appeal deserves to be dismissed. She placed reliance on the decision of Hon’ble Supreme Court in Civil Appeal No. 3182 of 2019 (Kolkata West International City Pvt.Ltd. Vs Devasis Rudra) decided on 25.03.2019.
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8. The complainant has filed his affidavit along with documents C-1 to C-6. On behalf of opposite party, affidavit of Priyank Jain along with 9 documents (Annexure 1 to Annexure 9) have been filed.
9. After hearing learned counsel for the parties and on careful perusal of the record we find that it is an admitted position that agreement to purchase the questioned house was executed between the parties on 10.10.2013 (C-2) wherein in Clause 11, it is mentioned that the construction work will be completed within 24 months. It is also admitted that the registry of the question house was executed in favour of complainant on 20.02.2014 by registered sale deed (C-3).
10. Legal notice (C-5) on behalf of complainant was sent by his learned advocate to the opposite party on 08.10.2016 whereby the opposite party was directed to handover the possession of the questioned house with inner and outer development. In reply to the said legal notice on behalf of opposite party Advocate Shivraj Singh Dangi dated17.11.2016 (Annexure-9) asked complainant’s Advocate to deposit the balance amount of Rs.1,83,432/- with interest and take possession of the house. Further the opposite party vide its letters dated 25.07.2015, 22.08.2016 and 17.09.2016 (Annexure 2,3 &4) asked the complainant to deposit the balance amount and to take possession of the house. Though the complainant challenged
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those letters in his affidavit but in reply to the legal notice it is made clear that complainant be asked to deposit the balance amount and take possession of the house.
11. As per agreement dated 10.10.2013, the construction of the house has to be completed within 24 months i.e. 10.10.2015. From the aforesaid letters dated 25.07.2015, 22.08.2016 and 17.09.2016 (Annexure 2,3 &4) it is clear that the house was completed in July 2015 i.e. within time specified in agreement. The complainant himself did not make payment of balance amount and not take possession of the house. It is also pertinent to mention here that in the legal notice he sought possession of the house whereas in the complaint he made a prayer for refund of the amount.
12. The complainant did not dispute the agreement and registry of the house. It is admitted that registered sale deed of the questioned house was executed in favour of the complainant on 20.02.2014 (C-3) and as per registered sale deed the complainant became the real owner of the house as per Section 54 of the Transfer of Property Act, 1882 and in such a situation how can he made a prayer for refund of the cost from the opposite party when the opposite party has no right on the aforesaid property as per provisions of the Transfer of Property Act. The District Commission has also without considering this important aspect that when the complainant is the
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owner of the questioned house has erred in directing the opposite party to refund the cost of the house with interest.
13. The decision of the Hon’ble Supreme Court in Kolkata West (supra) is not applicable in the facts and circumstances of the present case as in that case, the builder did not offer possession of the questioned house even after 7 years after the extended date of handing over the possession as per agreement as also in that case, no registered sale-deed of the questioned house was executed in favour of the complainant. The facts and circumstances of the instant matter are totally different as here the builder is ready has offered possession of the questioned house after construction within time specified in agreement i.e. within 24 months and registered sale deed has already been executed in favour of complainant.
14. For the foregoing discussion we find that the District Commission has gravely erred in allowing the complaint and directing the opposite party to refund the cost of the house with interest more particularly when the complainant himself has been owner of the house by way of registered sale-deed. In such circumstances, we are of a considered view that the impugned order cannot be sustained in the eyes of law. Therefore, the impugned order is not proper and legal one and is liable to be set-aside. Accordingly, it is hereby set-aside.
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15. In the result, this appeal succeeds and is hereby allowed with no order as to costs. Consequently, the complaint is dismissed.
(A. K. Tiwari) (Dr. Srikant Pandey)
Acting President Member
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