Per Shri P.N. Kashalkar – Hon’ble Presiding Judicial Member:
(1) This appeal is filed by the original Opponent against the judgement and award passed by the Consumer Disputes Redressal Forum, Thane Additional District, Navi Mumbai in Consumer Complaint NO.100/2007 decided on 07.02.2008. By the said judgement the District Forum directed original Opponent (Appellant herein) to give possession of Flat NO.312-A to the Complainant within 45 days and also directed to give possession of the shop premises no.2-A to the Complainant also within 45 days and further directed him to pay interest @18% per annum on the amount of `10,55,750/- and directed him to adjust amount of `1,31,000/- for the expenses builder incurred to supply electric meter, water and drainage, legal charges, society registration charges and CIDCO transfer for the amount he had taken in excess from the Complainant. The Opponent was also directed to pay `5,000/- as compensation and `3,000/- towards cost. As such the original Opponent has filed this appeal.
(2) Facts lie in narrow compass. Complainant had booked Flat No.312-A on third floor admeasuring 630 sq.ft. in the Devendra Plaza building being constructed by Opponent who was Proprietor – Om Gururaj Construction, who was to construct a building at Airoli, District Thane. As per Agreement of sale this flat was purchased by Complainant from the Opponent. At the same time by another registered agreement of sale Complainant had also booked shop premises bearing No.2-A in the same building admeasuring 150 sq.ft. For purchase of flat agreement was executed in between the parties on 21.06.2005. The price of the flat premises was fixed at `6,45,750/- and possession of the flat was to be given on or before June, 2005. In respect of Shop premises there was agreement between the parties on 29.12.2005. The price of the shop premises was `2,79,000/- and possession of the shop premises was to be given by the Opponent on or before January, 2006. Complainant had taken bank loan and totally paid an amount of `10,55,750/- by cheque. It was also alleged by the Complainant that he had paid further amount of `4,35,750/- in cash, but despite payment made in advance on or before June, 2005 he was not given possession of the flat or on or before January, 2006 he was not given possession of the shop premises as per agreement by the Opponent. For giving possession he had demanded amount of `2,17,300/- illegally. Ultimately the Complainant sent registered notice through his Advocate. But no reply was sent to that notice and therefore, he filed consumer complaint claiming possession of the flat premises as well as shop premises and also demanded refund of additional amount he had paid to the Opponent.
(3) Opponent filed written statement and admitted that he had received amount of `10,55,750/-, but he denied that he had taken any cash amount from the Complainant. He asserted that at the time of registration of the documents he had paid stamp duty and registration charges on behalf of Complainant. He asserted that the Complainant is required to pay electric meter charges, cable charges, charges for water facilities, drainage charges, legal charges, CIDCO transfer charges, Lease charges, Society Registration charges and on that count for flat premises he had to pay extra amount of `78,000/- and for shop premises he had to pay further amount of `1,00,000/-. He also alleged that as per direction of the Complainant he had made some alterations in the flat for which he had to recover `1,18,000/- from the Complainant. He asserted that though Complainant had paid extra amount of `1,31,000/- he has to recover `2,17,300/- from the Complainant. Since, amount has not paid, he has not given possession of the flat or shop premises to him.
(4) Both the parties filed affidavits and documents. Considering the same the District Forum allowed the complaint and passed impugned order as mentioned in opening paragraph of this judgement. Aggrieved by the said award, the original Opponent has filed this appeal.
(5) We heard submissions of Advocate Mr.U.B. Wavikar for the Appellant and Mr.A. J. Uniyal, Advocate for the Respondent.
(6) We have carefully gone through the evidence adduced by the parties. We have also read in detail both the agreements of sale entered into between the parties in respect of flat premises as well as shop premises. We have noticed that Complainant had paid total amount of `10,55,750/- by bankers cheque and it was the case of the Complainant that he had paid `4,35,750/- in cash as demanded by the builder developer for miscellaneous expenses. What is pertinent to note is the fact that Appellant was supposed to give possession of residential premises by the end of June, 2005, but, he failed to give possession of residential flat or shop before the stipulated date and therefore, the District Forum had ordered under the award to give possession of the flat and shop premises immediately and also directed Appellant to pay interest @ 18% per annum on the amount of `10,55,750/- admittedly received by the Appellant from the Complainant, because by January, 2006 shop premises and by June, 2005 Flat premises were required to be given in possession of the Complainant/Respondent. In fact, flat was to be given in possession before June, 2005 and shop premises was to be given in possession before January, 2006 and even when the complaint was filed, i.e. on 04.10.2007 the Opponent had not given possession of both the premises to the Complainant. We are finding that, in the circumstances, the order passed by the District Forum is appearing to be just and proper. Leave aside the cash amount paid by the Complainant to the Appellant which he mentioned in his own affidavit, we are finding that besides the amount of `10,55,750/- the Complainant had additionally paid an amount of `1,31,000/- to the Appellant. The District Forum rightly directed to adjust the said amount for the expenses incurred by the builder to supply electric meter, water and drainage, legal charges, society registration charges and CIDCO transfer. In view of the default committed by Appellant, we are finding that the impugned order passed by the District Forum is appearing to be just and proper and it does not call for any interference by this Commission sitting in appeal. In fact, when we found before hearing of the appeal that despite receiving full payment in respect of Shop premises the Appellant had not given possession of the shop premises we immediately directed Appellant to give possession of the flat forthwith and we were told that accordingly possession of shop premises was given during the pendency of this appeal. Thus, we are finding that the Appellant is a person has no regard even for the monies received from the flat purchaser who had booked flat as well as shop with the Appellant of Om Gururaj Construction. In any view of the matter, we are finding that the District Forum rightly decided the complaint.
(7) It was brought to our notice by the Counsel for the Respondent that there was no pleading in the written statement that Respondent had agreed to pay additional amount for alteration and if he would not pay additional amount for alteration he would not get possession of the flat. This is a very glaring omission on the part of the Appellant in filing written statement. It was also noticed by us that there was some alteration in the flat, and Appellant had withheld giving possession of the flat as well as possession of shop though in respect of shop there was no alteration. Whatever alteration was made it was made in terms of one chit relied upon by the Appellant, copy of which is appended at page 152 of the appeal compilation. It is dated 08.12.2005. In that chit Laxman Singh Bist, the Respondent informed Om Gururaj Construction that in his flat some work of kitchen and bathroom should be kept incomplete which he would do it later on. It means that in the course of construction of this flat Laxman Singh Bist simply directed Om Gururaj Construction not to do complete finishing of his kitchen and bathroom. He directed to keep it as it is and he assured that he would get the finishing done of kitchen and bathroom later on. This does not mean that he had directed Om Gururaj Construction to do some alterations. In fact, well in advance he had asked Om Gururaj Construction not to do finishing in his kitchen and bathroom. This chit does not spell out that builder developer was requested to do something additional than he was giving to all the flat purchasers. So, there is no document on record to show that Respondent had directed Opponent to do alterations and additions as he alleged in his written statement and for that purpose he had agreed to pay extra amount. This being so, we are finding the contention of the Appellant that he had made alterations or additions in the flat for which he was entitled to get more than `1,18,000/- is without any substance. We are also finding that Appellant had claimed certain amount towards electric meter charges, water charges, society formation charges, legal charges etc., but Respondent had already paid to the Appellant `1,35,000/- extra besides cash amount of `4,35,750/-. This being so, we are finding no substance in the amounts raised by the Appellant in the written statement while contesting the matter. If at all there were any dues payable after 10.02.2006 on which date he received occupation certificate the builder/developer Appellant should have given notice to the Respondent that he had received occupation certificate and Respondent should take possession by paying balance amount. No such notice was given by the Appellant on or after 10.02.2006. We are of the view that once occupation certificate is granted by the local authority the flat purchaser is entitled to get possession of the flat premises and shop premises, but, possession was not handed over to the Respondent on 10.02.2006, but he was forced to drag Appellant in the District Forum even in 2007 when the possession was not given by the Appellant to the Respondent.
(8) It was also rightly argued by the Counsel for the Respondent that under Maharashtra Ownership of Flats Act separate accounts are to be written for each flat and the builder is supposed to maintain the bills, vouchers, accounts to show how much amount is spent for construction of the flat in question. No such account has been provided by the Appellant to the Respondent before he filed consumer complaint in the District Forum. In the circumstances, we are of the view that the Ld.District Forum rightly decided the complaint in favour of the Respondent and there appears to be no merit in the appeal preferred by the original Opponent. In the circumstance, we pass the following order:
O R D E R
(i) Appeal is dismissed.
(ii) Appellant is directed to pay costs of `5,000/- to the Respondent and bear his own costs. This is in addition to the costs awarded by the District Forum in its award.
(iii) Copies of this order be sent to both the parties.
Pronounced on 25th February, 2011.
