Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
These two appeals are cross appeals, one filed by complainant and another filed by opponent and hence, they are disposed of by this common order.
2. Undisputed facts are that there was multiparty agreement in respect of flats constructed for economically poor section of the Society on a land belonging to Lokshahir Annabhau Sathe Magasvargiya Sanstha Maryadit, Dhanori, Pune. The complainant-Jaywant (hereinafter referred to as ‘complainant’) is one of the allottees of a flat in respect of flat No.14, building No.C. Total price agreed was `3 Lakhs which was payable directly to the developer/builder-M/s.Sankalp Constructions i.e. opponent (hereinafter referred to as ‘builder’). The possession was also to be received directly from the builder by the complainant. This particular registered multiparty agreement is dated 08/06/2005 and both the parties to this lis i.e. complainant and the builder are one of the signatories to the same.
3. It is alleged by the complainant that he had paid in all `1,55,000/- by way of consideration and he is willing to pay the balance consideration at the time of possession of the flat. He claimed possession of the flat which was earlier agreed to be delivered within 14 months from the date of agreement. The builder set out a defence about termination of the agreement by issuing notice dated 21/08/2007 since the complainant failed to pay the balance consideration. The Forum uphold the case of the complainant and by the impugned order dated 29/09/2008 allowed the consumer complaint and directed the builder to hand over possession to the complainant on receipt of balance of consideration which was payable within a stipulated time. Not satisfied with the said order, the complainant preferred an appeal bearing No.1527/2008 while the builder preferred an appeal bearing No.1517/2008. The original complaint bearing No.137/2007 was filed on 31/08/2007, Shri Jaiwant Rambhau Gaikwad V/s. Sankalp Constructions, and stood disposed off by the impugned order passed by Addl. District Consumer Disputes Redressal Forum, Pune (‘the Forum’ in short).
4. Heard both sides. Perused the record.
5. There is only one issue that arise for consideration in the present dispute considering the challenge made by the builder in appeal No.1517/2008, namely, whether there is a valid termination of contract dated 21/08/2007 by the builder since the complainant failed to pay the balance consideration in spite of demand raised. As per the pleadings, there is also a dispute about total consideration received, but at the time of appeal it is not disputed that only `1,55,000/- as alleged by the complainant was received towards part consideration out of total agreed consideration of `3 Lakhs.
6. The agreement dated 08/06/2005 is not in dispute. Para 2.1 of the said agreement stipulates payment of consideration stage-wise, as per the stage of the construction. It also stipulates that certificate of the Architect for completion of the construction stage shall be the proof for the payment by the purchaser of the flat. It is the case of the complainant that without complying with such requirement, demands were raised by the builder and as such it cannot be said to be a valid demand and as such he is not a defaulter. The builder tried to submit at the stage of appeal that on 15/05/2006 and 18/01/2007 it had raised demands asking for balance of consideration from the complainant. However, referring to his written version, we find no such statement about raising such demands. Therefore, when the builder tried to introduce this new piece of evidence at the stage of appeal and further finding that no special circumstance akin to one mentioned in the Order XLI Rule 27 of Code of Civil Procedure, 1908 exists to allow any such request to lead additional evidence, we find it proper to reject such request of the builder. Though the provisions of Order XLI Rule 27 of Code of Civil Procedure, 1908 are not made specifically applicable to the Consumer Protection Act, 1986, still the principle governing under those provisions for the purpose of the issue raised before us to lead additional evidence in appeal (the application is made referring to that particular provision), it will be just and appropriate to apply the same.
7. Thus, there is no reason to disbelieve the complainant when he said that no such demand complying the requirement of certificate of Architect about completion of stage, were raised and therefore, he is not a defaulter.
8. If the complainant is not a defaulter or committed any default, further referring to clause No.6.6 of the agreement, it could be seen that there exists no ground for the builder to terminate the contract. Therefore, such action of alleged termination on 21/08/2007 on the part of builder being arbitrary would not result into any legal effect in termination of the contract. We uphold the finding of the Forum on this count. Thus, we find the appeal filed by the builder is devoid of any substance.
9. Coming to the appeal filed by the complainant, at the time of arguments, only point tried to be canvassed before us is that direction given as per the impugned order as contained in operative part sub-clause (2) are not adequate. We cannot subscribe to such contention of the complainant. Said part of the impugned order is quite clear directing the complainant to pay the balance consideration of `1,45,000/- within four weeks and thereafter within two weeks the flat fully ready with all amenities, as agreed, was to be put in possession of the complainant and thereafter, a conveyance was required to be executed. It may be pointed out that the agreement itself provides for execution of conveyance and then final conveyance in favour of the Society. Therefore, the impugned order cannot be faulted with. It is not ambiguous and it also cannot be said that it left something which needs to have clarified or granted by the Forum.
10. Though not in appeal memo, the Learned Counsel appearing for the complainant tried to advance submission for compensation for delayed possession. In the instant case, what we find is that though witnessed by multiparty agreement of the parties, all were not made party in this consumer complaint. However, Lokshahir Annabhau Sathe Magasvargiya Sanstha Maryadit (the Sanstha, for brevity) had some controlling stakes on subject matter but it is not made a party. Ultimate conveyance is to be executed in favour of said Sanstha. There is a dispute about balance of consideration paid and whether additional demands made which were approved by the Sanstha were legitimate and the effects of non-payment thereof on the contract before us. Further, complainant would naturally get benefits of escalation of prices of the property. Under the circumstances, we find no reason to accept contention of the complainant to grant compensation for alleged delayed possession. Thus, in the result, we find that the appeal filed by the complainant is also devoid of any substance.
11. For the reasons stated above, we hold accordingly and pass the following order :-
-: ORDER :-
1. Both appeals stand dismissed.
2. In the given circumstances, both the parties are left to bear their own costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 11th January 2012.
