State Consumer Disputes Redressal Commission
M/S. Nerkar Construction And ... vs Vijayram Bhaguram Yadav on 3 September, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
CIRCUIT BENCH AT NAGPUR
5 TH FLOOR, ADMINISTRATIVE BUILDING NO. 1
CIVIL LINES, NAGPUR-440 001
First Appeal No. A/01/1653
(Arisen out of Order Dated 21/07/2001 in Case No. CC/00/214 of
District Forum, Chandrapur.)
M/s. Nerkar Construction and Developers,
Bhaushila Gruha Nirman Sahakari Sanstha,
Ballarpur, Through its Proprietor,
Shri B.D. Nerkar,
R/o. 161-A, Laxmi Nagar, Nagpur.
...........Appellant(s)
Versus
Vijayram Bhaguram Yadav,
R/o. Qtr. No. H/362, Old Colonly,
Paper Mills, Ballarpur, Distt. Chandrapur.
...........Respondent(s)
BEFORE:
Hon'ble Mr.S.M. Shembole PRESIDING
MEMBER
HON'BLE SMT.JAYSHREE YENGAL MEMBER HON'BLE MR.N. ARUMUGAM MEMBER PRESENT:
Adv. Mr. Solat ......for the Appellant Adv. Mr. Pugliya ......for the Respondent Judgment (Delivered on 03/09/2012) PER SHRI S.M.SHEMBOLE, HON'BLE PRESIDING MEMBER.
This appeal is directed against the impugned judgment and order dated 21/07/2001 passed by the District Consumer Forum, Chandrapur in Consumer Complaint No.214/2000 allowing the complaint directing the opponent/appellant to pay amount of Rs. 85,000/- with interest at the rate of 18% per annum from the month of March-2000, to the complainant/respondent and further to pay compensation at Rs.1800/-, etc Brief facts giving rise to this appeal are that,
1. Appellant- M/s Nerkar Construction is a builder and developer. Appellant/ opponent No.2 Bhaushila Gruhanirman Sahakari Sansth had proposed to develop its land bearing Kh. No. 31/50, plot No. 1 to 3,4,5,8 and 12 situated at Mouza Ballarpur, District Chandrapur. There was agreement between the developer and the housing society for construction of apartment building. The complainant/ respondent
-Mr. Vijay has purchased the flat bearing No. G-8 from that apartment. On 04/12/1995 there was tri-party agreement between the appellants/ opponents and complainant/respondent.
(For the sake of brevity respondent is hereinafter called as "the Complainant" and appellants as "the Opponents").
2. By tri party agreement the opponents agreed to sell flat No. G-8 to the Complainant for the consideration of Rs.3,00,000/-. On the same day the complainant paid amount of Rs.50,000/- to the opponent-Society and agreed to pay balance consideration as per the schedule given in the said agreement. Thereafter, the complainant paid an amount of Rs.35,000/- to the opponent-M/s Nerkar Builders and Developers. It was agreed between the parties that if the complainant fail to pay balance consideration as per schedule, the opponents will be entitled to cancel the agreement and sell the flat to any 3rd person and after selling the flat to any 3rd person the amount will be refunded by deducting 10% of the total cost of the flat. According to the complainant he could not pay the balance consideration to the opponents. It is submitted that he could not raised the fund as the opponent-Builder failed to procure loan from LIC for him, etc. Any how, he could not raise the funds and therefore, the agreement is cancelled and thereafter the opponents sold the flat to one Mr. Bijia Ballaya vide registered sale deed dated 28/03/2000 but opponents failed to repay the amount as agreed to the complainant despite his demand and thereby committed deficiency in service. Therefore, he filed the consumer complaint before the District Consumer Forum, Chandrapur, claiming refund of Rs.85,000/- with interest at the rate of 18% per annum and further compensation, etc
3. In response to the complaint notice the opponents appeared before the District Consumer Forum, Chandrapur and resisted the complaint vide its written version on the following amongst other grounds:-
It is not disputed that there was tri party agreement. It is also not disputed that the opponents received the amount of Rs. 85,000/- from the complainant. It is also not disputed that as the complainant failed to pay balance amount, the agreement is cancelled and after cancellation of agreement the flat is sold to one Mr. Bija Ballaya vide registered sale deed dated 28/03/2000. However, it is denied that the complainant is entitled to get refund of amount Rs.85,000/-. It is also denied that the complainant is entitled to claim interest, etc. According to the opponents there was no deficiency in service and therefore complaint is not tenable. It is submitted to dismiss the complaint.
4. On hearing both the sides and considering the documents on record District consumer Forum, Chandrapur allowed the complaint and directed the opponents to pay amount of Rs.85,000/- to the complainant with interest at the rate of 18% per annum and also amount of Rs.1800/- towards compensation and cost of proceeding.
5. Feeling aggrieved by the impugned judgment and order the opponents have preferred this appeal.
6. We heard Ld. Counsel for both the sides, perused the notes of arguments submitted by Ld. Counsel for both the sides so also the copy of impugned judgment and order, copy of complaint, written version and tri party agreement.
7. Almost all the facts except the claim of complainant about refund of amount are not disputed. Mr. Solat, Ld. Counsel for the opponents submitted that since there was tri party agreement, the complainant ought to have specifically made separate party to both the opponents i.e. opponent- M/s Nerkar Construction and Society- Bhaushila Gruhanirman Sahakari Sanstha, Ballarpur but the complainant has not made the said housing society as a party to the complain but it is wrongly made the party through Shri B.D. Nerkar who is the proprietor of Nerkar Construction and Developers and not the proprietor of Bhaushila Gruhanirman Sahakari Sanstha. It is submitted that in the absence of proper party the complaint is not tenable, etc. But the District Consumer Forum, Chandrapur without considering this legal aspect wrongly allowed the complaint. Further according to Mr. Solat, Ld. Counsel for the opponents the complainant had initially paid the amount of Rs.50,000/- to said Bhaushila Gruhanirman Sahakari Sanstha and not to M/s Nerkar Construction and Developers and therefore, M/s. Nerkar Construction and Developers is not liable to repay the amount of Rs. 50,000/- to the complainant. However, he has fairly conceded that Mr. B.D. Nerkar who is Proprietor of M/s Nerkar Construction and Developers has received the amount of Rs.35,000/- only from the complainant for the purpose of construction.
8. We find little force in the submission of Mr. Solat, Ld. Counsel for the opponents. Firstly, because though the complainant has wrongly shown Mr. B.D. Nerkar as a proprietor of the Bhaushila Gruhanirman Sahakari Sanstha, the fact is that the complainant has made party to both i.e. M/s Nerkar Construction and Bhaushila Gruhanirman Sahakari Sanstha who are party to the tri party agreement. Moreover, though Mr. Soalt, Ld. Counsel for the opponents submitted that the complainant has not made the President and Secretary of the Bhaushila Gruhanirman Sahakari Sanstha, Ballarpur as necessary party, such objection was not taken before the District Consumer Forum, Chandrapur and there is also no specific pleading in the written version filed by the opponents before the District Consumer Forum, Chandraur. However, Mr. Solat, Ld. Counsel for the opponents submitted that this point is being legal it can be raised at any stage of the proceedings. We do agree for the said point of the Ld. Counsel for the opponents but it is settled law that such preliminary objection should be raised at the initial stage of the proceeding.
9. Moreover, though the complainant has not specifically made party to the said Bhaushila Gruhanirman Sahakari Sanstha the complainant has made his claim against both the parties i.e. M/s. Nerkar Construction & Developers and Bhaushila Gruhanirman Sahakari Sanstha, Ballarpur. Therefore, in the summary proceeding the complaint can not be dismissed on such minor technical ground. Therefore, the argument advanced by Ld. Counsel for the opponents on this ground, can not be sustained.
10. Further, Ld. Counsel for the appellants/opponents submitted that M/s Nerkar Construction and Developers received only amount Rs.35,000/- and therefore, its proprietor Mr. B.D. Nerkar is not liable the refund amount excluding Rs.35,000/- to the complainant. From the copy of deed of agreement it is obvious that initially amount of Rs.50,000/- was paid by the complainant to the Bhaushila Gruhanirman Sahakari Sanstha but when we perused the entire documents and copy of complaint it appears that both the opponents received the amount of Rs.85,000/- from the complainant and therefore they both are jointly and severely liable to refund the amount to the complainant as per the terms and conditions of the agreement.
11. However, Mr. Pugliya, Ld. Counsel for the complainant submitted that since it is admitted fact that the opponents have received the amount Rs. 85,000/- from the complainant and as per agreement complainant failed to pay the balance amount, opponents are liable to refund the entire amount of Rs.85,000/- with interest. But we find little force in this submission of Ld. Counsel for the complainant, because the bare glance at the copy of agreement it manifests that it was agreed by the opponents to repay the amount by deducting 10% of the agreed total cost of the flat. Undisputedly, the total agreed cost of the flat is 3,00,000/- and the complainant has paid total amount of Rs.85,000/- to the opponents. Therefore, the complainant would be entitled to get the refund of amount of Rs.85,000/- after deducting 10% of the total cost of the flat which would amount to Rs.30,000/-. Therefore, the complainant would be entitled to get refund of Rs.55,000/- out of Rs.85,000/- which he has paid to the opponents.
12. As far as the claim of complainant about amount of interest is concerned the complainant has claimed interest at the rate of 18% per annum on entire amount of 85,000/-. However, since the complainant is entitled to get refund of Rs.55,000/-, he will be entitled to interest on Rs.55,000/- only from the date when the flat is sold to one Mr. Bija Ballaya vide registered sale deed dated 28/03/2000, by cancelling the agreement as per terms and condition of deed of agreement.
13. However, Mr. Solat, Ld. Counsel for the opponents submitted that the complainant is not entitled to get any interest as there is no such agreement. According to him as per the agreement it was agreed to refund the amount without interest in the event of cancellation of the agreement.
14. True it is that there is no such agreement for payment of interest in the event of refund of the amount to the complainant. But since undisputedly the opponents failed to repay the amount to the complainant after selling the said flat to 3rd party Mr. Bija Ballaya vide registered sale deed dated 28/03/2000 and since then they utilised and withheld the amount of complainant with them, in our view, the complainant is entitled to get interest on the amount for which he is entitled to get refund i.e. 55,000/-. As far as rate of interest is concerned, considering the prevailing rate of interest of Nationalised Banks or any commercial bank on which loan is advanced for commercial purpose, to our knowledge the rate of interest was 18% per annum. Therefore, the District Consumer Forum has rightly awarded the interest at the rate of 18% per annum.
15. For the forgoing reasons the appeal deserves to be partly allowed by allowing the complainants' claim at Rs.55,000/- instead of Rs.85,000/- with interest.
Hence, the following order.
ORDER Appeal is partly allowed and impugned judgment and order modified as under:-
i.
Opponent No. 1&2 shall jointly and severally pay to the complainant amount Rs.55,000/- with interest at the rate of 18% per annum with effect from 28/03/2000.
ii. Having regard to the peculiar facts of the case the parties are directed to bear their own cost.
Dated:- 03/09/2012.
[ Hon'ble Mr.S.M. Shembole] PRESIDING MEMBER [ HON'BLE SMT.JAYSHREE YENGAL] MEMBER [ HON'BLE MR.N. ARUMUGAM] MEMBER ay