State Consumer Disputes Redressal Commission
Martinho A.M. Pinto, vs 1. Asiatic Estate Development Pvt. ... on 7 September, 2009
THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI-GOA Present: Smt. Sandra Vaz e CorreiaPresiding Member Smt. Caroline Collasso, ... Member Complaint No. 9/2001 Martinho A.M. Pinto, r/o Porvorim, Bardez Goa, through his duly constituted Power of Attorney, Mr. Mario S. Xavier, resident of Salcete Goa. ... Complainant v/s 1. Asiatic Estate Development Pvt. Ltd., through its Managing Partner, Mr. Savio A.J. De Rocha Lobo, having office at First Floor, Camilo Building, Opposite Old Bus Stand, Panaji-Goa. 2. Mr. Savio A.J. De Rocha Lobo, resident of First Floor, Camila Building, Opposite Old Bus Stand, Panaji-Goa. 3. M/s Asiatic Holiday Resorts (P) Ltd., through its partner, Mr. Savio A.J. De Rocha Lobo, having office at Camila Building, Opp. Old Bus Stand, Panaji-Goa. 4. M/s Asiatic Maintenance Services, through its partner, Mr. Savio A.J. De Rocha Lobo, having office at Camila Building, Opp. Old Bus Stand, Panaji-Goa ... Opposite Parties For the Complainant ... Shri J.A. Tuveker, Advocate. and Adv. G. Sarvankar holding for Advocate Medekar present at the time of order. For the Opposite Parties ..Shri V. Fernandes, Advocate And none present at the time of order. Dated:07-09-2009 ORDER
[Per Smt. Caroline Collasso, Member]
1. It is the case of the Complainant that by an agreement dated 11-01-1994, he agreed to purchase flat No.S1 on the 2nd floor of block B4 of the project Parasio de Praia measuring 81.30 sqms at Calangute, Goa from the Opposite Party who is a duly constituted partnership firm. The total consideration for the flat was Rs.5,28,450/- The said consideration was to be paid in eight installments at different stages of the construction and the agreement had referred to the building specifications in the schedule of the agreement. The Complainant states that as per clause 8 of the agreement, the possession of the flat was to be given by the Opposite Party by 31-10-1994. The Complainant states that for the purchase of the flat, he had approached the LIC Housing Finance Ltd. (LHFL) for a loan and had mortgaged the flat in favour of the LHFL. The LHFL offered the Complainant a loan of Rs.3,96,000/- with interest @ 16.5% p.a. for 15 years.
2. The Complainant states that he made all payments to the Opposite Party and had even paid an amount of Rs.32,411/- towards extra items for the said flat. The Complainant states that the Opposite Party requested further payment of Rs.85,000/- for furnishing of the said flat which payment was done vide cheque dated 12-10-1996 drawn on State Bank of India, Panaji. The Complainant states that the Opposite party called upon him to lease/rent back the said flat for two seasons. However, the Complainant did not sign the same and asked the Opposite Party to first hand over possession of the said flat to him. The Complainant also states that by letter dated 07-01-1997, he informed the Opposite Party that he was disappointed with the quality of work done, and listed the defects, requesting the Opposite Party to rectify the same, so as to enable him to take possession of the flat. The Complainant states that he also paid to the Opposite Party the sum of Rs.3,255/- towards Co-operative Society charges and Rs.20,000/- as security deposit. The Complainant states that by letter dated 05-04-1997, he informed the Opposite Party that inspite of Opposite Partys express assurance and though the final installment had already been paid, the flat was incomplete and the defects not rectified. The Complainant vide a letter dated 12-05-1997, once again called upon the Opposite Party to hand over possession of the said flat and to provide electric meter and water connection as promised by the Opposite Party. The Complainant states that he had also called upon the Opposite Party several times to hand over possession, but nothing was heard from the Opposite Party on the subject matter.
3. The Complainant states that on 23-10-1997, the Honble High Court of Bombay passed an interim order in Writ Petition Nos.347/1997 and 349/1997, directing the disconnection of electric supply to the construction project and restrained the Panchayat of Calangute from granting any Occupancy Certificate to the project, till the illegalities were removed and the Health Officer had inspected the area and filed a Report of Compliance. The same order also restrained the Opposite Parties from using the premises for residential/tourism purposes. On 01-12-1997, the Honble Supreme Court dismissed the Special Leave Petitions filed by the Opposite Parties and vacated its earlier order staying the interim directions of the High Court of Bombay at Goa.
4. The Complainant states that in terms of the agreement, the delivery ought to have been given on 31-10-1994 and the stay of the High Court was given on 23-10-1997 and as such, the Opposite Party cannot take shelter of the High Courts order for not giving possession by the due date. The Complainant further submitted that the Opposite Parties themselves have committed illegalities for which the Honble High Court was pleased to take action and the Opposite Party cannot shun the responsibility of giving possession without any fault on the part of the Complainant and thus take advantage of their own illegalizes and deny the rights of the Complainant. The Complainant states that the Opposite Parties have committed deficiency in service and the Complainant is entitled to be compensated for the losses/damages suffered due to non-delivery of the said flat. The Complainant, therefore, prayed for a total amount of Rs.6,45,861/- with 18% interest p.a. from the date of payment till actual payment and further costs of filing this complaint. The Complainant also prayed for a sum of Rs.50,000/- towards compensation for damages on account of mental torture and agony, physical suffering and inconvenience, resulting from non delivery of the flat.
5. Various documents such as the agreement dated 11-01-1994, the LHFL loan documents, various receipts of payments, letters written by Complainant to Opposite Party and orders of the High Court and Supreme Court were annexed.
6. The Opposite Party in reply raised preliminary issues such as delay and latches in filing of the complaint; that the flat premises were purchased with the intention of giving the same on rent back facility and, therefore, the same was for a commercial purpose and the complaint not maintainable on this ground; that clause no.37 of the agreement dated 11-01-1994, states that the parties were entitled to specific performance and, therefore, this Commission has no jurisdiction, that the Complainant had not shown any prima facie case for deficiency in service on the part of the Opposite Party and thus the complaint should be dismissed in limine.
7. We have perused the complaint, written version, affidavits and documents in support filed by both parties.
8. On the aspect of the averment by the Complainant, that the possession of the flat was to be handed over by 11-01-1994, Opposite Party stated that they were entitled to reasonable extensions of time as per clause 8 of the said agreement. The Opposite Party also stated that Complainant failed to make regular payments and made payments after delay of long periods and had thus defaulted at almost all the payments of installments due on the said flat. Opposite Party also contended that the extra items of work contributed to the delay in handing over possession of the said flat.
9. With regard to the payment of Rs.85,000/- Opposite Party stated that it was paid to M/s Asiatic Holiday Resorts (P) Ltd. and this payment is no way connected with the complaint and was irrelevant for the adjudication of the present complaint.
10. Opposite Party states that he had issued a letter dated 30-09-1996 and another letter dated 29-01-1997 intimating the Complainant that the flat was ready for possession and requested him to take possession. Opposite Party states that the Complainant replied stating that he would be able to take possession only in December 1996, when he came down to Goa from Bahrain.
With regard to Rs.20,000/- paid by the Complainant, as Security Deposit, Opposite Party stated that the same was paid to M/s Asiatic Maintenance Services and was thus irrelevant for the adjudication of the present complaint. Opposite Party contended that possession of the flat was handed over to the Complainant on 04-03-1997 and that the keys and physical possession of the flat premises is with the Complainant as of that date. On the aspect of the judgment/order of the Honble High Court, the Opposite Party admitted that the Village Panchayat had not granted Occupancy Certificate, though they applied for the same in accordance with the interim orders of the Honble High Court.
11. In the circumstances, Opposite Party prayed that the complaint be dismissed.
12. On the application by the Complainant to amend the cause title and add M/s Asiatic Maintenance Services and M/s Asiatic Holiday Resorts (P) Ltd., sister concerns of the Opposite Party, this Commission vide order dated 19-03-2004, allowed the application for amendment and the above were made parties to the complaint. Written arguments were filed.
13. The matter was kept pending for a considerable amount of time as both parties had stated that the matter was likely to be settled.
Since the matter could not be settled, the matter was fixed for final orders.
14. Dealing with the preliminary objections by the Opposite Party on the aspect of the delay/latches on behalf of the Complainant, we note that at the time of filing the complaint, the flat in question was not yet handed over to the Complainant and hence the cause of action is a continuing one and, therefore, the issues of limitation does not arise.
15. On the issue of the allegation of the Opposite Party that the flat was intended to be given on rent back facility and hence was for a commercial purpose, we note that there is nothing on record or in the Agreement that the said flat was to be given/used as rent back and thus one cannot assume that the said flat would be used for a commercial purpose. On the aspect that due to clause 37 of the Agreement, the parties were entitled to specific performance and this Commission has no jurisdiction, we are clear that any agreement cannot bar the rights as specifically given under the Consumer Protection Act.
16. We have perused the agreement dated 11-01-1994 and note that possession of the said flat was to be given by 31-10-94. The various payments have been made by the Complainant to the Opposite Party and are evidenced by the receipts on record. The Opposite Party clearly could not hand over possession of the said flat because of the injunctions granted by the Honble High Court and later by the Supreme Court, obviously because of the various illegalities committed by the Opposite Party in the said building. The delay thus is clearly due to the fault of the Opposite Party and we are not inclined to believe that physical possession of the said flat was handed over by the Opposite Party on 04-03-1997. This is clear from the order of the Honble High Court which is dated 23-10-1997, wherein it is noted that no Occupancy Certificate has been obtained by the Opposite Party and, therefore, they could not occupy the said building. Clearly, the Opposite Party could not have handed over the said flat to the Complainant on 04-03-1997 without having obtained the Occupancy Certificate.
17. The Consumer Protection Act has specifically been amended to include housing construction in the definition of service which are not commercial per se but take on the character in which a consumer benefits through a construction of a flat/house. This construction can be achieved by doing it himself or by hiring services of a builder/contractor. The latter being for consideration is definitely a service as defined under the Consumer Protection Act.
18. We are of the opinion that the Complainant has proved his case of deficiency of service on the part of the Opposite Party and thus would be entitled to the reliefs. Since the flat was to be delivered sometime in the year 1994, the delay and consequently the mental agony of the consumer who was deprived of enjoyment of the flat for his residence has to be duly considered. The Honble Supreme Court while going into the issue of grant of compensation for delay in handing over of flat to a consumer in the case of Ghaziabad Development Authority v/s Balbir Singh (2004) 5 SCC 65 had observed that in cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because the party is being compensated by increase in the value of the property he is getting as compared to the cases where only the money is directed to be returned. But in cases where the money is being simply returned then the party is suffering a greater loss in as much as he had deposited the money in the hope of getting a flat or plot and he is deprived of that flat or plot as well as benefit of escalation of price of that flat or plot and therefore the compensation in such cases would necessarily have to be higher.
19. The construction of the said flat is at Calangute a beach side area. It is common knowledge that the price of flats/properties have escalated and appreciated considerably in recent years specially in coastal areas. The Complainant has prayed for the refund of his monies and not for the possession of the flat. Thus the compensation granted would have to be adequate.
20. In the light of the above, we pass the following orders:
(a) Opposite Party is directed to pay to the Complainant an amount of Rs.6,45,861/- with interest @ 12% p.a. from the date of receipt of the respective payment till actual payment is made.
(b) The Opposite Party is directed to pay to the Complainant a sum of Rs.25,000/- towards compensation for mental agony caused due to the delay in non-delivery of the said flat; and
(c) Opposite Party is directed to pay to the Complainant a sum of Rs.5,000/- as costs.
All the above amounts are to be paid within a period of 30 days from the receipt of the order.
Pronounced.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member