State Consumer Disputes Redressal Commission
M/S Dev Developers vs Mrs Prachi Prasad Walawalkar on 23 August, 2019
[A/16/2959 & A/16/2960 and A/17/188 & A/17/189]
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
FIRST APPEAL NO.A/16/2959 A/16/2960 AND
FIRST APPEAL NO.A/17/188 and A/17/189
A/16/2959
M/s DEV DEVELOPER'S Partners
1. Anant alias Anil Narayan Malvankar
1869 B. Pitrunivas, Malshed Lane,
SomwarPethMalvan,
Tal.Malvan, Dist.Sindhudurga.
2. AnujaAnantMalvankar
1869 B. Pitrunivas, Malshed Lane,
SomwarPethMalvan,
Tal.Malvan, Dist.Sindhudurga.
...........Appellant(s)
Versus
PRASAD PANDHARINATH WALAWALKAR
Madure, Tal.Sawantwadi,
Dist.Sindhudurga. ............Respondent(s)
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A/16/2960
M/s DEV DEVELOPER'S Partners
1. Anant alias Anil Narayan Malvankar
1869 B. Pitrunivas, Malshed Lane,
SomwarPethMalvan,
Tal.Malvan, Dist.Sindhudurga.
2. AnujaAnantMalvankar
1869 B. Pitrunivas, Malshed Lane,
SomwarPethMalvan,
Tal.Malvan, Dist.Sindhudurga.
...........Appellant(s)
1
[A/16/2959 & A/16/2960 and A/17/188 & A/17/189]
Versus
PRACHI PRASAD WALAWALKAR
Madure, Tal.Sawantwadi,
Dist.Sindhudurga.
Through Constituted Attorney
Prasad PandharinathWalawalkar ............Respondent(s)
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A/17/188
MRS.PRACHI PRASAD WALAWALKAR ...........Appellant(s)
Madure, Tal.Sawantwadi,
Dist.Sindhudurga.
Through Constituted Attorney
Prasad PandharinathWalawalkar
Versus
M/s DEV DEVELOPER'S Partners
1. Anant alias Anil Narayan Malvankar
1869 B. Pitrunivas, Majid Lane,
SomwarPethMalvan,
Tal.Malvan, Dist.Sindhudurga.
2. AnujaAnantMalvankar
1869 B. Pitrunivas, Majid Lane,
SomwarPethMalvan,
Tal.Malvan, Dist.Sindhudurga.
............Respondent(s)
-----------------------------------------------------------------------------------------------------
A/17/189
PRASAD PANDHARINATH WALAWALKAR
Madure, Tal.Sawantwadi,
Dist.Sindhudurga............Appellant(s)
Versus
M/s DEV DEVELOPER'S Partners
1. Anant alias Anil Narayan Malvankar
1869 B. Pitrunivas, Majid Lane, ............Respondent(s)
2
[A/16/2959 & A/16/2960 and A/17/188 & A/17/189]
SomwarPethMalvan,
Tal.Malvan, Dist.Sindhudurga.
2. AnujaAnantMalvankar
1869 B. Pitrunivas, Majid Lane,
SomwarPethMalvan,
Tal.Malvan, Dist.Sindhudurga.
BEFORE:
JUSTICE A.P.BHANGALE, Hon'ble PRESIDENT
DR.S.K.KAKADE, Hon'ble MEMBER
PRESENT:
Complainants present in person
Advocate Shri.AbhayParab for Opponent
(M/s DEV DEVELOPER'S Partners)
COMMON ORDER
Per Dr.S.K.Kakade, Hon'ble Member
1. Being aggrieved by the judgement and order in the Consumer Complaint no. 46 of 2014, by learned Sindhudurg District Consumer Disputes Redressal Forum, Sindhudurg, dated 16thSeptember 2016, partly allowing the complaint and awarding compensation to complainants for less built up area, the opposite party, Dev Developers filed two separate appealsagainst both the complainants (FA no.A/16/ 2959 and FA no. A/16/2960), while original complaints also filed cross appeals (FA no. A/ 17/188 and FA no. A/17/ 189) against the same order of District Consumer Forum. Since all four appeals were against the same order of the District Consumer Forum, they were heard together. The brief facts of the compliant are as follows,
2. Facts necessary for deciding this appeal are as under- The complainants belong to Malwan, TalukaMalwan, and District Sindhudurg, who booked flats in Nageshwar Park complex situated in 3 [A/16/2959 & A/16/2960 and A/17/188 & A/17/189] Bangiwada, survey no.246, Hissa no. A B and 7 developed by Dev developers, opposite party in the complaint. Complainants Prasad PandharinathWalawalkar booked flat no. 206 and Mrs. PrachiPrasad Walawalkar flat no. 205 in the West wing, second floor of the said complex. The consideration agreed for flat no. 205 was Rs.10, 96, 368/- (Rs. Ten Lakh Ninety Six Thousand Three Hundred Sixty Eight only) and that agreed for flat no.206 was Rs.11, 00, 983/- (Rs.Eleven Lakh Nine Hundred Eighty Three only)Dev developers agreed to give possession within 18 months and hence agreement for sale was executed for both the flats in the name of complainants on 16thJuly 2010. The same was registered on 1st October 2016. The complainants approached District Consumer Forum for delay in possession of flats and less area of both flats allotted by the Dev developers. District consumer forum, the complainant prayed for compensation for delayed possession, house rent for 35 months and compensation formental agony and harassment.
3. The opposite party opposed the complaint by filing written version, stating reasons for delayed possession. District Consumer Forum after hearing both parties decided in favour of complainants and declared that opposite party is deficient in services and awarded compensation to the complainant. Aggrieved by the judgement and order by District Consumer Forum, both the parties approached State Consumer Disputes Redressal Commission, Maharashtra at Mumbai questioning validity and legality of the order.
4. Considering the rival contentions of both parties, submissions made before us, considering record and scope of the appeal, following points arise for our determination and our findings thereon are noted against them for the reasons given below:
POINTS:4
[A/16/2959 & A/16/2960 and A/17/188 & A/17/189] Sr.No. Point Findings
1. Whether the complaint was barred by limitation? No
2. Whether Appellants, original complainants have Yes proved that there was deficiency in service/ unfair trade practice by the opposite parties?
A. By not handing over legal possession of the Yes flats on agreed date?
B. By offering less built up area than agreed in Yes the Agreement to sale?
C. By not allotting car parking space to the Yes complainants?
D. By asking for charges towards VAT, No Service Tax and other legal charges?
E. By asking for escalation price of 20% in Yes addition to total consideration?
2. Whether the order of District Consumer Forum is Yes correct, just and Legal?
3. Whether the Appellants- original complainants Yes are entitled for compensation, rent Rs.5000/- per month as prayed?
4. What Order? As per the final order REASONS:
1. As to POINT No.1 Limitation 5 [A/16/2959 & A/16/2960 and A/17/188 & A/17/189] Learned advocate for the appellant, Dev developers in appeal nos. 2959 and 2960, submitted that, the agreement for sale of both flats was executed on 16thJuly 2010 while the same was registered on 1stOctober 2010. As per the provision in section 24(A) of the Consumer Protection Act 1986, the limitation period of two years from the cause of action, date on which agreement was signed, was already over, when the complaint was filed on 28thNovember 2014. Hence the complaint was time barred and needed to be dismissed by the District Consumer Forum. Advocate for respondents, original complainants opposed this contention and submitted that, since the possession was not given by the developers till the date of filing of complaint, there was "continuous cause of action"
and hence the complaint was well within the limitation period. We agree and endorse this view as this is the legal position. Complaint was filed well within limitation period and not barred by limitation. We answer the POINT No.1 as NEGATIVE.
2. As to POINT No.2 Deficiency in service / Unfair trade practice The original complainant and power of attorney holder Prasad Walawalkar submitted that there was delay in completion of the building and offering the legal possession of the flats by the opposite parties, Dev developers. The District Consumer Forum has rightly considered these facts and came to the conclusion there was deficiency in service by opposite party. Additionally the built up area mentioned in the agreement for sale of both flats, is not matching with actual built up area. This finding is based on the report and affidavit from expert engineer, YashwantNaik, dated 3rdOctober 2015. It was the contention of complainant that the demand for escalated price 20 % for the same flats was unreasonable and complainants have already paid all necessary consideration, except the amount that is to be paid at the time of 6 [A/16/2959 & A/16/2960 and A/17/188 & A/17/189] possession of the flats as per the agreement for sale. Hence it was contended that the opposite parties, Dev Developers indulged in unfair trade practice and deficiency in service. He prayed for enhancement of the compensation. Advocate for opposite party and appellant in appeal number 2959 and 2960, submitted that the delay for completion of the building was due to storm "Fiona", because of which further construction not possible and got delayed. He prayed for dismissal of the complaint and the appeal by complainant, allowing the Appeal by the opposite party, Dev Developers.
3. As to POINT No.2 (A)Possession on agreed date As per the agreement for sale of flats the developer agreed for completion and possession of the flats, within 18 months of the date of agreement that was registered on 1stOctober 2010. In the commencement certificate dated 17thJuly 2009, the permission was for stilt plus two floors. Page number C 181. As per the letter submitted on record, about refusal of permission for extra upper floors from Chief Officer and Development Officer of Malvan Municipality dated 27thJune 2012 (C 217), it was very much clear that the builder was very interested in seeking permission for building further upper floors. Also page 218, there is another letter on record from Chief Officer of Malwan Municipality dated 12thJanuary 2014, informing and warning the developers that they were using the building without occupancy certificate and hence the permission of construction can be cancelled. Advocate for the Builder submitted the copy of application to the authority at Malwan Municipality, seeking completion and Occupancy certificate, 17thJanuary 2014. It was contended by the advocate for developer that occupancy certificate was obtained in June 2015. Considering the discussion above, it is very much clear that the delay in construction and completion of the building was due to delay in obtaining permission for additional floors on the same 7 [A/16/2959 & A/16/2960 and A/17/188 & A/17/189] building and hence due to pursuing of personal interest by the developer. We are of the opinion that there was deficiency in service, in not handing over the legal profession in time has agreed in the agreement for sale of flats. Hence we answer POINT no.1 (A) as AFFIRMATIVE.
4. As to POINT No.2 (B) Less Built up area The complainant invited our attention to the built up area mentioned in the agreement for sale, for flat no. 205 it was 843.36 sq.ft and for flat no. 206 it was 846.91 sq.ft. As per the affidavit of the expert engineer YashwantNaik, the same area measurement came to for flat no. 205 it is 690.36 sq.ft and for flat no. 206 it is 693.15 sq.ft. Obviously with the affidavit from the expert engineer, it is clear that the built up area of both flats is less as agreed upon in the agreement for sale. The opposite parties, Dev Developers have not filed any document contradicting this affidavit norcould they point out any document from compilation, confirming their contention. With this discussion, we are of the opinion that the Developers have definitely erred in allotting less area of both flats for which the buyer, original complainant needs to be compensated. Hence we answer the POINT no.1 (B) as AFFIRMATIVE.
5. As to POINT No.2 (C) Allotment of car parking space We accept the contention of the complainant that car parking should be assigned by the developer to each flat as per the MOFA Act and the same cannot be sold to the flat purchaser as the provision under MOFA (Maharashtra Ownership of Flats Act 1963). Hence by selling the car parking to the flat purchaser, the Developer has followed unfair trade practice. And hence we answer the POINT no. 1 (C) as AFFIRMATIVE.
6. As to POINT No.2 (D)VAT, Service Charges and other legal Charges 8 [A/16/2959 & A/16/2960 and A/17/188 & A/17/189] The complainants submitted that, the builder/ developer asked for payment for the VAT and other taxes, legal charges to be paid by the flat purchaser. This is an accepted legal position that the taxes and legal charges are to be borne by the flat purchaser. We don't find any illegal demand by the developer. Hence by asking for legal charges and VAT and other taxes the builder/ developer has not committed any unfair trade practice. Hence we answer the POINT no. 1 (D) as NEGATIVE.
7. As to POINT No.2 (E) Escalation price additional to total Consideration It was contended by the complainant that the builder /developer has not brought any document showing the reason for escalation of price of the flats by 20 %. Mere communication to flat purchasers asking to pay at escalated rate is not sufficient. We also don't find any reason for enhanced demand of escalated price and there is no document on record at the same time the learned advocate for builder/ developer could not satisfy this court about the reasons for price escalation. Hence by asking escalated price without completing the project in time amounts to unfair trade practice. Hence we answer the POINT no. 1 (E) as AFFIRMATIVE.
8. As to POINT No.3Order of District Consumer Forum We have gone through the judgment and order of the learned District Consumer Disputes Redressal Forum, Sindhudurg, dated 16th September 2016. The Forum has considered all facts and necessary documents and evidence put across by both the parties. It has rightly held that the builder/ developer is guilty of deficiency in service and unfair trade practice. We find the order is just, legal and reasonable, except that the complainant needs to be awarded compensation on the basis of monthly rent as per the guidance of Hon'ble Supreme Court discussed in next Para.
9[A/16/2959 & A/16/2960 and A/17/188 & A/17/189]
9. As to POINT No.4Entitlement for compensation The original complainant submitted that, as per the directions of Hon'ble Supreme Court, in the matter of Ghaziabad Development Authority vs Balbir SinghAppeal (Civil) no. 7173 of 2002, decided on 17th March 2004, the compensation for loss due to delayed possession the flat should be calculated as directed by the authority. The relevant Para of the ruling is as follows "It is therefore necessarily has to be based on of finding of loss or injury and has to correlate with the amount of loss or injury. Thus the forum or the Commission must determine that there has been deficiency in service and/ or misfeasance in public office which has resulted in loss or injury. No hard and fast rule can be laid down, however a few examples would be where allotment is made, prices received/ paid but possession is not given within the period set out in the Brochure. The Commission/ Forum would then need to determine the loss. Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on the basis of rent actually paid by him. Along with Re compensating the loss the commission/ Forum may also compensate for harassment / injury both mental and physical". With the clear guidelines from Hon'ble Supreme Court, and with the establishment of deficiency in service we find it proper to award additional compensation to the complainant as prayed for and hence it is just and proper to award Rs. 5000/- per month as additional compensation from the agreed date of possession to the actual date of possession. Hence we answer POINT no.4 as AFFIRMATIVE.
10. As to POINT No.5 Final Order 10 [A/16/2959 & A/16/2960 and A/17/188 & A/17/189] In view of the above discussion in POINTS no. 1 to 4, we confirm the order of the learned District Consumer Forum with modification and pass the following order.
ORDER
1. The Appeals no. A/16/2959 and no. A/16/2960 are dismissed with costs of Rs. 25, 000/- (Rs. Twenty Five Thousand only) to be paid by the Appellants to the respondents subject to following modification.
2. The Appeals no. A/ 17/ 188 and no. A/17/ 189 are hereby allowed partly with no order of the costs in terms as under.
3. The order of the District Consumer Disputes Redressal Forum is hereby modified as follows. The developer/ builder is hereby directed to pay Rs.5000/- per month to each of the complainants i.e. Mr.Prasad Walawalkar and Mrs.Prachi Walawalkar from agreed date of possession, March 2012 till the actual legal possession with interest @ 9 % per annum failing which it will be 12 % per annum till realization. Rest of the order of the District Consumer Forum stands confirmed. The order as to additional payment shall operate upon expiry of 60 days.
4. Free certified copies of the order be furnished to the parties forthwith.
Pronounced Dated 23rdAugust 2019 [JUSTICE A.P.BHANGALE] PRESIDENT [DR.S.K.KAKADE] MEMBER 11