State Consumer Disputes Redressal Commission
M/S. Raaj Builders & Developers Through ... vs Sanjay Tulshiram Jadhav on 29 September, 2015
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FA/04/2014
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI CIRCUIT BENCH AT AURANGABAD.
Date of filing : 24/12/2013
Date of order : 29/09/2015
FIRST APPEAL No : 04 of 2014.
IN COMPLAINT CASE NO : 17 OF 2013.
DISTRICT CONSUMER FORUM: AURANGABAD.
M/s.Raj Builders & Developers
Through its Partner
Mr.Parasmal Mangalchand Jain,
R/o.Plot No. 89-N-2 Cidco,
Aurangabad 431 003. APPELLANT
VERSUS
Sanjay Tulshiram Jadhav
R/o.Building No A-1 Flat No.401,
Raaj Vijay Kanchanwadi,
Aurangabad 431 001. RESPONDENT
Coram : Mrs.Uma Bora, Hon'ble Presiding Judicial Member.
Mr.K.B.Gawali, Hon'ble Member.
Present : Adv.Shri.A.P.Malani for the appellant.
Respondent in person.
JUDGEMENT
( Delivered on 29 th Sept 2015 ) Per. Mr.K.B.Gawali, Hon'ble Member.
1. This appeal is filed by the original opponent against the judgment and order dated 27/11/2013 passed by the Dist. Consumer Forum Aurangabad in CC.No. 17/2013 whereby 2 FA/04/2014 appellant / opponent is held liable for deficiency in service. The respondent is the original complainant. For better understanding the appellant who is a builder is hereinafter termed as the "opponent builder" and the respondent as the "complainant".
2. The brief facts giving rise to this appeal are as under:
That, the complainant had purchased flat No.401 from building No.A-1 by name "Raj Valley" situated at Kanchanwati Aurangabad for the total consideration of Rs 13,21,000/-. Out of this consideration he paid Rs 3,71,000/- on his own and the balance Rs 7,50,000/- by way of loan from the bank. The main grievances of the complainant against the opponent builder are:
i. The opponent builder failed to from the society as per Sec. 10 of the flat owners Act 1963 though he paid Rs 10,000/- for the same.
ii. There are cracks to the internal plaster of his flat. That the opponent builder had not done proper curring of the plaster and therefore crakes were developed.
iii. Loss due to delayed possession. It is contended by the complainant that as per the agreement to sale dated 24/12/2010 the possession was tobe given on or before 30/06/2011 but actual possession was given in the month of April 2012 i.e. 10 months delay.3
FA/04/2014 iv. Excess recovery of legal fees of Rs 5000/- Recovery of excess amount towards electric meter charges i.e. Rs 20,000/-. It is contended by the complainant that he made correspondence by way of letter dated 14/08/2012 and 05/10/2012 demanding compensation towards the deficiency in service as stated above. However, there was no response. Hence he filed complaint before the Dist. Consumer Forum seeking direction to the opponent builder to pay him compensation of Rs 2,04,698/- towards financial loss in the from of rent paid to the alternative accommodation, readmission expenditure of his children and the interest on the amount paid, which was caused due to delay in possession. In addition it was sought to refund amount of Rs 9400/- which was in excess as required for society formation and further refund of Rs 15,800/- towards excess amount of electric meter.
3. The opponent builder appeared before the Dist. Consumer Forum and contested the claim of the complainant by way of his written version. Though the opponent builder admitted the sale of said flat for Rs 13,21,000/- denied the other adverse averments of the complainant. It was contended that as per the instruction of the complainant extra work for the amount of Rs 65,213/- was carried out but he avoided to pay the same. It is submitted by the opponent builder that he had executed the declaration to the Registrar informing to the Registrar of the Co-operative Societies as per the provisions of the Maharashtra Apartment Ownership Act, 4 FA/04/2014 1970 it was not binding upon him to form cooperative society. It was further submitted that the complainant never paid Rs 10,000/- towards formation of the society. As regard the internal crack to the plaster the Civil Engineer of the opponent builder visited the said flat but the tenant of the same did not allow him inside for inspecting the flat. As regards the allegation of delay in possession, it is submitted by the opponent builder as per the agreement to sale dated 24/12/2010, the complainant was required to make payment of remaining amount of Rs 9,50,000/- within four months i.e. upto April 2011. However, Rs 1,50,000/- were paid on 29/06/2011 and balance Rs 7,50,000/- were paid on 29/12/2011. Moreover, the last installment of Rs 50,000/- was paid on 21/04/2012 i.e. after the possession of handedover to the complainant. As regards the allegation of excess recovery of legal fees and electric charges the same is denied in toto. It is thus contended by the opponent builder that the complainant has made the false and baseless complaint and same may be dismissed.
4. The Dist. Consumer Forum after considering the evidence on record and after hearing the parties has partly allowed the complaint and directed the opponent builder to pay compensation of Rs 25,000/- towards the over all loss of the complainant and Rs 5000/- as compensation towards mental agony and Rs 1000/- as the cost of the complaint. It is held by the Dist. Consumer Forum that as per the terms of the agreement to sale it was the responsibility of the opponent builder to hand over the possession 5 FA/04/2014 of the flat within six months i.e. upto June 2011. The complainant had paid Rs 12,71,000/- out of the total consideration of Rs 13,21,000/- upto 29/12/2010. However, the possession was delayed. Therefore the complainant by expecting the possession in the month of June 2011 had obtained transfer certificate of his children from earlier school but the possession was delayed causing extra financial burden of payment of rent for alternate accommodation for almost the period of one year and also had to spent on admission process of his children. It is further held that though the actual expenditure for electric connection comes to near about Rs 4200/-, an amount of Rs 20,000/- was collected from him without giving receipt. Further amount of Rs 10,000/- was also be recovered from the formation of the society. On all these counts the opponent builder was held guilty of deficiency in service and accordingly the impugned judgment and order is passed.
5. Aggrieved by the said judgment and order the present appeal is filed in this Commission which came tobe finally heard on 18/09/2015. Adv.Shri.A.P.Malani for the appellant was present whereas respondent Shri. Sanjay Jadhav was present in person. Adv.Shri. Malani has already submitted written notes of arguments. We also heard Adv.Shri.Malani and the respondent in person finally and the matter came tobe adjourned for judgment and order.
6. We have carefully gone through the record placed before us and thoughtfully considered written notes of arguments as 6 FA/04/2014 submitted by both the parties and also oral submissions as made by the Adv. Shri. Malani for the appellant and as made by the respondent in person.
7. The only point which comes for our consideration is whether the complainant has proved that the opponent builder has committed deficiency in service and unfair trade practice. As mentioned above the complainant has alleged that the opponent builder has committed deficiency in service on different grounds that the opponent builder failed to form the society, the internal plaster had developed cracks due to insufficient curring. Possession of flat was given at belated stage and excess amount was collected towards legal fees and electrical meter charges. However, as contended by the opponent builder as per the provisions of Maharashtra Apartment Ownership Act 1970 he had made declaration and therefore he was not liable to form the society. However, even if is presumed that as per the Sec. 10 of the Maharashtra Ownership Flat Act 1963, the opponent builder was responsible for the formation of the society it being a common claim it was tobe made by the flat holders of the said building. As per the Sec. 12 (1) (c) of the Consumer Protection Act when there are more consumer having the same interest the representative complaint can be filed subject to permission of the Dist. Consumer Forum. In the present case, the complainant cannot therefore make a said claim alone and hence the same cannot be considered.
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8. As regards the development of cracks to the internal plaster it appears that the opponent builder had sent his engineer for inspection of those cracks but the tenant residing in this flat did not allow to verify those crack and therefore he could not repair the same. The complainant has not countered this contention of the opponent builder by way of its additional affidavit and hence this claim cannot be also considered.
9. As far as allegation regarding delayed possession is concerned we find that as per the para 1 of the agreement to sale it was binding on the complainant to pay the balance amount of Rs 9,50,000/- within a period of four months from the date of agreement. The agreement to sale is executed on 23/12/2010 therefore it was obligatory on the part of the complainant to make the balance payment of Rs 9,50,000/- on or before April 2011. However, as contended by the opponent builder in his written version amount of Rs 1,50,000/- is paid on 29/06/2011 and Rs 7,50,000/- were paid on 29/12/2011 and balance Rs 50,000/- were paid on 21/04/2012 i.e. after the date of the possession. Though the complainant in his complaint as made a statement that upto 29/12/2010 he paid Rs 12,71,000/- no details of receipt of payments are produced on record. It is evident from the para No. 1 of the agreement to sale dated 24/12/2010 the complainant had paid only Rs 3,71,000/- out of total consideration of Rs 13,21,000/- therefore the finding given by the Dist. Consumer Forum that the complainant paid about 97 % of the total consideration i.e. Rs 8 FA/04/2014 12,71,000/- upto 29/12/2010 cannot be sustained and hence not accepted. Therefore though as per para No. 4 of the agreement to sale it was binding on the opponent builder to complete the construction work within six months, he cannot be hold liable for delay in completing the construction work and handedover over to the complainant as the complainant himself has not performed his part of the agreement.
10. As regards the claim of refund of excess amount of legal fees and electric charges there is no any cogent evidence to prove that those amounts were paid to the opponent builder.
11. It is also tobe noted that in para No. 3 of the sale deed the complainant has made a declaration that he has withdrawan all the notices issued to the opponent builder unconditionally and after his entire satisfaction he has obtained the possession and got executed this sale deed.
12. In view of the aforesaid facts and observations it is clear that the complainant has miserably failed to prove his allegation of deficiency in service and unfair trade practice against the opponent builder. However, the Dist. Consumer Forum on the basis of wrong finding, has held that the opponent builder is guilty of deficiency in service and / OR unfair trade practice. We are therefore left with no option but to quash and set aside the impugned judgment and 9 FA/04/2014 order passed by the Dist. Consumer Forum by allowing the appeal. In the result we pass the following order.
ORDER
1. Appeal is allowed.
2. The impugned judgment and order passed by the Dist.
Consumer Forum is hereby quashed and set aside.
3. The complaint stands dismissed.
4. No order as to cost in this appeal.
5. Copies of the judgment and order be sent to both the parties.
K.B.Gawali Uma Bora
Member Presiding Judicial Member
A.H.Patil
Steno H.G.
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FA/04/2014