State Consumer Disputes Redressal Commission
Shivsagar Phase-I Co-Op. Housing ... vs M/S Shivam Construction Company Thru: ... on 10 April, 2019
A/09/750 Page 1 of 11
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
CIRUIT BENCH AT PUNE
New Administrative Building, 'B'-Wing, 04 th floor,
Opp. Council Hall, Near Sadhu Vaswani Chowk,
Pune - 411001
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First Appeal No.A/09/750
(Arisen out of order dated 04th March, 2009 passed by the learned District
Forum, Pune in Consumer Complaint No.363 of 2004)
Date of filing 28th April, 2009
Date of decision 10th April, 2019
1. SHIVSAGAR PHASE-I COOP. HOUSING )
SOCIETY - PROPOSED, )
REPRESENTED BY, )
SHRI SUDHAKAR MARUTRAO VAVALE, )
HAVING ADDRESS AT:- )
D/5, SHIVSAGAR PHASE-I, )
18/6A, VADGAON BK., MANIK BAUG, )
SINHAGAD ROAD, PUNE - 411051. )
2. SHIVSAGAR PHASE-1 COOP. HOUSING )
SOCIETY LTD., )
REPRESENTED THROUGH ITS CHAIRMAN, )
SHRI NILKANTH PANDHARINATH TIRULE, )
R/AT:- FLAT NO.C/10, SHIVSAGAR PHASE-1 )
COOP. HSG. SOCIETY, MANIK BAG, )
SINHAGAD ROAD, PUNE - 411051. )
AND ALSO THROUGH ITS SCRETARY, )
SHRI ABHAY SHRIRAM KHURJEKAR, )
R/AT:- FLAT NO.B/8, SHIVSAGAR PHASE-1, )
COOP. HSG. SOCIETY, MANIK BAG, )
SINHAGAD ROAD, PUNE - 411051. )... APPELLANT
- : VERSUS : -
1. M/S. SHIVAM CONSTRUCTION COMPANY, )
THROUGH ITS AUTHORIZED PARTNER, )
MR. ATUL VIJAY MOGAL, )
HAVING ADDRESS AT:- )
355, SHUKRAWAR PETH, PUNE - 411002. )
A/09/750 Page 2 of 11
2. MISS JANAKI DILIP SABLE, )
R/AT:- 1182, SHUKRAWAR PETH, )
PUNE - 411002. )
3. MRS. MOHINI SUDHIR SABLE, )
R/AT:- 1182, SHUKRAWAR PETH, )
PUNE - 411002. )
4. MR. ARUN SHANKAR SABLE, )
R/AT:- 1182, SHUKRAWAR PETH, )
PUNE - 411002. )
5. MR. RAHUL DILIP SABLE, )
R/AT:- 1182, SHUKRAWAR PETH, )
PUNE - 411002. )
6. MRS. PALLAVI SUDHIR SABLE, )
R/AT:- 1182, SHUKRAWAR PETH, )
PUNE - 411002. )
7. SMT. ARCHANA ARUN SABLE, )
R/AT:- 1182, SHUKRAWAR PETH, )
PUNE - 411002. )
8. THE COMMISSIONER, )
PUNE MUNICIPAL CORPORATION, )
SHIVAJI NAGAR, PUNE - 411005. )
9. THE EXECUTIVE ENGINEER, )
MAHARASHTRA STATE ELECTRICITY )
DISTRIBUTION COMPANY LTD., )
PUNE ZONE, RASTA PETH, POWER HOUSE, )
PUNE - 411011. )... RESPONDENTS
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BEFORE:- HON'BLE SHRI P. B. JOSHI, PRESIDING JUDICIAL MEMBER
HON'BLE SHRI DR. S. K. KAKADE, MEMBER
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For the Appellant :- Adv. Dnyanaraj G. Sant
For the Respondents Nos.1 to 7 :- Adv. Rahul S. Gandhi
For the Respondents Nos.8 and 9 :- Absent
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A/09/750 Page 3 of 11
ORAL ORDER
(Dated:- Wednesday, 10th April, 2019)
Per - Hon'ble Shri P. B. Joshi, Presiding Judicial Member
FACTUAL MATRIX Being aggrieved by an order dated 04/03/20009 passed by the learned District Consumer Disputes Redressal Forum, Pune partly allowing Consumer Complaint No.363 of 2004, present appeal has been preferred by the original Complainant.
[2] Initially, Consumer Complaint No.363 of 2004 was filed before the learned District Forum, Pune by Shivsagar Phase-I Cooperative Housing Society - Proposed, represented by Mr. Sudhakar Marutrao Vavale and Mr. Prakash Vishnu Gadgil, against the promoter/builder, M/s. Shivam Construction Company, which is actually a partnership firm and the partners of the said firm and against the Commissioner, Pune Municipal Corporation and the Executive Engineer, Maharashtra State Electricity Distribution Company Ltd., Pune Zone.
[3] Respondent/Opposite Party No.1 sold flats in Shivsagar Phase-I Complex and the flat-purchasers proposed to form Shivsagar Phase-I Cooperative Housing Society. Considerations were paid by all the flat- purchasers. Agreements were executed in favour of the flat-purchasers. Possessions of flats were handed over to all the flat-purchasers. However, a cooperative housing society of the flat-purchasers was not formed and duly registered. Similarly, conveyance was not executed. Statement of accounts was not furnished. Some area in the premises was reduced. There were some other deficiencies on the part of the promoter/builder. Hence, consumer complaint was filed by the said, Shivsagar Phase-I Cooperative Housing Society - Proposed, claiming A/09/750 Page 4 of 11 different reliefs. Opposite Parties resisted the complaint by filing their written versions. The learned District Forum, vide its order dated 04/03/2009, partly allowed the consumer complaint. Some reliefs, as prayed by the Complainant were not granted. Hence, present appeal has been preferred by the original Complainant for seeking the relief which were not granted by the learned District Forum.
[4] We have heard learned counsel Adv. Dnyanaraj G. Sant on behalf of the Appellant/Complainant and learned counsel Adv. Rahul S. Gandhi on behalf of the Respondents Nos.1 to 7. Nobody appeared on behalf of the Respondents Nos.8 and 9. We have also carefully perused the material placed on record.
ISSUES FOR DETERMINATION [5] From the submissions made before us by both the learned counsels, from the record and keeping in view the scope of the appeal, following points arise for our determination and we record our findings thereon for the reasons given below:-
Sr. No. Points for determination Our findings Whether the Appellant is entitled to claim from the Respondent No.1, an amount of
(i) Rs.13,99,420/- for the reduction in parking YES spaces and open spaces, as prayed in prayer clause 22[D] of the complaint?
Whether the Appellant is entitled for the relief directing the Respondents not to create any hurdles or deny to the Appellant the use of common areas, parking spaces and open spaces and access to and fro the road as per
(ii) YES the revised layout plan under Commencement Certificate No.DPO/9276/ Newly merged/Wadgaon (Bk)/40 dated 23/02/2001, as prayed in prayer clause 22[E] of the complaint?
A/09/750 Page 5 of 11Whether the Appellant is entitled to claim an amount of Rs.3,50,000/- from the
(iii) NO Respondent No.1 by way of compensation for not maintaining the property?
Appeal is partly
(iv) What order? allowed as per final order REASONS FOR FINDINGS As to Point No.(i), 'Claim of Rs.13,99,420/- ' [6] Appellant has prayed for awarding an amount of Rs.13,99,420/- on account of reduction in parking spaces and open spaces. Learned counsel for the Respondents Nos.1 to 7 argued that there are no specific pleadings in the original complaint about reduction in parking spaces and open spaces. It is also further contended that there are no specific pleadings about an amount of Rs.13,99,420/- as claimed in prayer clause 22[D] of the complaint.
[7] As far as reduction in parking spaces and open spaces is concerned, learned counsel for the Appellant has drawn our attention to pleadings in paragraphs (4), (5), (8-E) and (8-J-i) of the complaint. After perusal of those portions of the complaint we find that there are pleadings about reduction in parking spaces and open spaces.
[8] It is the main objection of learned counsel for the Respondents Nos.1 to 7 that there are no pleadings in the complaint as regards an amount of Rs.13,99,420/-, as mentioned in prayer clause 22[D] of the complaint. Learned counsel for the Appellant submitted that, that is a matter of evidence and how much area is reduced and what is the valuation of such area, that evidence is led by way of a report and an affidavit of architect, Shri Vrijkishor Masalekar and his report and A/09/750 Page 6 of 11 affidavit, which were on the file of the learned District Forum while the consumer complaint was decided, were not appended together with memorandum of appeal and hence, the Appellant moved an application seeking permission of this Commission to file those documents on record mentioning that those documents were before the learned District Forum but, Appellant failed to file those documents together with memorandum of appeal. On 14/08/2012, this Commission passed an order wherein it is mentioned that Adv. D. G. Sant for the Appellant filed an application to produce on record an affidavit of architect which was filed in the District Forum but, not appended to the appeal compilation and he was permitted to file it. Thus, we find that by virtue of said order dated 14/08/2012 passed by this Commission, said affidavit of the architect is on record. Learned counsel for the Appellant has submitted that the learned District Forum has not considered this affidavit of the architect and wrongly rejected the prayer of the Appellant for an amount of Rs.13,99.420/-.
[9] Learned counsel for the Respondents Nos.1 to 7 tried to argue that said report of architect, Shri Vrijkishor Masalekar and his affidavit in support of his report were not before the learned District Forum and that is why, these Respondents has not mentioned anything about those documents in their written version filed before the learned District Forum. It is germane to note that what the Respondents Nos.1 to 7 have pleaded in their written version before the learned District Forum will not decide what was on record. It is very clear that these documents were before the learned District Forum. Shri Atul Vijay Mogal, authorized partner of the Respondent No.1, has filed his affidavit dated 14/07/2015 before this Commission together with an application dated 09/01/2018. In paragraph (08) thereof, affiant has mentioned that the District Forum has considered the purported affidavit filed by Mr. Masalekar and has A/09/750 Page 7 of 11 applied its judicial mind while passing a reasoned order without giving any weightage to the contents of the said affidavit by the architect in paragraph 10 of the order. Thus, the affidavit of the Respondent No.1 filed before this Commission in the present appeal makes the position very clear that the affidavit of architect, Shri Vrijkishor Masalekar was before the learned District Forum. However, the learned District Forum had not given any weightage to it. It is further material to note that the Appellant has filed on record certified copy of affidavit dated 25/10/2004 of architect, Shri Vrijkishor Samsundar Masalekar and that certified copy was obtained from the learned District Forum. Issuing of such certified copy of the learned District Forum makes the position very clear that this document was before the learned District Forum otherwise, the learned District Forum would not have issued certified copy thereof. Inspite of this position, learned counsel for the Respondents Nos.1 to 7 tried to argue that said affidavit was not before the learned District Forum. However, the fact remains that said affidavit was before the learned District Forum.
[10] Learned counsel for the Appellant has submitted that by way of said affidavit of architect, Shri Vrijkishor Samsundar Masalekar, the Appellant has proved reduction in parking spaces and open spaces and as per the architect, valuation of the said area at the relevant time was of Rs.13,99,420/- and this amount is claimed in prayer clause 22[D] of the complaint. It is material to note that there is no rebuttal evidence filed by the Respondents Nos.1 to 7 to rebut the said affidavit. So, in absence of any rebuttal evidence, there is no reason for this Commission not to accept the said affidavit of architect, Shri Vrijkishor Samsundar Masalekar and the valuation made by him in his affidavit and hence, we find that the Appellant is entitled for an amount of Rs.13,99,420/-. The A/09/750 Page 8 of 11 learned District Forum has erred in not considering said affidavit more particularly, when there was no rebuttal evidence on the part of the Respondents/Opposite Parties to challenge the said affidavit of architect, Shri Masalekar. Hence, we have thus, accordingly answered Point No.(i) in the affirmative.
[11] This amount of Rs.13,99,420/- was claimed by the Appellant by filing Consumer Complaint No.363 of 2004 before the learned District Forum, Pune on 25/10/2004. As we have observed that the learned District Forum has erred in not granting this amount though it was sought in the complaint itself, which was filed on 25/10/2004 and as we are now granting that amount, said amount shall carry interest from the date of filing of the complaint till its realization and we find that interest @ 9% p.a. shall be granted. Learned counsel for the Respondents Nos.1 to 7 has objected for grant of interest from the date of complaint. He also contended that the Appellant has not claimed any interest on this amount either in the complaint filed before the learned District Forum or in the present appeal filed before this Commission. However, we find that said objection cannot be considered for the simple reason that when a party approaches any Court/Forum for seeking any particular relief and if, the said party is entitled for such relief then, the party is entitled for that relief from the date of filing of the complaint. If a party is claiming any monetary relief and if, his prayer is granted then, he is entitled for that amount from the date when the complaint was filed and when there is delay in deciding the proceedings, it is not the fault of that party. Learned counsel for the Respondents Nos.1 to 7 contended that if the proceedings are delayed, it is not the fault of the Respondents Nos.1 to 7 either. It is true that it is not the fault of the Respondents when there is a delay in disposing of the proceedings. However, fact remains that the Appellant is A/09/750 Page 9 of 11 legally entitled for the said amount which was denied by the Respondent No.1 and, therefore, in such a case, the Respondent No.1 is liable to pay interest on the said amount at-least from the date when complaint was filed before the learned District Forum. Hence, we hold that the Respondent No.1 is liable to pay interest @ 9% p.a. on the said amount for depriving the genuine claimant from using this amount. Hence, we hold that the Appellant is entitled to receive from the Respondent No.1 an amount of Rs.13,99,420/- together with interest thereon @ 9% p.a. with effect from the date of filing of the complaint viz. 25/10/2004 till its realization.
As to Point No.(ii) [12] It is in respect of directing the Respondent No.1 not to create any hurdles or deny to the Appellant/Complainant the use of common areas parking spaces and open spaces and access to and fro the road as per the revised lay out plan under Commencement Certificate No.DPO/9276/New merged/Wadgaon (BK)/40 dated 23/02/2001. When those common open spaces and parking spaces are shown in the layout plan under the commencement certificate, there is no question of creating any hurdle or obstruction by the Respondents. Even the learned counsel for the Respondents Nos.1 to 7 has fairly conceded to this position. No doubt, in the prayer clause 22[E] of the complaint, together with Respondent/Opposite Party No.1, Opposite Party No.8 is also added, which is another cooperative housing society. However, in the present appeal before this Commission, the Appellant is now not seeking any relief against the original Opposite Party No.8 and in the present appeal that cooperative housing society is not a party Respondent and that party is deleted. So there is no question of giving any direction in this respect to the original Opposite Party No.8. So, it is necessary to direct the A/09/750 Page 10 of 11 Respondent/original Opposite Party No.1 not to create any hurdles or deny to the Appellant/Complainant the use of common areas parking spaces and open spaces and access to and fro the road as per the revised lay out plan under Commencement Certificate No.DPO/9276/New merged/Wadgaon (BK)/40 dated 23/02/2001. We thus, accordingly answered Point No.(ii) in the affirmative.
As to Point No.(iii), 'Compensation of Rs.3,50,000/-' [13] In the prayer clause 22[H] of the original complaint, the Appellant has claimed from the Respondent/Opposite Party No.1 an amount of Rs.3,50,000/- by way of compensation for not maintaining the property. It is germane to note that nowhere it is mentioned in the complaint for which period said amount was collected from the flat-purchasers or the flat-purchasers had spent this amount. Nothing is clear. Even the learned counsel for the Appellant has fairly conceded to this position. Hence, we hold that the Appellant is not entitled for this particular relief. We have thus, accordingly answered Point No.(iii) in the negative.
In view of our answers to Point Nos.(i) to (iii), present appeal deserves to be partly allowed.
We hold accordingly and proceed to pass the following order:-
ORDER
(a) Appeal No.750 of 2009 is hereby partly allowed with costs of Rs.25,000/- (Rupees Twenty-five Thousand only) to be paid to the Appellant/Complainant by the Respondents Nos.1 to 7, jointly and severally.A/09/750 Page 11 of 11
(b) Order under challenge dated 04th March, 2009 passed by the learned District Consumer Disputes Redressal Forum, Pune partly allowing Consumer Complaint No.363 of 2004 is modified to the effect that in addition to the directions given in the said order, the Respondent No.1 shall also pay to the Appellant an amount of Rs.13,99,420/- (Rupees Thirteen Lakhs Ninety-nine Thousand Four Hundred Twenty only) together with interest thereon @ 9% p.a. with effect from 25 th October, 2004. Respondent No.1 shall comply with foregoing order within a period of two months from the date of this order and failing which, rate of interest shall automatically stand enhanced to @ 12% p.a. from the date of this order.
(c) Respondents Nos.1 to 7 are also restrained from obstructing and/or creating any hurdles or deny to the Appellant/Complainant the use of common areas parking spaces and open spaces and access to and fro the road as per the revised lay out plan under Commencement Certificate No.DPO/9276/New merged/Wadgaon (BK)/40 dated 23/02/2001.
(d) Certified copies of foregoing order shall be furnished to the parties.
Pronounced and dictated on Wednesday, 10th April, 2019 [P. B. JOSHI] PRESIDING JUDICIAL MEMBER [DR. S. K. KAKADE] MEMBER kvs