State Consumer Disputes Redressal Commission
Yashashree Developers, vs Ku. Kalpana D/O Deorao Kurve on 20 February, 2013
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/04/2016 (Arisen out of Order Dated 05/10/2004 in Case No. CC/03/132 of District Forum, Wardha) 1. Yashashree Developers, A partnership firm, through its partners. i. Sunil Madhukharrao Kale, ii. Mangesh Sudhakar Surawar, iii. Prakash Kewlramji Nagpurkar, All R/o Plot No. 478, Anand Nagar, Behind Sakardra Plice Station, Nagpur, Tq. & Distt. Nagpur. ...........Appellant(s) Versus Ku. Kalpana d/o Deorao Kurve, R/o. Wardha, Tq. & Distt. Wardha. ...........Respondent(s) First Appeal No. A/04/2017 (Arisen out of Order Dated 05/10/2004 in Case No. CC/03/158 of District Forum, Wardha) 1. Yashashree Developers, A partnership firm, through its partners. i. Sunil Madhukharrao Kale, ii. Mangesh Sudhakar Surawar, iii. Prakash Kewlramji Nagpurkar, All R/o Plot No. 478, Anand Nagar, Behind Sakardra Plice Station, Nagpur, Tq. & Distt. Nagpur. ...........Appellant(s) Versus Madhukar s/o Damodhar Hirulkar, R/o Wardha, Tq. & Distt. Wardha. ...........Respondent(s) First Appeal No. A/04/2018 (Arisen out of Order Dated 05/10/2004 in Case No. CC/03/123 of District Forum, Wardha) 1. Yashashree Developers, A partnership firm, through its partners. i. Sunil Madhukharrao Kale, ii. Mangesh Sudhakar Surawar, iii. Prakash Kewlramji Nagpurkar, All R/o Plot No. 478, Anand Nagar, Behind Sakardra Plice Station, Nagpur, Tq. & Distt. Nagpur. ...........Appellant(s) Versus Sunil s/o Shrawanji Walke, R/o Ramnagar, Wardha, Tq. & Distt. Wardha. ...........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 appellants Adv. Mr. Vaidya for the respondent ORDER
(Delivered on 20/02/2013) Per Mr S M Shembole, Honble Presiding Member These 3 appeals impugn the judgment and order dated 05/10/2004 passed by the District Consumer Forum, Wardha, partly allowing the Consumer Complaint Nos.158/2003, 182/2003 and 123/2003 directing the opponent/appellant to pay an amount of cost of construction, compensation and cost of proceeding as shown in the chart given below.
As the appellant in all 3 appeals is the same and points involved in these appeals are common, we have decided to dispose of these 3 appeals by this common judgment.
(For the sake of brevity, the appellant is here in after referred as to the opponent- Developer and respondents in these appeals as the Complainant) Brief facts giving rise to these appeals are that,
1. Opponent is a Developer and Builder. One Mr. Rajendra kumar Surana is the owner of the land bearing Kh.No. 64/2 and 64/3 of Mouza Nalwadi, Tahsil & District Wardha. On 24/10/2000 there was tripartite agreement between the land owner, opponent-Developer and complainants. By said agreement the complainants have agreed to purchase one plot each from the same land. The cost of the agreed price of the each plot is as shown in the table as given below. Thereafter, by separate agreements between opponent-Developer and the complainants, the opponent-Developer agreed to construct the houses on the plots of the complainant and agreed the cost of construction of each house as shown in the given below.
2. As per agreements opponent-Developer started the construction of 3 separate houses. It was agreed to be completed within 18 months from the deed of agreement. The complainants also paid the amount of cost of construction as shown in the table given below. However, according to the complainants, opponent-Developer has not completed the construction and was avoiding to complete the remaining construction though the complainants were ready and willing to pay the balance amount of cost of the construction. It is averred by the complainants that the opponent-Developer was negligent and nobody was there to look after the construction work. It is further alleged that the opponent-Developer was avoiding to give possession of the house to the complainants. Lastly, the complainants issued notice asking the opponent-Developer to complete the construction within the stipulated period and further asked to hand over the possession of houses, but the opponent-Developer failed to comply the notice. Therefore, the complainants themselves took the possession of the respective houses in the absence of the opponent-Developer and also at their own cost completed the remaining work of the construction and filed separate consumer complaint alleging deficiency in service on the part of the opponent-Developer and claimed amount which they spent for completing the remaining construction. They have also claimed compensation and cost of proceeding. The amount of cost of the remaining construction, compensation and the cost of proceeding claimed by each complainant is as shown in the table given below.
Appeal No. Complaint No. Cost of the Plot. (Rs.) Cost of constru-ction of the plot. (Rs.) Amount of plot & Construction paid by the complainant to the opponent (Rs.) Balance amount of constru-ction. (Rs) Amount spent by the complain-ant for remain-ing work of constru-ction. (Rs.) Amount claimed by the complai-nant. (Rs.) Compne-nsation and cost of the of the proceed-ing claimed by the complain-ant.(Rs.) Amount awarded by the Forum as per final order. (Rs.) 2016/04 132/03 75000/-
320000/-
393000/-
2000/-
105200/-
226700/-
110000/-
115950/-
2017/04 158/03 147000/-
398000/-
520000/-
25000/-
196845/-
196845/-
110000/-
207595/-
2018/04 123/03
--
300000/-
280000/-
20000/-
104000/-
267400/-
160000/-
114750/-
3. By separate written version the opponent-Developer resisted the complaints on the following among other grounds:-
The price of the plots and also the cost of the construction and development are not disputed. The payment of amount by the complainants is also not disputed. Further, terms and conditions of the agreement about the construction of the houses are also not disputed. However, it is denied that the opponent-Developer has not completed the construction of houses within the stipulated period. It is also denied that the opponent-Developer neglected and avoided to complete the construction of the houses and further to hand over the possession of the houses to each complainant. It is submitted that the opponent-Developer has completed the construction of all 3 houses within the stipulated period. It is contended that the complainants have not paid the balance amount as agreed. Further it is submitted that after completion of the construction the opponent-Developer gave possession of the house to complainant- Ku. Kalpana Kurve on 26/05/2001. However, it is submitted that other two complainants themselves in the absence of opponent-Developer took the possession of their respective houses prior to the agreed period, etc. It is further submitted that though it was agreed by the complainants to bear the expenses required for getting the sale deeds of the plots executed, initially the o.p. himself born the said expenses and therefore, according to the opponent-Developer, the complainants are liable to pay the amount which was incurred for the registration and execution of the sale deeds in addition to the cost of the construction, etc. But the complainants avoided to pay the balance amount of construction and expenses and amount paid by him and filed false complaints. It is submitted to dismiss the complaints.
4. On hearing both the sides and considering the documents on record the District Consumer Forum, Wardha held that the opponent-Developer committed deficiency in service in not completing the construction of the houses within the stipulated period as agreed. It is further held that the complainants were required to spend the amount for getting the construction of the respective houses completed and therefore, the opponent-Developer is liable to pay an amount to the each complainant, which they have spent for getting their respective houses completed. In keeping with these findings the District Consumer Forum partly allowed the complaints and directed the opponent-Developer to pay an amount spent by the complainants for getting the construction of the houses competed and also compensation and cost of proceeding as shown in the table given here in above.
5. Feeling aggrieved by the judgment and order, the opponent-Developer has filed these separate appeals.
6. We heard Ld. Counsel for both the sides, perused the written notes of argument submitted by them and also perused the copy of impugned judgment and order, copies of complaint, written version, copies of agreement and other documents.
7. Almost all the facts except the completion of construction of houses within the stipulated period and amount allegedly to have been spent by the opponent-Developer for registration and execution of the sale deeds of the plots in favour of the complainants and also alleged the balance amount, etc.
8. Mr. Solat, Ld. Counsel appearing for the appellant/opponent-Developer submitted that though the opponent-Developer was ready and willing to complete the construction of the houses within the agreed stipulated period, the complainants were not ready to pay the balance amount i.e. balance amount of cost of construction and also the amount of which the opponent-Developer spent for registration and executed the sale deeds of plots in favour of the complainants. It is submitted that the opponent-Developer never neglected or committed any deficiency in service but the complainants with an ulterior motive to avoid to pay the balance amount, filed the false complaints.
9. It is further submitted that the complainants named Mr. Madhukar Hirudkar & Mr. Sunil Walke without consent of the opponent-Developer took the possession of the houses that too in the absence of opponent-Developer without any notice to him, etc. and filed false and frivolous complaints alleging that the construction of their houses was not completed and they themselves got completed the remaining construction, etc. It is submitted that though there is no any evidence in respect of any construction got done by them i.e. complainants Mr. Sunil Walke and Mr. Madhukar Hirudkar, the District Consumer Forum wrongly held that the construction of the houses was not completed and they got it completed by spending their own amount, etc. It is further submitted that though the complaints Mr. Sunil Walke and Mr. Madhukar Hirudkar have filed the complaints in the year 2003; they have produced the bills of 2004, etc. To which it is denied by Mr. Vaidya, Ld. Counsel for the complainants and submitted that as the construction of the houses of Mr. Sunil Walke and Mr. Madhukar Hirudkar was incomplete they were required to spend amount for getting the construction work completed. On perusal of copies of bills produced by the complainants Mr. Sunil Walke and Mr. Madhukar Hirudkar it reflects that both the complainants spent the amount for getting construction of their houses completed and accordingly the District Consumer Forum has rightly held. Therefore, the argument advanced by the Mr. Solat, Ld. Counsel for the appellant/opponent-Developer, cannot be sustained.
10. Further, in case of the complainant- Ku. Kalpana Kurve, it is submitted by Mr. Solat, Ld. Counsel for the opponent-Developer that she received the possession of her house after receipt of completion certificate issued by the opponent-Developer. But with due respect, this submission of Mr. Solat, Ld. Counsel for the opponent-Developer, cannot be sustained. As completion certificate is dated 26/05/2001 which was allegedly to have been received by the complainant, was issued by the opponent-Developer only and not by the competent authority. As per law the completion certificate of the house is required to be issued by the local authority i.e. Municipal Counsel and not by the builder.
11. Further, the record reflects that complainant- Kalpana Kurve was also required to spend amount for getting her house completed after receiving the possession of her house and accordingly, the District Consumer Forum, Wardha has rightly held.
12. For the foregoing reasons, it is obvious that the opponent- Builder has committed deficiency in service by not delivering the possession of the completed houses to the complainants. Though, it is obvious from the record that the complainants took the possession of their houses before the date of agreed period, according to the complainants, the opponent- builder was negligent to complete the construction. Not only this but nobody was taking care of the constructed houses and as houses were lying unattended, they were required to take possession from the opponent-Builder in his absence. Considering these peculiar facts, we find much force in the submission of the Ld. Counsel for the complainants. If really the opponent-builder was interested in completing the construction of the houses and in taking proper care of partly constructed houses, the complainants would not have taken the possession of the houses in his absence.
13. Thus, we have given our anxious thought to the arguments advanced by both the parties and also facts of the case and evidence on record and we find that the District Consumer Forum has rightly partly allowed all 3 complaints. Hence, no interference is warranted.
14. In the result the appellant fails and all 3 appeals deserve to be dismissed.
Hence, the following order.
ORDER
1. All the appeals are dismissed.
2. Having regard to the peculiar facts of the case and interest amount already awarded by the District Consumer Forum, we direct the parties to bear their own cost.
Dated:- 20/02/2013.
[ Hon'ble Mr.S.M. Shembole] PRESIDING MEMBER [ HON'BLE SMT.JAYSHREE YENGAL] MEMBER [ HON'BLE MR.N. ARUMUGAM] MEMBER ay