State Consumer Disputes Redressal Commission
Satish C. Thayapurath vs M/S Rj Builders & Others on 15 May, 2017
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BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
C.C. No. 19/2016
Mr. Satish C. Thayapurath,
Son of Mr. Pulikkal Gopalan,
Aged 62 years, Indian National,
Resident of Flat No. 3E,
Phase VI, Susheela Seawinds,
Vaddem, Vasco da Gama, Goa. ... Complainant
V/s.
1.M/s. RJ Builders,
A partnership firm,
Having its office at Rajyog,
Miraton Gardens, Airport Road,
Chicalim Goa - 403 711.
2.Mr. Joseph Francis D'Souza,
Alias Mr. Joseph "JOJO'' Francis D'Souza
Son of late Capt. Joseph Rosario D'Souza,
Aged 43 years, Indian National,
And his wife;
3.Mrs. Rajkumari D'Souza,
Indian National,
Aged 40 years,
Both residing at
Miraton Gardens,
Airport Road,
Chicalim Goa. ... Opposite Parties
Mr. B. Khandeparkar, Lr. Counsel for the Complainant.
Mr. D. Naik, Lr. Counsel for the OPs.
Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated: 15/05/2017
ORDER
[Per Justice Shri. U. V. Bakre, President] 2 This is a Complaint filed by the Complainant praying to:
(i) direct the Opposite Parties (OPs, for short) to forthwith complete the construction of the promised flat and to deliver the possession thereof to the Complainant or in the alternative to refund the price amount of Rs. 61,00,000/-
along with interest at the rate of 21% per annum with effect from 31/12/2014 till the date of actual payment;
(ii) direct the OPs to refund to the Complainant the excess amount of Rs. 1,00,000/- received by the OPs, along with interest at the rate of 21% per annum from 10/11/2014;
(iii) direct the OPs to pay to the Complainant compensation of Rs. 10,00,000/- towards mental trauma and agony suffered by the Complainant on account of deficiency of service by the OPs.;
(iv) direct the OPs to pay to the Complainant a sum of Rs.
1,00,000/- towards costs of the proceedings.
2. Case of the Complainant, in short, is as follows:-
(a).- The OPs agreed to provide housing service to the Complainant for total consideration of Rs. 60,00,000/- and pursuant to an oral agreement, the Complainant made payments aggregating to Rs. 55,00,000/- to the OPs as follows:
Date Amount Mode of payment
10-05-2012 Rs. 10,00,000/- By cash
12-05-2012 Rs. 15,00,000/- By post-dated cheque
25-10-2012 Rs. 04,80/000/- By cheque
25-11-2012 Rs. 04,20,000/- By cheque
26-01-2013 Rs. 06,00,000/- By cheque
27-09-2013 Rs. 05,00,000/- By cheque
05-01-2014 Rs. 04,00,000/- By cheque
23-08-2014 Rs. 06,00,000/- By cheque
Total: Rs. 55,00,000/-
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(b). Initially, when the flat was booked on 10/05/2012, the Complainant, at the insistence of the OPs, made cash payment of Rs. 10,00,000/- to the OPs and further issued the post-dated cheque bearing No. 167863 dated 12/05/2012 for Rs. 15,00,000/-. In the receipt issued by the OPs on 10/05/2012, the OPs unilaterally stipulated the sale consideration at Rs. 79,80,000/-. Eventually, post negotiations, the price was agreed at Rs. 60,00,000/-. The OPs started the construction of the building 'Rajyog' and the Complainant went on making payments though the agreement was not executed. The formal agreement for construction and sale was executed on 25/08/2014 and as on that date a sum of Rs. 55,00,000/-
was already paid to the OPs. However, in the said agreement, inadvertently, cash payment of Rs. 10,00,000/- was not mentioned and the agreement reflected payment of Rs. 45,00,000/- only. But there is a written receipt dated 10/05/2012 issued by the OPs, in respect of the said cash sum of Rs. 10,00,000/-.
(c) After the said agreement, on 10/11/2014, the Complainant made payment of Rs. 6,00,000/- to the OPs. Thus, effectively a total sum of Rs. 61,00,000/- stood paid to the OPs against the agreed sum of Rs. 60,00,000/- which means that an excess amount of Rs 1,00,000/- has been paid to the OPs which the OPs are bound to account for. As per the said agreement, the OPs had promised to construct the flat with specifications mentioned in the agreement (which are stated in paragraphs 7 and 8 of the Complaint) and had promised to deliver the flat to the Complainant by 31/12/2014. As per clause 10 of the agreement, in case of failure to hand over the flat to the Complainant for any reason whatsoever by the said date, the OPs had to grant discount/rebate/reduction on further payment of installments to an amount equivalent to 21% calculated every month on the total amount paid till handing over possession of the flat to the Complainant. The OPs have not delivered the possession of the said flat till date and have not even obtained occupancy certificate. The Complainant sent legal notice dated 18/04/2016 to the OPs 4 calling upon them to fulfill their obligations under the agreement and the OPs replied to the same by giving fictitious reasons for delay. The construction of the premises is incomplete and defective. Therefore there is deficiency in service.
3. Vide their written version, the OPs, in short, alleged as under:-
The Complainant was known to the OPs from many years and was well aware of the fact that the OPs were not professional builders and being their first project, the Complainant had assured his support for the same. The Complainant had agreed for a sum of Rs. 79,80,000/-, besides the taxes, levies, registration charges stamp duty, etc. which were to be borne by the Complainant. One of the partners of the OPs had acknowledged the receipt of Rs. 10,00,000/-, paid by the Complainant but the said amount was for the facilities to be provided to the Complainant outside the scope of the construction and to include in the agreement certain services which would not reflect in the agreement. (the said facilities and services are mentioned in paragraph 5 of the written version). The Complainant has to pay an additional amount of Rs. 19,00,000/- to the OPs plus service tax. The Complainant never made payments on time and the delay in payment, which was attributable to the Complainant, caused the OPs great inconvenience, financial problems and further there was ban on mining, shortage of construction material and the cost of such material had shot up and there were changes required by the Complainant like in windows, tiles, etc. due to which there was delay. The project is ready for occupancy and the occupancy certificate is being applied for. All the defects and deficiencies mentioned by the Complainant are false.
4. The Complainant filed his own affidavit-in-evidence. He produced the notarized copies of the following documents:- receipt dated 10/05/2012, for Rs. 10,00,000/-(cash), receipt dated 12/05/2012 for Rs. 15,00,000/-, receipt dated 25/10/2012, for Rs.
54,80,000/-, receipt dated 25/11/2012 for Rs. 6,00,000/-, receipt dated 27/09/2013 for Rs. 5,00,000/-, receipt dated 04/01/2014 for Rs. 4,00,000/-, receipt dated 23/08/2014 for Rs. 6,00,000/-, agreement for construction and sale dated 25/08/2014, receipt dated 10/11/2014 for Rs. 6,00,000/-, e-mail dated 08/05/2015 from the Complainant long with certificate under Section 65-B of the Indian Evidence Act, letter dated 22/06/2015 of the Complainant, legal notice of the Complainant dated 18/04/2016, reply dated 12/05/2016 from advocate of OPs and letter dated 11/07/2016 of the Complainant.
5. The OPs filed the affidavit-in-evidence of the OP No. 2. The OPs have produced the following documents:- e-mail dated 26/12/2013 from the OP No. 2, reply dated 26/12/2013 from the Complainant, e-mail dated 30/01/2014 from the OP No. 2, e-mail dated 31/01/2014 from the OP No. 2, e-mail dated 18/03/2014 from the OP No. 2, e-mail dated 26/03/2014 from the OP No. 2, e-mail dated 21/04/2014 from the OP No. 2, reply dated 21/04/2014 from the Complainant, e-mail dated 17/07/2014 from the OP No. 2, e-mail dated 19/08/2014 from the OP No. 2, reply dated 19/08/2014 from the Complainant, e-mail dated 07/10/2014 from the OP No. 2, e-mail dated 03/05/2016 from the OP No. 2 and e-mail dated 22/06/2016 from the OP No. 2.
6. The contents of the affidavits-in-evidence filed by the Complainant and the OPs being the same as in the Complaint and the written version respectively, we have not repeated the same.
7. Both the parties have filed written submissions. We have also heard oral arguments. Mr. B. Khandeparkar, Lr. Counsel argued on behalf of the Complainant and Mr. D. Naik, Lr. Counsel argued on behalf of the OPs. We have gone through the entire material on record.
68. Indisputably, the possession of the flat has not been handed over by the OPs to the Complainant. However, the Complainant has not stated as to how much work was completed and what was remaining to be done and as to what were the defects as on the date of filing of the Complaint and has not produced any evidence of an architect or an engineer certifying the balance work and the defects. According to the OPs, the project was ready for occupancy and that the occupancy certificate was being applied for. Thus, it is not established by the Complainant that the flat was incomplete and defective as on the date of filing of the Complaint.
9. The agreement for construction and sale dated 25/08/2014, which is registered before the Sub-Registrar of Mormugao, establishes that the construction work had already started prior to that agreement. As per the said agreement, the total agreed sale consideration was Rs. 60,00,000/-. The OPs, however, say that the price was Rs. 79,80,000/- and there was never any negotiation on the same. This they say because there is a receipt dated 10/05/2012 issued by the OPs, wherein they have acknowledged the receipt of Rs. 15,00,000/- from the Complainant as part payment of the sale consideration of the flat and have further stated that the total sale consideration is Rs. 79,80,000/-. However, as rightly contended by the Lr. Counsel for the Complainant, the said statement made in the said receipt is unilateral binding only on the executants i.e. the OPs and not on the Complainant who is not a signatory to the same. The bilateral agreement dated 25/08/2014 specifically says that the sale consideration is Rs. 60,00,000/-. It nowhere stipulates that the consideration is Rs. 79,80,000/-. In view of the provision of Sections 92 and 93 of the Indian Evidence Act, 1872, no oral evidence can be admitted to the exclusion of documentary evidence. Hence, the total consideration for the flat agreed between the parties is not Rs. 79,80,800/- but Rs. 60,00,000/.
710. The said agreement dated 25/08/2014 (as per paragraph 6 and schedule VI) further proves that an amount of Rs. 15,00,000/- was paid by the Complainant to the OPs on 12/05/2012 towards booking amount; a sum of Rs. 4,80,000/- was paid on 25/10/2012 as the 2nd and 3rd installment on completion of excavation, footings/plinth and of the first slab; a sum of Rs. 4,20,000/- was paid on 25/11/2012 as the 4th installment on completion of second slab; a sum of Rs. 6,00,000/- paid on 26/01/2013, as the 5th installment on completion of third slab; a sum of Rs. 5,00,000/- was paid on 27/09/2013 as the part payment of 6th installment of Rs. 9,00,000/- on completion of 4th slab; a sum of Rs. 4,00,000/- was paid on 04/01/2014 as remainder payment of 6th installment of Rs. 9,00,000/- on completion of 4th slab; an amount of Rs. 6,00,000/- was paid on 25/08/2014 i.e. on the date of agreement, as balance part of 7th and 8th installment on completion of roof and pool slab and masonry and brick work. Thus, as per the agreement, an amount of Rs. 45,00,000/- was paid by the Complainant to the OPs by 25/08/2014, towards 8 installments. As per the agreement, the Complainant had agreed to pay the balance amount of Rs. 15,00,000/- as follows:- a sum of Rs. 6,00,000/- on completion of plastering (which should be 9th installment); a sum of Rs. 6,00,000/- on completion of flooring, plumbing and electrical (which should be 10th installment); and a sum of Rs. 3,00,000/- on possession (which should be the 11th and the last installment). Besides the above, before taking possession, the Complainant had to pay Rs. 30,000/- towards actual expenditure involved towards maintenance and provision of future common amenities to the project for one year, electricity connection charges, house tax, infra structure tax, and any expenditure to be incurred on account of any taxes levied or to be levied by the Government, quasi Government, etc. On 7/10/2014, the OPs had sent an e-mail to the Complainant informing that the plastering work was complete. In paragraph 9 of the Complaint, the Complainant has pleaded that on 10/11/2014 i.e. after the execution 8 of the formal agreement, he made payment of Rs. 6,00,000/- by cheque. In this regard, the Complainant has produced on record a receipt dated 10/11/2014 signed by the OP No. 3 which says that the OP No. 1 received an amount of Rs. 6,00,000/- from the Complainant by cheque No. 187516 dated 10/11/2014 drawn on Canara Bank, Vasco. This must be the payment towards 9th installment, on completion of the plastering. Hence, it is duly established by the Complainant that by 10/11/2014, the OPs had received from the Complainant an amount of Rs. 51,00,000/- from the Complainant, towards 9 installments, in terms of the registered agreement.
11. The 10th installment of Rs. 6,00,000/- was payable on completion of flooring, plumbing and electrical and the 11th i.e. last installment of Rs. 3,00,000/- was payable on possession. On 07/10/2014, the OPs had informed the Complainant by e-mail that the internal plastering work has been completed and had annexed the invoice for Rs. 3,00,000/-. Again on 03/05/2016, the OPs sent an e-mail to the Complainant stating that corrections recommended by the Complainant have been done to his apartment and that the flooring, plumbing and electrical work has been completed. The OPs annexed the invoice for Rs. 6,00,000/- requesting the Complainant to pay the same. There is no evidence to prove that the said amounts of Rs. 3,00,000/- and Rs. 6,00,000/- (total Rs. 9,00,000/-) have been paid by the Complainant to the OPs.
12. In paragraph 3 of the Complaint, the Complainant, inter alia, has stated that on the date of booking of the flat on 10/05/2012, at the insistence of the OPs, he reluctantly made a cash payment of Rs. 10,00,000/- to the OPs. However, the Complainant has neither pleaded in the Complaint nor has stated in his affidavit-in-evidence that this amount of Rs. 10,00,000/- paid by cash was towards part payment of the sale consideration of the flat. The OPs have replied 9 said paragraph 3 of the Complaint in paragraph 6 of their written version. The OPs have not denied the receipt of the said amount of Rs. 10,00,000/-. The Complainant has produced a receipt dated 10/05/2012, wherein the OPs No. 2 and 3 and one Mrs. Lorna D'Souza have acknowledged receipt of an amount of Rs. 15,00,000/- by cheque No. 1678631 dated 12/05/2012 on account of sale consideration. There is a hand written endorsement made below this receipt which is signed by the OP No. 2 simply for having received Rs. 10,00,000/- by cash. However, this receipt of Rs. 10,00,000/- by OP No. 2 is not stated to be towards part of the sale consideration of the flat. When the receipt of Rs. 15,00,000/- is specifically signed by both the partners of the OP No. 1 on 10/05/2012 by stating that it is towards the part of sale consideration, the question arises as to why the endorsement of receipt of Rs. 10,00,000/- is signed only by the OP No. 2 on the same day below the same receipt without saying that it is towards part payment of the sale consideration. The OPs in paragraph 18 of the written version have alleged that the said amount of Rs. 10,00,000/- was towards adding amenities such as backup power to the home, additional guest bathroom, extra point elevator with access from any floor right up to the terrace, rooftop pool with mini Jacuzzi pool and an unmentioned free additional parking in the same slot, due to which the said amount was not considered as part of final agreement. Admittedly, the registered agreement for construction and sale dated 25/08/2014 is totally silent on the said amount of Rs. 10,00,000/-. Just as Sections 92 and 93 of the Indian Evidence Act, 1872 is applicable to the OPs and they are precluded from contending that the sale price agreed was Rs. 79,80,000/-, in the same manner, the said Sections are applicable to the Complainant and he cannot be allowed to say that the amount of Rs. 10,00,000/- paid by him by cash was towards the sale consideration of the flat and part of the registered agreement. It is pertinent to note that in the legal notice dated 18/04/2016, sent to the OPs by the Complainant through an advocate, the Complainant 10 has specifically stated that he has till date paid total amount of Rs. 51,00,000/-only. After about little less than three months, the Complainant personally wrote a letter dated 11/07/2016 to the OPs informing that the statement in the earlier notice dated 18/04/2016, through advocate, that he had paid Rs. 51,00,000/- only was a wrong statement and that after re-conciliation of the accounts it came to his knowledge that he had made additional cash payment of Rs. 10,00,000/- on 10/05/2012 and therefore the total payment made to the OPs works out to Rs. 61,00,000/-. In our considered opinion, no one would forget a huge payment of Rs. 10,00,000/- made by cash on the same day when the amount of Rs. 15,00,000/- was paid by cheque and a receipt was obtained for both, if really the said payment of Rs. 10,00,000/- was made for the same purpose for which the amount of Rs. 15,00,000/- was paid. In our view, since the cash payment of Rs. 10,00,000/- was not to be considered as consideration for construction and sale of the flat, the same was not included in the registered agreement for construction and sale of the flat. Hence, we hold that the said amount of Rs. 10,00,000/- was not towards the sale consideration of the said flat but was towards additional amenities outside the scope of the said agreement and that till date the Complainant has paid only an amount of Rs. 51,00,000/- towards his performance of the agreement which means that an amount of Rs. 9,00,000/- is still due to be paid by the Complainant to the OPs.
13. The Complainant has stated in paragraph 1 of the Complainant that he came across OPs No. 2 and 3 who are husband and wife and who had started construction business in partnership. The Complainant did not state that he was previously knowing the OPs. The question arises as to why the Complainant entered into an oral agreement with OPs for housing service and even paid huge amount of Rs. 49,00,000/- to the OPs without a written agreement. According to the OPs, the Complainant was known to them from 11 many years and that the Complainant knew that they are not professional builders and being their first project in the land in which they had demolished the inherited family house and had opted to build a new three storied building, the Complainant had assured his support for the same. We are inclined to believe the OPs in this regard since the Complainant agreed to purchase the flat from the OPs and went on making payments without executing any written agreement. The Complainant has not stated as to what were the terms and conditions of the said oral agreement and as to what was the due date fixed for each installment. For example, a sum of Rs. 4,80,000/- was paid on 25/10/2012 as the 2nd and 3rd installment on completion of excavation, footings/plinth and of the first slab. There is no explanation as to why the earlier 2nd installment was paid on 25/10/2012 along with the 3rd installment, after completion of the work of the 3rd installment. Again, the last payment of Rs. 6,00,000/- was made by the Complainant to the OPs by cheque dated 10/11/2014. But the Complainant has not stated as to how much work was completed and what was the remaining work when the said amount of Rs. 6,00,000/- was paid.
14. In one of the e-mails dated 26/12/2013, sent at 11.02 a.m., the OP No. 2 had written to the Complainant that he was badly stuck for funds for further completion as he had planned the schedule of payment to complete in June 2014. In answer to that, on the same day at 11.08 a.m., the Complainant sent an e-mail to the OPs wherein he did not deny the statement made by the OP No. 2 in his e-mail but stated that he will release a cheque on 02/01/2014. One cheque for Rs. 4,00,000/- bearing No. 000008 dated 04/01/2014 was issued by the Complainant to the OPs. On 30/01/2014, the OPs had written to the Complainant to choose the WC commodes and to inform as to for which bathrooms, he wanted upgrade. On 31/01/2014, the OPs had sent a reminder to the Complainant stating that their plumber was on the site and had been waiting for few days. On 18/03/2014, 12 the OPs had requested the Complainant to release an amount around Rs. 32,000/- and additional difference amount for plumbing of Rs. 23,400/-. Again on 26/03/2014, the OPs had informed the Complainant that they needed Rs. 1,00,000/- and in case there was a problem, then to pay at least Rs. 38,500/-for closing payments of material. Then there was a dispute regarding payment of service tax. On 17/07/2014, the OPs wrote to the Complainant by e-mail that additional payment for bathrooms as agreed was Rs. 23,400/- and that out of the due amount of Rs. 15,00,000/- the Complainant had paid Rs. 11,00,000/- and that an amount of Rs. 4,23,400/- was due. There is on record e-mail dated 19/08/2014, produced by the OPs, wherein it is mentioned that as pointed out by the Complainant to be a mutual agreement, the "due on dates" clause has been removed from the agreement. On 7/10/2014, the OPs had informed the Complainant that the internal plastering was complete and had sent the invoice for Rs. 3,00,000/-. The Complainant had paid Rs. 6,00,000/- by cheque dated 10/11/2014. Soon after 31/12/2014 which was the last date for giving possession of the completed flat to the Complainant, the Complainant did not send any notice to the OPs claiming compensation under clause 10 of the agreement. On the contrary, on 08/05/2015, the Complainant sent e-mail to the OPs. informing that the tiles that were fixed were not the ones he had selected and that they were not properly fitted and that even the kitchen floor tiles were not in his taste. Again, on 22/06/2015, the Complainant, without making grievance about non-completion of the flat by 31/12/2014, wrote a letter to the OPs requesting them complete the construction immediately. Thus, in other words, the time for completion was extended till then. On 18/04/2016, the Complainant issued legal notice to the OPs thereby calling upon the OPs to pay compensation, on account of delay. On 03/05/2016, the OPs by email wrote to the Complainant that the project was almost complete and the final painting had commenced and an invoice for Rs. 6,00,000/- was annexed. By reply dated 12/05/2016, through 13 advocate, the OPs, inter alia claimed that the Complainant had not made full payments as per the schedule and that the moment payment of balance consideration was made, the OPs would give possession of the flat to the Complainant. By e-mail dated 22/06/2016, the OPs offered a settlement and informed the Complainant that the current installment due was Rs. 6,00,000/- and to deduct Rs. 1,55,000/- for windows and Rs. 50,000/- for kitchen slab and sink/crusher, etc. In order to know whether the installments were paid on or before scheduled time or belatedly, it becomes necessary to know the due dates for payment of installments. The Complainant has not stated in the Complaint as to what were the due dates as per the oral agreement and the registered agreement for construction and sale does not mention the due dates nor does it state that there were due dates fixed for payment of installments.
15. As per clause 9 of the agreement dated 25/08/2014, the project was not required to be completed but was expected to be ready by 31/12/2014 and the OPs were entitled to reasonable extension of time for giving delivery of possession of the premises to the Complainant, inter alia, in the event of non-availability of sand, steel, cement, other material; delay in payments and non-payment of installments as detailed in the Schedule VI of the agreement; delay on the part of the Government/Statutory Authority in issuing occupancy certificate and/or completion certificate and/or releasing water and electricity supply in case the said premises are otherwise completed in all respects and proper applications are made to the Government/Statutory Authority and alterations required in the apartment by the Complainant. As per clause 10 of the said agreement, in case of failure to hand over the said premises to the Complainant for any reasons whatsoever by 31/12/2014, the OPs had to grant discount/rebate/reduction on further payment of installments to an amount equivalent to 21% calculated every month 14 on the total amount paid till then till handing over possession of the said premises to the Complainant. In terms of clause 11 of the agreement, the Complainant was liable to make all the payments as per Schedule VI or within a period of 10 days from the date of receipt of installment dues, failing which the Complainant was liable to pay the installments along with interest of 21% per annum from the date of expiry of 10 days till the actual payment of the said installment. In this regard, in the legal notice dated 18/04/2016, sent through an advocate, the Complainant called upon the OPs to pay a sum of Rs. 1,60,65,000/- as on 31/03/2016 and thereafter to pay monthly compensation of Rs. 10,71,000/- till the date of handing over possession. In paragraph 18 of the Complaint, the Complainant pleaded that as on 01/09/2016, the said penalty amount works out to Rs. 2, 14, 20,000/. But, most surprisingly, at the end, for reasons best known to him, the Complainant has not prayed that the OPs be directed to pay the said huge amount of Rs. 2,14,20,000/- and further monthly amount of Rs. 10,71,000/-. The Complainant has not claimed any compensation in terms of clause 10 of the agreement which means that there was no deliberate delay.
16. In our view, the Complainant should pay the balance amount to the OPs since he has not claimed compensation on account of alleged delay by taking recourse to clause 10 of the agreement. The Complainant has not established any deficiency in service on the part of the OPs. There is no evidence to prove that the Complainant suffered any mental trauma and agony to make him entitled to compensation of Rs. 10,00,000/-.
17. In the result, the Complaint is rejected.
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre]
Member President
sp/-
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