State Consumer Disputes Redressal Commission
Pooja Construction vs Prashant Nilkant Kerlkar on 31 January, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/10/276 (Arisen out of Order Dated in Case No. cc/70/2002 of District State Commission) 1. Pooja Construction Nagpur Nagpur ...........Appellant(s) Versus 1. Prashant Nilkant Kerlkar Nagpur Nagpur M S ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MR. S B SAWARKAR MEMBER For the Appellant: For the Respondent: Dated : 31 Jan 2017 Final Order / Judgement (Delivered on 31/01/2017) Mr. S.B. Sawarkar, Hon'ble Member
The present appeal is filed against the order of the Addl. District Forum, Nagpur dated 15/04/2006 passed in consumer complaint No. 70/2002, partly granting the complaint and directing opposite party ( for short OP) Nos. 1 to 3 as under.
The OP Nos. 1 to 3 are directed to pay the interest at the rate of 18 percent per annum over Rs. 1,19,000/- to the complainant from 16/06/1989 to 22/10/1990 for delay in delivery of possession of flat.
The OP Nos. 1 to 3 are directed to pay interest over Rs. 15,000/- at the rate of 18 percent per annum from 22/10/1990 to 30/11/1993, the date of execution of sale-deed.
The OP Nos. 1 to 3 are directed to provide copy of registered sale-deed along with deed of declaration to the complainant, if not provided till date of this order.
The OP Nos. 1 to 3 are directed to pay Rs. 20,000/- as compensation to meet the ends of justice as to various claims as specified in point No. 'C' of that order.
The OP Nos. 1 to 3 are directed to pay Rs. 2,000/- as cost of litigation.
The complainant in short filed complaint as follows.
In April 1987, complainant booked a flat on Plot No. 152 with OP Shree Ghongade through Shree Tumade and paid on 25/04/1987, Rs. 5,000/- and Rs. 15,000/- on 1/9/1987. He entered into an agreement to sale on 18/12/1987 in which the cost of undivided share of plot was shown as Rs. 35,000/-. The remaining amount of Rs. 15,000/- was to be paid at the time of sale-deed after completion of the flat. On 11/3/1988, he entered into an agreement for construction of flat. On 16/04/1988, he received estimate of Rs. 1,25,000/- including cost of land of Rs. 35,000/- and cost of construction of Rs. 90,000/-.
As per agreement dated 18/12/1987, with OP Nos. 1 to 3, it was decided that towards cost of Rs. 35,000/- of the land, he was required to pay Rs. 15,000/- at the time of agreement and remaining Rs. 20,000/- were to be paid at the time of sale-deed of the flat. However the OP under threat recovered the entire Rs. 35,000/- from him till June 1989. Hence the extra payment of Rs. 15,000/- (35000-20000) is illegal. Thus, the interest at the rate of 18 percent per annum upon the amount of Rs. 15000/- from November 1990 to March 1992 of Rs. 3,825/- be given to him.
As per agreement of construction dated 11/03/1988, the flat was to be completed in the span of 14 months which date was 10/05/1989. However the construction was completed on 10/10/1990 and possession was given on 25/10/1990. Complainant paid Rs. 1,19,000/- till June 1989. Hence he be paid 18 percent per annum interest on paid amount of Rs. 1,19,000/- for delay in possession from June 1989 to October 1990 of Rs. 30,345/-.
As per estimate of the construction, Rs. 5,000/- were taken for compound wall, well and tank. Rs. 6,000/- were taken on 22/10/1990 before possession. However the wall construction was undertaken in the year 1991. Hence he be given compensation at the interest rate of 18 percent per annum upon of Rs. 1,080/- for the amount paid for the construction of wall .
From him, Rs. 3,700/- were taken for electric-meter and water-meter deposit and society charges. Thus, Rs. 44,400/- were taken from all the owners of the 12 flats. But no account is given of the amount taken. Hence he be refunded the amount of his share with interest upon that amount at the rate of 18 percent per annum.
Further, the opposite parties Nos. 1 to 3 (for short OP) did not construct shed for car parking. The OP reduced balcony breadth from 1.40 meter to 1 meter. No arrangements are made of almari or loft in the kitchen. No arrangements are made for putting locks on the door. No shade is provided on balcony. No compound wall is constructed on the west and front side. No provision is made in the deed of declaration by the OP about wire fencing from east and north side. There is no approach road to the apartment. No information regarding wall compound and wire fencing is given in the deed of declaration. Hence OP be imposed penalty. Also when the entire 6,845/- sq. ft . of land of the plot No. 152 is in the name of 12 flat owners still some portion of the land is shown in deed of declaration in possession of owner of plot. It be cancelled. The water meter is not in the name of society as the OPs have not paid Rs. 14,000/- towards water bill and the OPs have also not paid Corporation tax.
The complainant submitted that he tried to settle the issues through Grahak Panchayat. Hence the copies of the letter are attached. However the builder of which OP Nos. 1 and 2 are partners did not co-operate OP Nos. 1 to 3 gave him notice demanding escalation cost of Rs. 8,093/- and sales tax of Rs. 5,000/- Hence Ops be imposed with penalty of Rs. 5,000/-.
Making complaints as above, the complainant prayed for aforesaid interest of Rs. 3,825/-, Rs. 30,345/-, Rs. 1,080/- return of extra amount taken for electric, water meter and society charges, construction of garage and to remove lacunae in construction or to impose penalty for the same. Also refund excess amount with interest, transfer of water meter in the name of apartment and compensation towards extra amount, if any claimed by the Bank over loan amount with Rs. 2,000/- as cost of complainant.
On notice, the OPs appeared and denied the complaint. They stated that the complainant had booked the flat by depositing Rs. 5,000/- on 25/04/1987. An agreement had taken place on 18/12/1987, between the complainant and the land owner to purchase the undivided share of the land on which the flat was to be constructed. The land consideration was of Rs. 35,000/-. Hence the amount of Rs. 15,000/- paid towards the part payment of the land cost. The complainant had paid the amount for construction of the flat as per the agreement for construction dated 11/3./1988. Complainant had paid the amount after the completion of each of the stage of construction. The complainant did deposit for electric connection from Maharashtra Electricity Board (MSEB) and water connection charges but complainant did not pay the deposit of MSEB and water meter. Hence there was a delay in handing over the possession of the flat. There was no assurance of construction of the compound wall and the well before starting of the construction, which are the requirements of the local body. There was no agreement to provide any parking shade. The width of the balcony is reduced in view of better convenience and better utilization of space. It is provided to all the flat owners and no complaints are filed by the remaining flat owners. The Ops have provided the fabricated kitchen racks and loft is also provided. The complainant at the time of taking possession provided the consent letter that the possession is accepted. All other residents of the flat system have accepted the possession. The claims made by the complainant were not included in building contract dated 11/03/1988. He was provided the deed of declaration along with sale-deed. But he avoided to get the sale deed registered in spite of several request by the OP. The remaining 10 flat owners have got the sale-deeds registered. There is an approach road to the scheme. The water meter is transferred in the name of the Association. In the agreement dated 11/03/1988 there is clause of escalation in the event of rise of price of material for construction. The complainant is required to pay the increased cost which he did not pay. Hence the Ops filed a Civil Suit case against the complainant. The Ops co-operated with Grahak Panchayat to settle the dispute but the complainant did not co-operate. The delay in the construction took place due to shortage of construction material and water shortage. The complainant was well aware of the same. After taking the possession, any problem arising thereafter would have to be attended by him only.
The Forum had decided the complaint which was filed and registered as bearing number CC/253/1992 as per order passed on 25/08/1995. The learned Forum had dismissed the complaint on the ground that the complainant did not pay the entire consideration with escalated price. However the complainant then filed the appeal in which the complaint was remitted back by the State Commission by order dated 23/02/1998 with the observation as below.
"It is to be noticed that the Commissioner's report was filed on record and the District Forum concluded that there was no deficiency in service. All the same when the Civil Court has come to the conclusion that OP had committed delay in putting up construction and delivering the possession. We are of the view that the dismissal of complaint is not warranted now. The findings in favour of the complainant in CC No. 253/1992 can be adjudicated on the question of recovery of interest on the pre-poned payments. We further believe that the report of Commissioner should also have been exhaustively dealt with by the District Forum. Thus, the complaint was transferred back to the Forum on 20/09/2002 for retrial of the complaint."
The learned Forum then considered the contentions of both the parties afresh and thus, passed the impugned order as above.
Aggrieved against the order, the OPs filed the present appeal. Hence are called as appellants. Advocate Mr. J.C. Shukla appeared on behalf of the appellants. The original complainant is called as respondent and was represented by advocate Mr. Dhabe.
The respondent filed an application to direct the appellants to file all the original sale-deeds of the respondent. Upon which the appellants filed the sale-deed dated 13/011/1993 between Mr. Vishwas Tumade with the respondent as purchaser in which the OPs have signed as consenter.
The appellants have not filed the agreements signed on 18/12/1987, 11/03/1988 and the order of the Hon'ble Commission referred to in the order of the learned Forum.
The advocate of the appellants submitted that the appellants had only taken the work of construction of the flat on the land purchased by way of as common undivided share by the respondent. Hence it is a agreement of construction between the land owner and the constructor/appellant of the flat. Hence it is a personal contract. Also, the respondent had paid Rs. 15,000/- as alleged in the complaint which was given to the owner of the plot at the time of purchase of the land. Therefore the said amount of Rs. 15,000/- is not used by the appellant. Therefore the appellants cannot be levied with the interest upon it. Also he had paid the amount for construction when the stage was complete because of which the construction got delayed. Also the complaint filed by the respondent was dismissed by the learned Forum. Hence now the Forum had no jurisdiction to decide the complaint against the cost of the flat as the respondent is still required to pay the remaining amount of consideration to the appellants. The respondent therefore cannot make a claim for delay in possession of the flat. The advocate for the appellants relied on the following judgments as below.
National Commission Judgment passed in Mantu Ranjan Datta Vs. Sumit Malik, published at (2014) 4 CPR (NC) 804 where in the Hon'ble National Commission held that the non execution of deed of conveyance when there was no allegation against the petitioner in the complaint and when there was no obligation to execute sale-deed and when the petitioner has not received any sale consideration, the District Forum committed error in allowing the complaint against petitioner. Hence the complaint is dismissed.
National Commission judgment passed in Emani Sharda Devi Vs. JVR Murthy published at (2014) 2 CPR (NC) 540. The Hon'ble National Commission held that agreement between the complainant and OP was executed for construction of apartment and it was agreement for sale of flat. In view of denial agreement for sale of flat and not impleading necessary party, the District Forum dismissed the complaint and directed the complainant to approach the Civil Court for redressal of his grievances.
National Commission Judgment, passed in P.J. Joseph Vs. Aaratu Culam, published at (2013) 3 CPR (NC) 713. Wherein it is held that the petitioner was to make payment as per time mentioned in the schedule. But the petitioner did not file proof of payment as per time schedule when the petitioner himself committed default in making payment as per time schedule. Respondent was not under obligation to hand over possession in stipulated period.
National Commission Judgment passed in DLF Southern Towers Private Ltd. Vs. Dipu C. Seminlal published at (2015)1 CPR(NC) 183 where in it was held that when the complainant committed default in making payments and returning back duly signed agreement, the OP had every right to forfeit amount of earnest money deposited by the complainant. Hence the complaint was dismissed.
The advocate for the appellants therefore submitted that the flat owners were the actual land owners and the appellants were only charging for the construction cost of the apartment. The respondent avoided to pay the installments of construction. Hence he was given the notice upon which the respondent paid the balance amount to be paid to the owner of the plot. The respondent had no grievance when he was given the possession on 22/10/1990 of the flat after he paid balance amount of Rs. 15,000/- The sale-deed was executed by the land owner and not by the appellant who was a consenting party. The respondent did not make the land owner a party to the complaint. Therefore the complaint is bad in law for not impleading of necessary parties. He therefore requested to consider the sale-deed filed by him and allow the appeal and set aside impugned order.
The advocate for the respondent submitted same grounds as per the complaint and submitted that the appeal is devoid of merits and therefore needs to be dismissed. The appellants have not provided the facilities as were assured and they had also mortgaged the property after its sale to Bank of Baroda. The conduct of the appellants shows negligent and deficient services when the whole plot was sold to the apartment owners. He therefore requested for dismissing the appeal.
We considered the contentions of both the parties. The sale-deed is filed by the appellants as per the request made by the respondent in which the respondent has signed on 30/11/1993. The sale-deed is executed by respondent to purchase the common share of the plot as the owner of the plot on which the flats were constructed. The sale-deed is with owner of plot one Mr. Vilas Tumade. The agreement is signed by the appellant as consenter. The sale-deed needs to be considered as it is produced in appeal as per request made by respondent by filing an application. Neither the appellants nor the respondent has filed previous agreements dated 18/12/1987 and 11/03/1988 made between them before the starting of the construction.
The signing of the sale-deed by the respondent changes the whole dispute. It now needs to be evaluated in the light of sale-deed. Signing of the sale deed by the respondent shows that the respondent became the owner of the undivided share of land which he independently purchased from the land owner who was paid Rs. 35,000/- as cost through the appellants. It shows that the appellants only undertook the work of construction of the flat as per amount paid by respondent. Hence the appellant had no responsibilities to provide the sale-deeds after the construction of the flat.
The schedule of the payment as can be seen from the order of the learned Forum is as below.
Date Amount 25/04/1987 - 5,000/- 1/9/1987 - 15,000/- 14/09/1988 - 25,000/- 20/01/1989 - 20,000/- 3/3/1989 - 16,000/- 25/03/1989 - 16,000/- 16/06/1989 22,000/- 22/10/1989 6,000/-
We do not find any request, complaint or a notice on record by the respondent to hold that the respondent was paying regularly and was eager to take the possession of the flat after getting it constructed. He also did not appear to raise any objection for delayed possession of flat. We also find that the respondent has paid the installments for construction not in a systematic regularity but have paid it with an interval of long duration. The agreement shows that the first payments would always go towards the paying of cost of the plot which was Rs. 35,000/-. There is no evidence to show that the respondent was to pay the remaining 15,000/- from the cost of the land at the time of final sale-deed. The respondent has not submitted the information of making sale-deed and also has not impleaded the owner of the land when he signed the sale-deed of common share in land with the original owner of the land. It shows that his claim of interest on the amount of Rs. 15,000/- which was to be paid at the time of sale-deed does not get fortified by evidence.
The respondent had not paid the construction cost as per the regular schedule or has paid it irregularly. He has also not raised any objection during the stages of construction which shows that he was aware about his payments and therefore was aware about the delayed construction. Hence he cannot make grievance of delayed possession of the flat. It shows that the appellants would only construct when the payment of construction is made by the respondent. Therefore the claim of the respondent for delayed possession also does not stand any ground.
The sale-deed signed by the respondent shows that the deed of declaration is registered at No. 10907 dated 19/11/1990 at SR Mahal, Nagpur. It shows that the deed of declaration to be submitted by the owner of the land or builder and was submitted after the possession of the flat on 22/10/1990. The respondent in his original complaint has mentioned some facts from the deed of declaration at point Nos. 5 and 8 regarding lacunae in construction. But he makes a request to provide the copy of it from appellant which appears contradictory as to how he came to know of the details of the deed of declaration when he did not have the copy of it.
The respondent made the complaint regarding small balcony after taking the possession of the flat. But there is no evidence to show that all the flat owners made the complaint. There is no complaint regarding less area of the flat.
It shows that the flat system was constructed prior to the filing of the deed of declaration and the respondent was aware about the delayed delivery of the flat. Hence the observation of the learned Forum regarding his payment to the appellants and the appellants being the service provider of giving the entire flat do not appear to be correct and sustainable. It shows that the respondent after purchasing common share in the land has got the construction done through the appellants as can be seen from the sale-deed. He therefore cannot now make grievance of delayed possession. Thus, the order of the learned Forum proves erroneous because of the sale-deed signed by the respondent on 30/11/1993. We therefore decide to set aside the order as when the two grounds of use of Rs. 15,000/- and delayed possession do not get fortified because of the sale-deed of the year 1993. Hence the order below.
ORDER The appeal is allowed.
The order of the learned Forum is set aside. In the event, the complaint stands dismissed.
The parties to bear their own cost.
Stay if any stands vacated.
Copy of the order be given to both the parties, free of cost.
[HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MR. S B SAWARKAR] MEMBER