State Consumer Disputes Redressal Commission
Ashok Nivrittirao Dagade vs Saidarshan Co-Op Housing Society ... on 29 November, 2021
1 A/336 to 339/2019
Date of filing :25.02.2019
Date of order :29.11.2021
MAHARASHTRA STATE CONSUMER DISPUTE
REDRESSAL COMMISSION,MUMBAI, BENCH AT
AURANGABAD.
FIRST APPEAL NO. : 336 OF 2019
IN COMPLAINT CASE NO.: 472 OF 2017
DISTRICT CONSUMER FORUM : AURANGABAD.
Ashok Nivrattirao Dagade,
R/o Flat No.2, Bharat complex, Town centre, Cidco,
Aurangabad. APPELLANT
VERSUS
1. Saidarshan Co-operative Housing Society Maryadit,
Nakshartawadi, Aurangabad.
Through its President,
Through its G.P.A. Holder, M/s Pawa Construction,
Riddhi park, Tilakwadi, Tq. & Dist. Nashik.
2. M/s Pawa Construction,
Partnership Firm, Through its Partners.
A) Vilas S/o Nilkanth Patil,
B) Rajendra S/o Kisan Wankhede,
C) Kisan S/o Waman Wankhede,
D) Pritesh s/o Vilas Patil,
All Resident of Riddhi Park, Tilakwadi, Tq & Dist.Nashik.
Through General power of Attorney,
Nandkishor S/o Shantaram Nikumbh,
R/o Nakshtrawadi, Aurangabad. RESPONDENTS
FIRST APPEAL NO. : 337 OF 2019
IN COMPLAINT CASE NO.: 473 OF 2017
DISTRICT CONSUMER FORUM : AURANGABAD.
Ashok Nivrattirao Dagade,
2 A/336 to 339/2019
R/o Flat No.2, Bharat complex, Town centre, Cidco,
Aurangabad. APPELLANT
VERSUS
1. Saidarshan Co-operative Housing Society Maryadit,
Nakshartawadi, Aurangabad.
Through its President,
Through its G.P.A. Holder, M/s Pawa Construction,
Riddhi park, Tilakwadi, Tq. & Dist. Nashik.
2. M/s Pawa Construction,
Partnership Firm, Through its Partners.
A) Vilas S/o Nilkanth Patil,
B) Rajendra S/o Kisan Wankhede,
C) Kisan S/o Waman Wankhede,
D) Pritesh s/o Vilas Patil,
All Resident of Riddhi Park, Tilakwadi, Tq & Dist.Nashik.
Through General power of Attorney,
Nandkishor S/o Shantaram Nikumbh,
R/o Nakshtrawadi, Aurangabad. RESPONDENTS
FIRST APPEAL NO. : 338 OF 2019
IN COMPLAINT CASE NO.: 470 OF 2017
DISTRICT CONSUMER FORUM : AURANGABAD.
Ashok Nivrattirao Dagade,
R/o Flat No.2, Bharat complex, Town centre, Cidco,
Aurangabad. APPELLANT
VERSUS
1. Saidarshan Co-operative Housing Society Maryadit,
Nakshartawadi, Aurangabad.
Through its President,
Through its G.P.A. Holder, M/s Pawa Construction,
Riddhi park, Tilakwadi, Tq. & Dist. Nashik.
2. M/s Pawa Construction,
Partnership Firm, Through its Partners.
A) Vilas S/o Nilkanth Patil,
3 A/336 to 339/2019
B) Rajendra S/o Kisan Wankhede,
C) Kisan S/o Waman Wankhede,
D) Pritesh s/o Vilas Patil,
All Resident of Riddhi Park, Tilakwadi, Tq & Dist.Nashik.
Through General power of Attorney,
Nandkishor S/o Shantaram Nikumbh,
R/o Nakshtrawadi, Aurangabad. RESPONDENTS
FIRST APPEAL NO. : 339 OF 2019
IN COMPLAINT CASE NO.: 471 OF 2017
DISTRICT CONSUMER FORUM : AURANGABAD.
Ashok Nivrattirao Dagade,
R/o Flat No.2, Bharat complex, Town centre, Cidco,
Aurangabad. APPELLANT
VERSUS
1. Saidarshan Co-operative Housing Society Maryadit,
Nakshartawadi, Aurangabad.
Through its President,
Through its G.P.A. Holder, M/s Pawa Construction,
Riddhi park, Tilakwadi, Tq. & Dist. Nashik.
2. M/s Pawa Construction,
Partnership Firm, Through its Partners.
A) Vilas S/o Nilkanth Patil,
B) Rajendra S/o Kisan Wankhede,
C) Kisan S/o Waman Wankhede,
D) Pritesh s/o Vilas Patil,
All Resident of Riddhi Park, Tilakwadi, Tq & Dist.Nashik.
Through General power of Attorney,
Nandkishor S/o Shantaram Nikumbh,
R/o Nakshtrawadi, Aurangabad. RESPONDENTS
CORAM :Smt.S.T.Barne, Hon'ble Presiding Judicial Member.
Mr.K.M.Lawande, Hon'ble Member.
Present : Adv.R.Y.Pund for appellant,
Adv.A.M.Mamidwar for respondents.
4 A/336 to 339/2019
JUDGMENT
(Delivered on 29/11/2021) Per Smt.S.T.Barne, Hon'ble Presiding Judicial Member.
1. The appellant has preferred 4 appeals No.336/2019 to 339/2019 against the judgment and order in C.C.No.472/2017 to 475/2017 decided on 17.01.2019, by District Consumer Forum, Aurangabad, thereby dismissing each complaint by separate order. Same question is involved in all appeals, hence, they are decided by common order by the Commission. The appellant is the complainant and respondents are the opponents in the original complaint before the District Consumer Forum. They are hereinafter referred as per their status in the complaint. The appellant/the original complaint has filed consumer complaints in respect of row-house Nos. 21,22,27&28 which are out of same project undertaken by opponents on plot Nos. 19 to 23 of M/s Pawa Construction of 16 bungalows and 12 row houses, of Saiddarshan Co-operative Housing Society Maryadit, Nakshatrawadi, Aurangabad the opponent No.1. The complainant entered into agreement to purchase row-houses No.21,22,27 & 28 each row-house for Rs.6,10,000/- and paid booking charges of Rs.1,10,000/- each for each row-house by cheque. All these agreement are executed separately on 1.7.2009. The complainant and opponents entered into registered agreement to sell on 3.7.2009. It was agreed to pay balance amount either in cash or by raising loan within three months and the opponent was to construct the row-houses and to hand over balance amount within one year.
2. It is alleged by the complainant that, after receiving copy of agreement to sell and with the consent of opponents the complainant 5 A/336 to 339/2019 applied for loan with Indian Bank. Said bank after having spot inspection sanctioned loan of Rs. 19,00,000/- for purchase of 4 row-houses to complainant. It was decided by bank to disburse loan amount considering development of construction work by opponent. Accordingly, cheque of Rs. 10 Lakhs, was drawn in the name of opponent. However, the opponent or their representative not turned up to collect the cheque, till 27.5.2012. Hence, on 28.5.2012, the said bank cancelled the cheque and the loan. The complainant has incurred expenses of Rs. 29,332/- towards proceedings of loan. The complainant time and again contacted opponent and requested to complete the construction and also paid amount of Rs. 8,00,000/- to opponent on 23.2.2013 by drawing two cheques of Rs.4 Lakhs each and further paid the amount of Rs. 4,00,000/- by cheque dated 16.05.2014. Prior to that, Rs. 1,10,000/- each for booking of row-houses were paid. Thus, the complainant paid total amount of Rs.16,40,000/-, to opponent towards 4 Row-houses from time to time. The amount of Rs.2,00,000/- each remained unpaid against each row-house. The appellant was & is ready to pay the balance amount of Rs.2 Lakhs each, against each row-house on completion of construction. He contacted the opponent from time to time and requested the opponent to deliver the possession.
3. However, on 22.6.2017 and 6.7.2017 the opponent issued notice to complainant to cancel the transaction of row-houses. The complainant replied said notice on 17.7.2017 requesting the opponents not to cancel the agreement and has shown his willingness to pay remaining amount against purchase of 4 booked row-houses. The complainant waited for opponent, after giving reply to notice till Aug.2017, to execute the sale deed. But the opponent did not pay heed to him. Hence, the complainant 6 A/336 to 339/2019 has filed consumer complaint in respect of each row-house bearing C.C.No.336/2019 to 339/2019 claiming possession of Row-houses by accepting balance consideration of Rs.2,00,000/- against each row-house. He has also claimed Rs.2,00,000/- towards mental agony in each complaint & Rs.25,000/- towards cost of proceeding in each complaint. Copy of each complaint is at page No. 24 to 32 in each appeal memo.
4. The opponents No.1&2 Saidarshan Co-operative Housing Society Maryadit, Nakshartawadi, Aurangabad through its power of Attorney holder, and opponent NO.2 M/s Pawa Construction Partnership firm through partner & power of attorney holder Nandkishor Nilkumbh, gave appearance in each complaint and filed their written version in each complaint which is at page No. 74 to 81 in each appeal.
5. The opponents have admitted that the opponent No.1 Co-operative housing society gave their plot No. 19 to 23 for development and construction, to opponent No.2 M/s Pawa Construction, the partnership firm, has undertaken to carry out construction of 16 twin bunglows and 12 Row-houses bearing serial No. 1 to 28. The complainant has booked the row house No. 21,22,27 & 28 from Saidarshan Society, Nakshtrawadi, Aurangabad. It was decided to sell each row-house for Rs. 6,10,000/- on 1.7.2009. the complainant paid Rs. 1,10,000/- each to each row house towards booking charges and entered into registered agreement to sell on 3.5.2009 is not disputed. However, as per the agreement dated 3.7.2009, as per the terms and conditions, the complainant was supposed to pay remaining amount of Rs.5,00,000/- towards each row-house within 3 months. The complainant has not paid said balance amount within stipulated time. Hence, there is breach of terms and conditions of 7 A/336 to 339/2019 agreement. The opponent waited for complainant to pay the balance amount. But complainant failed to pay the balance amount. Hence, opponents gave notice dated 22.6.2017 to the complainant and 6.7.2017 to the complainant and cancelled the agreement. There is breach of terms and conditions, hence, complainant not covers under the definition of 'consumer'. Hence, complaint is not maintainable.
6. The agreement is executed on 3.7.2009. Remaining balance amount was to be paid within 3 months from the date of agreement to sale. The cause of action arose on 4.10.2009. The complaint is filed on 19.9.2017, there is delay of six years in filing complaint. Hence, as per provision of Sec.24 complaint not filed within 2 years. Hence, barred by limitation.
7. In the present dispute question of fact and law is involved, cannot be decided summarily under consumer Protection Act. The alleged grievances are required to be decided by Civil Court. On this count also the complaint is liable to be dismissed.
8. The further objection raised by opponents that, the complainant is resident of Town Centre, Cidco, Aurangabad having own flat. He has booked 4 row-houses in the project of opponents regarding which 3 other complaints are filed by the complainant bearing C.C.No.471/2017, 472/2017, 473/2017 and claiming relief regarding row-houses. The complainant has not mentioned in the complaint that those row houses are booked for residential purpose. The complainant booked the row- houses, for commercial purpose. Hence, as per Sec.2(1)(d) of Consumer 8 A/336 to 339/2019 Protection Act complainant is not consumer within the meaning of said definition.
9. It is also objected that, the complaint is not filed within territorial jurisdiction as the opponent No.2 is having its registered office at Nashik. It is denied that, the opponent No.2 has committed deficiency in service. The complainant failed to pay balance amount within 3 months as per agreement. It is further denied for want of knowledge that, Indian Bank has sanctioned loan of Rs. 19,00,000/- to complainant for purchase of row-houses and that, the cheque of Rs. 10,00,000/- was kept ready for disbursement and that, it is cancelled as no representative of opponent came to collect it. It is denied that complainant incurred expenses of Rs. 29,332/- for process of loan. The payment made by complainant by cheque is matter of fact. The complainant has not filed any documents to show that, he was ready to make payment and having sufficient amount to make payment. The opponent has issued legal notice dated 22.6.2017 and 6.7.2017 through Advocate to cancel the agreement due to failure of complainant to make payment as per agreement. There is no negligence on the part of opponent. Hence, the opponents have prayed for dismissal of complainants.
10. On giving opportunity of hearing to the parties the District Consumer Commission pleased to dismiss the complaint with the observation that, complainant has not satisfactorily explained the purpose of his purchase of 4 row houses. Hence, the possibility of purchase the row houses for commercial purpose, cannot be ruled out. Hence, the complainant is not covering under the definition of 'consumer'. It is also observed that, the defence of limitation is also not rebutted and dismissed 9 A/336 to 339/2019 the complaint on both counts. Hence, being aggrieved by said order of dismissal of all the four complaints the complainant has filed appeals against all the four opponent separately on the following grounds.
That, the Ld. District Consumer Forum failed to appreciate the available oral as well as documentary evidence. The Dist.Forum has not considered that, the complainant has proved deficiency in service on the part of opponent in not following the terms and condition of the agreement. It is specifically proved that, the complainant has purchased 4 row houses for residential purpose and not for obtaining financial gain. The Dist. Forum has ignored the averment in the agreement while recording the vague finding that, the possibility of booking the row houses for commercial purpose cannot be ruled out. The affidavit of evidence about the same contention is also not considered. It is not considered by Dist.Forum that the agreement between the parties is neither declared as null and void nor cancelled by competent court of Law. It is also not considered that, the opponent threatened the complainant by issuing the notice of cancellation of agreement which gives cause of action to file the complaint. It is also pleaded that, the complainant was ready and willing to perform his part of contract. The District Consumer Forum erroneously concluded that, the complainant is not consumer within definition of Consumer Protection Act and purchase the row houses for commercial purpose and that, the complaints are not within limitation. Hence, said order needs to be set aside and it is required to grant the relief as claimed, by complainant.
11. In view of respective submission of the parties following points arise for our determination. We have noted them along with our findings accordingly for the reason to follow.
10 A/336 to 339/2019Sr.No. Points. Answer. 1. Whether, the complainant proved Yes. deficiency in service on the part of opponents? 2. Whether, the complaint covers under Yes. definition of consumer U/Sec.2(1)(d) of Consumer Protection Act? 3. Whether, the complaint is within Limitation? Yes. 4. Whether, the complainant is entitled Yes. for relief claimed? 5. What order? As per final order. REASONING Point No. 1to4:-
12. The Ld. Advocate for complainant argued that in this case the complainant agreed to purchase row houses from opponent in the year 2009 and he has paid Rs 1,10,000 /-against each row house for booking, then they entered into registered agreement. It is agreed to pay remaining amount within 3 months and the opponent was supposed to complete the construction within one year. The opponent gave consent to the complaint in the said agreement to raise loan on the row houses. Accordingly the complainant has applied for loan with Indian Bank, said Indian Bank sanctioned the loan of Rs.19 Lakhs, for purchase of the four Row-houses, in favour of complainant. The draft of Rs.10 Lakhs, was also prepared which was directly payable to the opponents. However, the opponent did not come to collect said draft and therefore the bank has cancelled said draft of Rs. 10 Lakh and also cancelled the loan. Thereafter, 11 A/336 to 339/2019 the complainant has issued two cheques of Rs.4,00,000/- each on 23.12.2013 and of Rs.4,00,000/- on 10.5.2014. Thus, including the booking amount of Rs. 4,40,000/- the total payment of Rs. 16,40,000/- was made to opponent till 2014. Thereafter, the complainant insisted the opponent to complete the construction and to handover the possession and he was ready and willing to pay the balance amount and to execute the sale deed. However, the opponents did not complete the work of Row-house as per agreement and the work other amenities as agreed to be provided. The opponent all of sudden issued notice to the complainant in the year 2017. The complainant gave reply to said notice and thereby shown his willingness to pay balance amount and asked the opponents to execute the sale deed. The complainant waited up to the end of August 2017 and then filed consumer complaint.
13. The District Consumer Commission wrongly observed that, the complainant has not satisfactorily rebutted the objection of limitation and the observation that the row-houses are purchased for commercial purpose and without appreciating documents and evidence gave vague finding that possibility of purchase of flats for commercial purpose cannot be ruled out and wrongly dismissed the complaint. Therefore, the judgment needs to be set-aside.
14. The complainant has placed Reliance upon several following judgments, in support of his complaint to show that complainant is covering under Consumer Protection Act, within the definition of consumer complaint. The complaint is also within limitation and he is having cause of action for relief claimed.
12 A/336 to 339/20191) VIRENDER JAIN Vs. ALAKNANA CO-OPERATIVE JAIN GROUP HOUSING SOCIETY reported in 2014(1) Mah. Law Journal (p.548)
- wherein the complainant/appellants enrolled as a members applied for "A" type flats, the respondent No.1 Co-operative Society retained their amount deposited and indirectly terminated their membership. It is held that, the appellants who had deposited price for the flats being constructed by respondent No.1 are covered under the definition of Sec.2(1)(d) of the Act.
2) SANJAY BANSAL Vs M/S VIPUL LTD,. In Civil appeal No. 10611 of 2013 decided on 12.4.2019 by Hon'ble Supreme Court of India, wherein Hon'ble Supreme Court observed that, in absence of evidence regarding purpose of purchase of flats; only because that individual has booked four flats may not be itself be the circumstance to conclude whether flats were booked for the purpose of resale or for members of family. The findings raised purely on assumption & surmises, hence set-aside.
3) LEELAVATI KIRTILAL MEHTA TRUST Vs. UNIQUE SHANTI DEVEOPERS (SC) in C.A.No. 12322/2016 decided on 14.11.2019.
- wherein the flats were purchased for the use of nurses of hostel. It is held that, there is no nexus between purchase of flats and trust profit generating activities providing hostel facilities for nurses not integral to trust commercial activities. Trust is held as consumer for said transaction.
4) M/s SHREEYOG CONSTRUCTIONs Vs. PRASAD MADHUKAR DEO 2012(II) All MR (Journal) 18 decided by Hon'ble State Consumer Disputes Redressal Commission (Mumbai) wherein issue of less area arise at the time of possession itself. The complaint was 13 A/336 to 339/2019 not filed because the builder assured the purchaser that, issue will be sorted out after inspection of Municipal Corporation, and obtaining completion certificate. The complainant not being handed over possession of actual area agreed, the cause of action remains continuous and his consumer complaint held within limitation. It is held that, the objection raised by builder is devoid of any substance.
5) M/S RUCHITA D. MIRCHANDANI Vs. GODREJ PROPERTIES INVESTMENT LTD,. 2005(1) All Maharashtra reporter (Journal)
21. (Hon'ble State Consumer Commission, Maharashtra State, Mumbai) wherein the flat purchasers paid substantial consideration to the builder of Rs. 9,63,185/- out of Rs.10,58,500/-. They have stated the reason for their withdrawal from scheme, and also willingness to abide with terms and conditions as embodied in the service manual of the builders and other parties. They have also agreed for deduction of permissible charges. The builder at latter stage having received the application in prescribed format for cancellation, from flat purchasers, taken stand for forfeiture of entire amount, held amounts to unfair trade practice, on the part of builders. Hence, directions are given for refund of entire disputed amount with interest at the rate of 9 % p.a.
15. The Adv. for opponent argued on the line of his written version and submitted that, the opponent has raised several objections such as of limitation that, the agreement took place in the year 2009 and the complainant has filed complaint in the year 2017, hence, complaint is barred by limitation. The opponent has also raised objection that, 14 A/336 to 339/2019 complainant is not covering under the definition of 'consumer' under Sec.2(1)(d) of Consumer Protection Act. That complainant has purchased the row houses for commercial purposes and not for residential purpose. Further he also raised objection that the complainant has committed breach of terms and conditions. Therefore, as per the terms and condition the opponent has issued notice to complainant and cancelled the agreement. Moreover, nature of complaint is such that it involves the mixed question of law and Facts. Therefore, it is to be decided by civil court and for this reason also complaint is not maintainable. The Ld.Adv. for opponent has supported the judgment of District Consumer Forum.
16. We have gone through respective submissions of the parties. The complainant produced on record the copy of agreement between the parties. The bank statement produced on record by the complainant each showing that, he has raised the loan in the year 2012 and the bank was about to disburse the amount of Rs. 10 Lakhs taking into construction made. In support of his said contention about the sanctioned of Bank loan in the month of March 2012 and its cancellation, the complainant has produced the bank statement at page No.59. He has also produced the bank statement at page No.60 showing the payment made to the opponent from time to time and as such made payment of Rs. 16,40,000/- in total with this only amount of Rs. 2,00,000/- each was payable against the purchase of each row houses and which he was ready to pay. However, the complainant made submission on affidavit that, the opponent has not completed the construction of row-houses along with the assured amenities till then. The opponents have also not called upon the complainant to execute the sale deed. However, without any prior intimation the opponent has issued notice to complainant cancelling the 15 A/336 to 339/2019 agreement, on relying upon the arbitrary clause of the agreement. The complainant has produced the copy of said notice and reply given by him to said notice at page No.66to70. All those documents are at page numbers 36to70 of appeal compilation. His affidavit of evidence is at page No.82 to 90.
17. The complainant submitted his affidavit in support of his complaint it is specifically mentioned in the affidavit of evidence that, he has purchased the row-houses for his family members and there are near about 8 family members in his family. He has also drawn our attention towards the contents in the agreement to sell which is at page No.36to58. On internal page No.3 (at page No.38 of appeal compilation) in para No.4, it is mentioned that, the complainant has booked the row-houses for residence of his family members after discussion with the opponents he booked the row-houses. The complainant has also drawn our attention towards the map affixed to agreement to sale at page No.45 which goes to show that these four row-houses are adjacent to each other forming a square shape and the area of plot of each row-house is of 66.42 Sq.m. and the construction is of 48.83 sq.m. which is small area. With this complainant has explained the reason for purchase of 4 row-houses, for his family members. Said agreement is registered agreement to sell.
18. From the aforesaid evidence by way of documents and by way of affidavit it reveals that, the District Consumer Commission has ignored all these aspects and come to the conclusion that, the complainant is not consumer within the definition of Consumer Protection Act, and gave vague finding that, the complainant purchased 4 row-houses for which separate complaints are filed before District Consumer Forum. Therefore, 16 A/336 to 339/2019 the findings of District Consumer Forum that said purchases are made for commercial purpose and dismissal of the complaint on the ground, that the complainant is not consumer is without proper appreciation of his complaint and the documents produced on record is not acceptable. Hence, the findings of the District Consumer Fourm is vague and based on surmises. For this, reliance is placed on following judgments.
1) VIRENDER JAIN Vs. ALAKNANA CO-OPERATIVE JAIN GROUP HOUSING SOCIETY reported in 2014(1) Mah. Law Journal - wherein the complainant/appellants enrolled as a members applied for "A" type flats, the respondent No.1 Co-operative Society retained their amount deposited and indirectly terminated their membership. It is held that, the appellants who had deposited price for the flats being constructed by respondent No.1 are covered under the definition of Sec.2(1)(d) of the Act.
2) SANJAY BANSAL Vs M/S VIPUL LTD,. In Civil appeal No. 10611 of 2013 decided on 12.4.2019 by Hon'ble Supreme Court of India, wherein Hon'ble Supreme Court observed that, in absence of evidence regarding purpose of purchase of flats; only because that individual has booked four flats may not be itself be the circumstance to conclude whether flats were booked for the purpose of resale or for members of family. The findings raised purely on assumption & surmises, hence set-aside.
3) LEELAVATI KIRTILAL MEHTA TRUST Vs. UNIQUE SHANTI DEVEOPERS (SC) in C.A.No. 12322/2016 decided on 14.11.2019. - wherein the flats were purchased for the use of 17 A/336 to 339/2019 nurses of hostel. It is held that, there is no nexus between purchase of flats and trust profit generating activities providing hostel facilities for nurses not integral to trust commercial activities. Trust is held as consumer for said transaction.
19. With the aforesaid discussion and evidence adduced by the complainant, we conclude that the complainant has proved that he has purchased 4 row-houses, for residential purpose, for his family members. Hence, the transaction covers the complainant, under the definition of 'consumer' U/Sec.2(1)(d) of Consumer Protection Act, 1986.
20. It is not disputed that the complainant approached to opponent to purchase row houses which were being developed by opponent no.2 Pawa Construction and partnership firm for Saidarshan Co-operative housing society. It is not disputed that, the opponent No.1. The opponent No. 1&2 have under taken the work of development of plots situated at Nakshatrawadi, Aurangabad they have undertaken the construction of 16 twins type Bungalows and 12 row houses bearing serial number 1 to 28. This complainant has booked row houses number 20,21,27 and 28 in Sai Darshan cooperative society. The complainant has paid amount of Rs. 1,10,000/- for purchase of each row house at the time of booking. The opponent executed agreement in favour of complainant on 3.7.2009.It was agreed to make payment within 3 months and the opponent was supposed to make construction within a year and to deliver the possession. The opponent gave consent for raising loan to complainant.
18 A/336 to 339/201921. According to opponent the complainant has not made payment within 3 months and there is breach of terms of agreement, on the part of complainant. Hence, they have cancelled the agreement by issuing notice, in view of terms of agreement. While complainant is raising allegation that the opponent has not completed the work as agreed in the agreement of row houses as well as of other amenities. It further reveals from the documents as well as it can also be gathered from respective submissions of the parties that the complainant has raised loan on the basis of agreement between complaint and an opponent for purchase of four row houses from Indian Bank in the month of March 2012. The Bank has also prepared draft of Rs 10 Lakhs for direct payment to the opponent out of said loan from the bank. However, the opponent did not come to collect said draft. Therefore, the bank has cancelled said draft, on 28 May, 2012 and also cancelled the said loan. According to complainant he was required to spend around Rs. 29,000/- for raising said loan. He has filed bank statement to that effect along with the appeal memo, at page No.59. The complainant also filed evidence of affidavit in support of it at page No.82, explaining the aforesaid fact. Which shows the ready and willingness on the part of complainant. The opponents have not denied this fact specifically, except the submission in written version that, they are denying this fact for want of knowledge.
22. It further reveals from the affidavit of evidence and documents that, the complainant has made payment by two cheques dt 23.2.2013 of Rs 4,00,000/ each and thereafter by cheque dt 16.5.2014, of Rs 4,00,000/- and thereby made the huge payment of Rs.16,40,000/- to opponent till may 2014. The opponent has accepted it. This fact itself shows that, the parties though not made correspondence in writing with each other, the 19 A/336 to 339/2019 fact that, the payment made by complainant and acceptance of amount by opponent beyond stipulated period in the agreement. Itself is sufficient to show that, the opponent has relaxed the terms and condition between the parties by accepting the amount. Which shows that, time is not essence of contract between the parties.
23. The record also shows that there is no correspondence in writing till issuance of notice by opponent to the complainant till intimating cancellation of the agreement, in the month of June 2017. The pleading of opponent is also silent about completion of construction or any intimation about the same to the complainant. Therefore, there appears substance in the submission of complainant that the opponent has not completed the construction and kept on giving assurance, therefore, there was no correspondence in writing. It reveals that the complainant has made huge payment to opponent and waited for completing the transaction.
24. There is no fault on the part of complainant. On the contrary the opponent never gave intimation in writing about the completion of construction. Even after filing the complaint it is not made clear by the opponent in is pleading or evidence as to when the construction has been completed. However, he kept on accepting the amount till the year 2014. Then all of sudden in the year 2017 without any prior correspondence by issuing notice cancelled the agreement.
25. From the aforesaid submission on facts & documents it clearly reveals that, there is a continuing cause of action for complainant to file present complaint. Further the opponent without calling the complainant to execute the sale deed arbitrarily cancelled the agreement between 20 A/336 to 339/2019 complaint and opponents, which also gives further cause of action to the complainant. Therefore, the contention of opponent that the agreement took place in the year 2009 and the complaint filed in the year 2017 is not within limitation is not acceptable. The Reliance is placed on the following judgments of Hon'ble State Consumer Commission, Mumbai.
M/S RUCHITA D. MIRCHANDANI Vs. GODREJ PROPERTIES INVESTMENT LTD,. 2005(1) All Maharashtra reporter (Journal)
21. (Hon'ble State Consumer Commission, Maharashtra State, Mumbai) wherein the flat purchasers paid substantial consideration to the builder of Rs. 9,63,185/- out of Rs.10,58,500/-. They have stated the reason for their withdrawal from scheme, and also willingness to abide with terms and conditions as embodied in the service manual of the builders and other parties. They have also agreed for deduction of permissible charges. The builder at latter stage having received the application in prescribed format for cancellation, from flat purchasers, taken stand for forfeiture of entire amount, held amounts to unfair trade practice, on the part of builders. Hence, directions are given for refund of entire disputed amount with interest at the rate of 9 % p.a.
26. With the aforesaid discussions we come to the conclusion that, the complaint has booked 4 row-houses with opponent. He has though filed separate complaint for each row-house, or he purchased 4 row-houses, they are purchased for his family members for their residential purpose. He has paid substantial amount to opponents since long. The opponents have not given details about the completion of construction. It is also not proved by opponent that, the complainant has committed breach of policy 21 A/336 to 339/2019 condition. The evidence shows that, the opponents have simply kept on accepting the amount beyond stipulated period in the agreement, and in spite of acceptance of amount by them they have not come forward to the execute the sale deed. Further the opponents by taking advantage of one sided condition that, the opponent has reserved right to cancellation the agreement with them, have issued notice to complainant of cancellation of agreement. The opponents thereby shown their refusal to perform their parts of contract. This act and attitude on the part of opponents amounts to unfair trade practice and deficiency in service on their part. It gives continuous cause of action to the complainant to file the complaint and to claim the relief. Hence, the complaint is within limitation and the transaction also covers the complainant within the definition of consumer U/Sec.2(1)(d) of the Act.
With the aforesaid discussion we are of the opinion that, complainant has proved that, the complaint is within limitation. It is also established that, complainant is consumer within meaning of Sec.2(1)(d) of Consumer Protection Act. The complainant has also proved deficiency in service on the part of opponent, in cancelling the agreement and depriving him from the performance of agreement and getting possession of the row-houses, agreed to purchase from opponent. Hence, the complainant is entitled for relief claimed. The District Consumer Forum in very casual manner with vague findings pleased to dismiss the complaint. Therefore, there requires interference in the judgment and order of District Consumer Commission. We therefore, answer the points 22 A/336 to 339/2019 accordingly and pass following order.
ORDER
1. The appeal Nos. A/336/2019 to A/339/2019 are partly allowed.
2. The judgment and orders passed by District Consumer Commission in CC/472/2017 to CC/475/2017 dated 17.01.2019 are hereby set-aside and said complaints are partly allowed.
3. The Complainant shall deposit the amount of balance consideration of Rs.2,00,000/- of each row-house to the opponents for the purchases of row-houses Nos.
21,22,27,28 within 2 months from receipt of this order by depositing with District Consumer Commission, Aurangabad, under intimation to opponents.
4. The opponents on depositing the aforesaid amount by the complainant, shall execute the sale deed within one month and to deliver the possession of row-houses Nos. 21,22,27,28 as per agreement of each row-house to the complainant.
5. The complainant shall bear registration charges, of each row-house.
6. The opponent shall pay Rs.10,000/- towards cost of proceeding in each complaint.
7. No order as to costs in this appeal.
8. The copy of judgment be kept in appeal Nos. 336to339 of 2019.
Mr.K.M.Lawande Smt.S.T.Barne, Member Presiding Judicial Member UNK