State Consumer Disputes Redressal Commission
M/S. Kajaj Constructions, Through ... vs Smt. Kanta D. Naware And Ors. on 13 July, 2015
Daily Order BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI First Appeal No. A/03/245 (Arisen out of Order Dated in Case No. of District Pune) 1. M/S. KAJAJ CONSTRUCTIONS, THROUGH PROP. SHRI. V.M.SANCHETI PLOT NO.L8, PAUD RD, PUNE-411029. ...........Appellant(s) Versus 1. SMT. KANTA D. NAWARE AND ORS. 1409, KASAB APETH, PUNE-411011. 2. SHRI. DATTATRAYA RAJARAM NAWARE 1409, KASBA PETH, PUNE - 411 011. PUNE MAHARASHTRA ...........Respondent(s) BEFORE: Usha S. Thakare PRESIDING MEMBER P.B. Joshi JUDICIAL MEMBER For the Appellant: Mr. Vijaykumar Motilal Sancheti, Proprietor For the Respondent: Adv. Rahul S. Gandhi ORDER ORDER Per - Hon'ble Mr. P. B. Joshi, Presiding Judicial Member
Being aggrieved by an order dated 02/12/2002 passed by District Consumer Disputes Redressal Forum, Pune partly allowing Consumer Complaint No.416 of 1995 and directing the Appellant/original Opposite Party (hereinafter referred to as 'the Opposite Party' for the sake of brevity) to pay to the Respondents/original Complainants (hereinafter referred to as 'the Complainants' for the sake of brevity) an amount of Rs.20,003/- together with interest thereon @ 9% p.a. with effect from 07/02/1992 till realization of the amount and costs of Rs.1,000/-, within a period of two month, the Opposite Party came in appeal. Facts necessary for deciding this appeal are as under:-
[2] Complainants booked a flat with the Opposite Party for an agreed consideration of Rs.1,25,000/- and an amount of Rs.10,000/- towards parking space. Opposite Party agreed to hand-over possession of the premises to the Complainants by the month of July-1995. Registered agreement to that effect was executed between the parties on 07/02/1992. It is contended by the Complainants that in case of failure to hand-over possession within the stipulated period, the Opposite Party agreed to pay interest @ 9% p.a. on the amount paid by the Complainants. Complainants paid to the Opposite Party a total amount of Rs.18,750/-. However, there was no progress in the construction work. Complainants have contended that the Opposite Party failed to render services as agreed. Hence, Complainants approached the District Forum and filed a consumer complaint and claimed damages for deficiency in service amounting to Rs.2,59,000/-, which included in it an amount of Rs.2,50,000/- towards the difference in the agreed price of the tenement and the market price thereof at the time when the breach was committed, an amount of Rs.5,000/- as compensation towards mental torture and an amount of Rs.4,000/- towards reimbursement of expenses incurred for registration of agreement, legal charges etc. Complainants also prayed for awarding future interest @ 24% p.a. on the amount of Rs.2,59,000/-.
[3] Opposite Party resisted the complaint by filing written version inter-alia, denying most of the contentions of the Complainants. Opposite Party contended that the averments about the interest and the rate averred against the Opposite Party is illegal and no such term of interest had ever been agreed upon and in fact, in the document of agreement, the Complainants seem to have cause interpolation so as to satisfy their malafide of causing forgery in the said document when no rate of interest of any rate had been agreed upon and in fact, in the original agreement the same came to be noted as zero percent and it seems that some time the Complainants availed an opportunity to give shape to the figure of 0% as 9% and in pursuance of such malafide tactics the Complainants have tried to raise the present claim by the proceedings and the same is unwarranted. On these main grounds, the Opposite Party prayed for dismissal of the complaint.
[4] Considering rival contentions of the parties in the light of evidence led on the record by the parties, the District Forum came to pass the order under challenge. It is against that order present appeal has been preferred by the Opposite Party.
[5] Today, Mr. Vijaykumar Motilal Sancheti, Proprietor moved an application on behalf of the Appellant/Opposite Party to transfer present appeal for hearing before principal seat of this Commission at Mumbai. This is an old appeal pending since the year 2003. Parties are from Pune. Disputed tenement is also situated at Pune. Reason mentioned by the Appellant to transfer this appeal for hearing before principal seat of this Commission at Mumbai is not at all satisfactory. Hence, that application is rejected.
[6] We have heard Mr. Vijaykumar Motilal Sancheti, Proprietor of Appellant/Opposite Party in person and learned Adv. Rahul S. Gandhi on behalf of the Respondents/Complainants at length. With their help we have also carefully perused the material placed on record.
[7] Considering the statements made before us and considering the record, it is clear that dispute between the parties is only about rate of interest granted by the District Forum. Opposite Party submitted that he has duly complied with remaining part of the order under challenge.
[8] Following points arise for our consideration and our findings thereon are noted against them serially for the reasons that follow:-
Sr. No. Points for consideration Our findings
1.
Whether the order passed by the District Forum granting interest @ 9% p.a. on the amount of Rs.20,003/- is just & proper?
YES
2. What order?
The appeal stands dismissed.
REASONS FOR FINDINGS Point No.1 [9] Opposite Party submitted that in the agreement executed between the parties it is mentioned that in case of failure on the part of the Opposite Party to hand-over possession of the tenement to the Complainants within the agreed period, he has agreed to refund the amount together with interest thereon @ zero per cent per annum. It is submitted that in view of said portion of the agreement, the Complainants cannot claim interest @ 9% p.a. and the District Forum was wrong in granting interest @ 9% p.a. [10] Opposite Party has drawn our attention to relevant portion in clause (08) of the agreement executed between the parties where 0% interest is mentioned. Learned counsel for the Complainants argued that in the said agreement where there are corrections or hand-written matter, there are signatures of the Complainants. However, where rate of interest is mentioned as 0% in handwriting, there are no signatures of the Complainants and after perusing the said portion of the agreement and particularly clause (08) thereof, we find that there are no signatures of anybody as against that hand-written portion of 0%. In view of that, we find much substance in the submissions made by learned counsel for the Complainants that argument of the Opposite Party that he is liable to pay interest @ 0% is not correct.
[11] It is material to note that in the said agreement, the Opposite Party, on query, drawn our attention to the recitals where it is mentioned that in case of delay on the part of the Complainants to make the payment of amount, as may be demanded by the Opposite Party, the Complainants were liable to pay interest @ 20% p.a. We find that if it is mentioned in the agreement that if there is a delay on the part of the Complainants to pay the amounts, they were liable to pay interest @ 20% p.a. then, how there can be any condition in the said agreement mentioning that if there is position of demanding amount back by the Complainants then, the Opposite Party will be liable to pay interest @ 0% p.a. Such a condition cannot be accepted. On analogy we can say that the Complainants are also entitled for interest @ 20% p.a. when the Opposite Party has mentioned in the agreement that he is entitled to claim interest @ 20% from the Complainants if there is a delay in payment of the amount on the part of the Complainants.
[12] Opposite Party submitted that when the parties have agreed then, they are bound by the terms of the agreement. In support of this contention, Opposite Party has relied upon the decision of the Apex Court in the case of Bharathi Knitting Company Vs. DHL Worldwide Express Courier ~ reported in (1996)-4-SCC-704. In the said case, Their Lordships of the Hon'ble Supreme Court observed that when under specific terms of the contract liability to damages was limited then State Commission cannot order damages beyond that limit. However, it is also necessary to refer to other observations of Their Lordships in the same case where it is observed that in a proper case the tribunal may enter into validity of the terms of contract. We find that in view of those observations and considering the facts of the present case, this is an appropriate case to consider the terms of the agreement which, we have already discussed above to the effect that the Opposite Party, as mentioned in the agreement that he will be entitled to interest @ 20% if, there is a delay on the part of the Complainants to pay the amount then, logically Opposite Party is also liable to pay interest @ 20% to the Complainants if, there is a default on the part of the Opposite Party in rendering service. Here, in the present case, the District Forum has not awarded interest @ 20% p.a. However, District Forum has granted interest only @ 9% p.a. It is material to note that the District Forum while granting interest @ 9% p.a. also considered the agreement between the parties and referred to clause (09) of the agreement dated 07/02/1992 and referred to provisions of Section-8 of the Maharashtra Ownership Flats Act, 1963 which provides for refund of the amount received together with interest @ 9% p.a. in case the promoter/builder fails to complete the construction within the period as agreed in the agreement executed between the parties. Thus, we find that the order of granting interest @ 9% p.a. passed by the District Forum is just and proper. Hence, we have accordingly answered the Point No.(01) above in the affirmative.
[13] In view of our answer to Point No.(01) above in the affirmative, we find no merit in the present appeal and the same deserves to be dismissed.
Hence, we pass the following order:-
ORDER The appeal stands dismissed.
Parties shall bear their own costs.
Pronounced on Monday, July 13, 2015 [ Usha S. Thakare] PRESIDING MEMBER [ P.B. Joshi] JUDICIAL MEMBER