State Consumer Disputes Redressal Commission
1. Shri Leo Santan Douza, vs 1. Shri Milagres Joao, on 5 November, 2009
THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA Present: Smt. Sandra Vaz e Correia Presiding Member Smt. Caroline Collasso Member Appeal No.55/2006 1. Shri Leo Santan DSouza, s/o Ubaldo DSouza,. 67 years old, married, retired. 2. Smt. Juliet DSouza, d/o N. Fernandes, wife of Complainant no.1, 59 years old, both residing at B/301, Holy Cross Towers, Holy Cross Road, I.C. Colony, Borivili (West) Mumbai 400103. Appellants (Original Complainant) v/s 1. Shri Milagres Joao, Major, landlord and his wife, 2. Smt. Antonette R. Trinda Joao, major, housewife. Both residing at GAunchem Bhatt, Opp. Panchayat House, Merces, Tiswadi, Goa. 3. Shri Jose Joao Domingos Godinho, Proprietor, M/s Perfect Builders & Developers, Flat No.9, 3rd Floor, Mutual Housing Cooperative Society, Cina Street, Dr. Vaidya Road, Panaji-Goa. Respondents. (Original Opposite Party) For the Appellants Shri G.N. Mishra, Advocate. For the Respondent No.1&2Shri J.E.Chatim, Advocate And Advocate S.Chawan present at the time of order Dated:05-11-2009 ORDER
[Per Smt. Caroline Collasso, Member]
1. The appeal challenges the judgment/order dated 20-01-2003 by the District Forum North Goa in complaint No.81/2001.
2. Briefly the complaint is about a construction of a building to be named as Casa Joben in the property belonging to Opposite Party No.1 and 2 which was to be constructed by Opposite Party No.3. For the above purpose Opposite Party No.1 and 2 had entered into an agreement with Opposite Party No.3 for development of the property and erecting a building thereon. Power of Attorney was executed by Opposite Party No.1 & 2 in favour of Opposite Party No.3 for carrying out the said development and construction, and also to make representations and deal with others and to carry out the sale of flats/shops to be constructed in the said building. Accordingly, Complainants booked flat no. SF-4 admeasuring 77.16 sq.mts for a price of Rs.4,62,960/- vide agreement dated 05-06-1997. Later, the Opposite Party No.3 offered flat No.FF-3 on the first floor of the said building which was agreed upon by the Complainants and allotment was confirmed by Opposite Party No.3 vide his letter dated 06-07-1998. The flat was to be delivered to the Complainant not later than 18 months from the date of signing the agreement. Since the flat was never handed over, the complaint was filed before the District Forum, North Goa, wherein prayer for delivery of flat FF-3 was made and in case the flat cannot be granted then refund of monies paid with interest @ 18% p.a. as well as compensation and costs were prayed for.
3. The reply of Opposite Party No.1 and 2 was that they have not received and/or retained the amount of Rs.4,62,960/- nor utilized the said amount for their business. They also stated that they have not entered into any agreement with the Complainant and hence they are not bound to deliver any possession of a flat to the Complainant. Matter proceeded ex-parte against Opposite Party No.3.
4. On hearing arguments, the District Forum while dismissing the complaint as against Opposite Party No.1 and 2 upheld the same as against Opposite Party No.3. Accordingly, Opposite Party No.3 was directed to make payments as under to the Complainants.
a) Refund of Rs.4,62,960/- with simple interest thereon @ 12% p.a. from 05-12-1998 (being the date 18 months from the first Agreement by which date Opposite Party No.3 was to deliver the flat to the Complainant) till date of actual payment together with costs of Rs.6000/-. Opposite Party No.3 was to effect these payments within thirty days of this order.
5. Aggrieved by this judgment/order the present appeal was entered. The two broad issues canvassed in the appeal was the dismissal of the complaint vis--vis Opposite Party No.1 and 2 and secondly that order of refund of Rs.4,62,960/- with interest thereon was not acceptable as the Appellants wanted the flat and not the refund of amount deposited, since they do not have a place to reside in Goa.
6. On the first issue, the Appellants challenged the order on the ground that Opposite Party No.1 and 2 as husband and wife and as owners of the property, had executed an agreement with Opposite Party no.3 for developing the said property and constructing the said building thereon, for selling flats, and thus the District Forum ought not to have discharged Opposite Party No.1 and 2; that Opposite Party No.1 and 2 having executed Power of Attorney in favour of Opposite Party No.3 who was authorized thereunder to carry development on their property, construct building thereon and sell flats and carry on all sorts of dealings on their behalf with regard to the development and construction are as much responsible as Opposite Party No.3 he being their attorney; that Opposite Party No.3 are party to the entire deal with the Complainant/Appellant and cannot be exonerated of their liability and the District Forum has committed an error in dismissing the complaint against them; the District Forum has failed to see that Opposite Party No.1 and 2 were parties to the said agreement dated 5th June, 1997 for the sale of the said flat and hence were jointly and severely liable together with Opposite Party No.3; the District Forum committed an error in ignoring the fact that the Power of Attorney granted by Opposite Party No.1 and 2 in favour of Opposite Party No.3 binds them and makes them liable for the acts committed by Opposite Party No.3 and thus the District Forum could not dismiss complaints claimed against them; that the District Forum has failed to see that Opposite Party No.1, 2 & 3 had together hatched a plan to float the housing scheme started construction to tempt genuine buyers collected huge amounts and then cheated intended buyers; that the District Forum failed to see that the Complainants/Appellants were entitled to recover from the Opposite Party compensation of Rs.60,000/- on account of mental agony and harassment caused to them; that the District Forum erred in awarding the refund of Rs.4,62,960/- with simple interest @ 12% p.a. which did not meet the requirements of justice as the Appellants wanted the said flat and not the refund of deposit, as they have no place of their own to reside in Goa; that the District Forum erred in awarding costs of Rs.6,000/- only, whereas the cost incurred by them was about Rs.90,000/-; that the order was illegal, incorrect, and bad in law, and as such was liable to be quashed and set aside.
7. The Appellants, therefore prayed:
1) that the order of the District Forum be set aside so far as Opposite Party No.1 and 2 were exonerated from their liability.
2) to order Respondents to complete construction of the said building/flat and deliver possession of the aid flat to the Appellants complete in all respects;
3) to order the Respondents to pay interest @ 18% p.a. on the deposit amount of Rs.4,62,960/- from 05-06-1997 till date of final possession;
4) for compensation of Rs.60,000/- for mental torture and harassment;
5) to order Rs.9,000/- as costs to be paid to the Appellants.
8. During the pendency of the appeal, the Appellant moved an application for appointment of a Commissioner to valuate the incomplete work in the said flat and estimate the costs in completing the said flat and to order the Respondents/Opposite Parties to pay the above estimated amount. Vide the same application, order was also sought against Respondents No.1 & 2 to co-operate and obtain as they have done in other cases, Occupancy Certificate, Water & Electricity connections and other documents necessary for completion and delivery of the said flat to the Appellants. This application was dismissed by this Commission vide order dated 03-09-2009 mainly on the grounds that the application was premature as the issue of exoneration of Opposite Party No.1 and 2 was yet to be decided in the appeal and hence no directions can be given to them and secondly, appointment of a Commissioner and collecting evidence for the Appellants cannot be sought by way of an application in an appeal.
9. A perusal of the complaint indicates that the Complainant had in the complaint, clearly prayed for an order to direct Opposite Parties to deliver the said flat FF-3 to the Complainant. Complainant had also prayed for interest on the amount paid @ 18% p.a. from the date of filing of the complaint, till actual delivery and also for compensation of Rs.30,000/- and costs of Rs.6,000/-.
10. Furthermore, in the Appeal itself, the Complainant has challenged the order on the grounds that the District Forum had erred in awarding the refund as it did not meet the requirements of justice, since the Appellants wanted the flat and not the refund of deposit, not having a place of their own. The interest of the Complainant/Appellant in taking possession of the said flat, can also be seen in the fact that they had moved an application even though at the appellate stage to complete the works on the flat and to deliver possession of the said incomplete flat as it is. The Complainant is thus well aware that the flat is not complete. The Complainant has paid an amount of Rs.4,62,960/- which is proved by relevant receipts on record.
11. In the light of the above, in the special circumstance of the case that the Complainants being senior citizens and desiring to reside in Goa, being Goans by origin, we are inclined to grant the prayer of the Appellant with regard to delivery the said flat to the Complainant by Opposite Party No.3.
12. On the aspect of whether the District Forum was right in exonerating Opposite Party No.1 and 2 from the complaint, we see that the Agreement for Sale is signed by Opposite Party No.3 as Power of Attorney holder for Opposite Party No.1 and 2. The Power of Attorney given by Opposite Party No.1 and 2 to Opposite Party No.3 has since been revoked. On the aspect of whether Opposite Party No.1 and 2 are liable and/or have committed deficiency of service vis a vis the Complainant, we note that the entire amount as paid by the Complainant has been received by Opposite Party No.3.
Opposite Party No.1 and 2 are parties to the Agreement for construction and sale merely because of the fact that they are owners of the original property on which the said building was to be constructed by Opposite Party No.3. There is no direct link between Complainant and Opposite Party No.1 and 2 and there was no monies which have passed between them. Thus, there is no service as defined under the Consumer Protection Act, which was to be rendered by Opposite Party No.1 and 2 to the Complainant. Having given POA to Opposite Party No.3 does not in any way make Opposite Party no. 1 liable for reliefs vis-a-vis the Complainant, under the Consumer Protection Act. Compass of the Consumer Protection Act is rather narrow in that a complaint can be filed only for defect in goods and deficiency in service. This is not so vis-a-vis reliefs under the Contract Act 1872 which deals with liabilities of an agent vis-a-vis the principal. Such reliefs can be sought in a Civil Suit. Hence we are of the opinion that the District Forum has rightly exonerated Opposite Party No.1 and 2 from the complaint.
13. In the light of our discussions above, the order of the District Forum is modified to the extent that the Opposite Party No.3 is directed:
a) instead of return of monies paid, the Opposite Party No.3 is to hand over the flat No.FF-3 to the Complainants in the building constructed at Merces on as is where is basis.
b) The Appellant to complete the flat as per agreement and submit the bills to Respondent No.3 who shall pay the same within a month of its submission.
c) to pay interest of 9% on the amount of Rs.4,62,960/- from date of its payment till final payment;
d) to pay costs of Rs.5,000/- in addition to the Rs.6,000/- granted by the District Forum.
Pronounced.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member 05-11-2009 ORDER The order of the District Forum is modified to the extent that the Opposite Party No.3 is directed:
a) Instead of return of monies paid, the Opposite Party No.3 is to hand over the flat No.FF-3 to the Complainants in the building constructed at Merces on as is where is basis.
b The Appellant to complete the flat as per agreement and submit the bills to Respondent No.3 who shall pay the same within a month of its submission.
c.
To pay interest of 9% on the amount of Rs.4,62,960/- from date of its payment till final payment;
d.
To pay costs of Rs.5,000/- in addition to the Rs.6,000/- granted by the District Forum.
Pronounced.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member