State Consumer Disputes Redressal Commission
Mr.Diago Joaquim Fernandis, 193, ... vs Mr.Anthony J Pereira, Pareira ... on 11 February, 2015
STATE CONSUMER DISPUTE REDRESSAL COMMISSION, MUMBAI STATE CONSUMER DISPUTE REDRESSAL COMMISSION, MUMBAI. Consumer Complainant No.47 of 2001 Mr.Diago Joaquim Fernandis, 193, Mithalal Mansion, Room No.14, Ground Floor, Lamington Road, Mumbai-400 007 Complainant Versus Mr.Anthony J Pereira, Pareira Builders, 21/B, Amol Nagar, Naigaon (West) Taluka Vasai.Dist.Thane. Pin-401 207. ....Opponent BEFORE: Honble Mr.Shashikant A.Kulkarni, PRESIDING JUDICIAL MEMBER Honble Mr.Narendra Kawde, Member PRESENT: Mr.Gai a/r for the complainant. None present for the opponent. ORDER
Per Honble Mr.Shashikant A.Kulkarni, Presiding Judicial Member This a consumer complaint under Consumer Protection Act, 1986 (C.P. Act) The complainant is a consumer, opposite party is a service provider and a builder (O.P.) opponent No.2 was a co-operative society, but deleted by the complainant.
2. The O.P entered in to an agreement and registered it with complainant agreeing to purchase a flat NO.13 on first floor in buiding No C-2-B proposed to be constructed at Village Juchandra Naigaon (E)Tal.Vasai.Dist.Thane on 06/10/1995 (Exh.A) (undisputed document). The terms of the agreement explain mode of and the date of delivery of possession as on 31/12/1996.
On failure by O.P. to abide the terms of contract to perform its part of contract, the complainant alleged deficiency in service and prayed for relief of possession and alternative for accommodation of similar size in the same location or to refund of the amount with interest and compensation etc.
3. The plot on which is the construction was to be made belonged to City and Industrial Development Corporation (CIDCO). As a matter of Rule, CIDCO was under obligation to provide all infrastructure by such as bridge, roads, drainage etc; after obtaining development charges, which opponent has paid to CIDCO during year 1994. In 1999 CIDCO asked the opponent No-1 to stop construction since its the appeal was pending before Urban Development Ministry. The same situation continued till opponent filed this complaint case on 20/09/2001.
4. Even after the written version, the complainant failed to add CIDCO as a proper party. Relying on a terms of the agreement the opponent states that re-construction could not be completed for the reasons beyond his control.
5. Complainant has not also rejoined the pleadings to the effect as to whether OP was prevented from sufficient cause from furthering the construction work or otherwise until all of obstacles have been cleared off from CIDCO.
Precisely on these grounds OP claims bona fides and refused that it was guilty of any deficiency of service. Since, the matter is taken out from sine-die list in old case and even after service, OP did not participate further, in the proceeding.
6. During the course of hearing Mr. J.B.Gai a/r for complainant argued and submitted that, all other formalities including delivery of possession, occupation certificate have now been completed. The dispute remains in narrow compass regarding payment of interest from date of possession as per agreement 1/1/1993 and actual date of delivery of possession 20/12/2011 on the amount paid to OP No.1.
We have anxiously considered the relief for grant of interest on the amount as claimed. It is in our opinion without rejoining the pleading in defence or without explaining as to how the contentions raised by the OP that, the construction was delayed due to reasons beyond his control Mr.Gai tried to extent and enlarge the period for more than 17 years to claim interest on the amount deposited by the complainant to purchase the flat.
7. Even accepting the contentions that, date of delivery of the possession flat was 20/12/2011, without date on which the obstructions were cleared off furthering the construction, it is difficult to accept the prayer to grant interest for the period from 01/01/1997 to 20/12/2011 on the amount of deposit made by the complainant with OP for purchase of flat.
The complainant has obtained possession to his satisfaction, but now wants charge on OP of interest leaving it to the discretion of the Commission.
8. As pointed out earlier in absence of proof of crucial date, as to when the activity of furthering the construction on the plot after decision of the appeal by the Ministry of Urban Development, started, we are of the view that, no interest can be allowed. Though the OP did not strictly adhere to non-performance of its acts for the reasons beyond its control as enumerated in Section 8 of Maharashtra Ownership of Flat Act, 1963(MOFA), the CIDCO being the person affecting the term of contract being necessary party having not made by the complainant, we require to observe that complainant failed to bring forth necessary contentions and evidence regarding role of CIDCO and OPs allegedly deliberate delay and grant interest on the amount.
Thus complainant has failed to prove deficiency in service for levy of interest for any period. Hence we pass the following:
ORDER
1. The complaint is dismissed.
2. Parties to bear their own costs.
Pronounced on 11th February,2015.
[Honble Mr.Shashikant A. kulkarni] Presiding Judicial Member [Honble Mr.Narendra Kawde] Member db