National Consumer Disputes Redressal
Eugene Rent vs Ms. Shirin Farias Prabhu on 8 April, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.2867 OF 2006 (Against order dated 5-8-2006 in Appeal No.1054/2004 of the State Commission, Karnataka) EUGENE RENT PETITIONER VERSUS MS. SHIRIN FARIAS PRABHU RESPONDENT REVISION PETITION NO.3883 OF 2006 (Against order dated 5-8-2006 in Appeal No.1054/2004 of the State Commission, Karnataka) MS. SHIRIN FARIAS PRABHU PETITIONER VERSUS EUGENE RENT RESPONDENT BEFORE: - HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the petitioner in R.P.No.3883/2006 & respondent in R.P.2867/2006 : Mr. D.P. Chaturvedi, Advocate For the respondent in R.P.No.3883/2006 & petitioner in R.P.No.2867/2006 : Ms. Vaijayanthi Girish, Advocate PRONOUNCED ON: 8thAPRIL, 2011 O R D E R
ASHOK BHAN J., PRESIDENT This order shall dispose of cross revision petitions filed against the order dated 5th August, 2006 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short, the State Commission). Revision Petition No.2867 of 2006 has been filed by Eugene Rent which was opposite party before the District Consumer Disputes Redressal Forum, Mangalore (for short, the District Forum) and Revision Petition No.3883 of 2006 has been filed by Ms. Shirin Farias Prabhu which was the complainant before the District Forum. The parties would be referred to as the complainant and the opposite party hereinafter.
Ms. Shirin Farias Prabhu, the complainant, entered into an agreement with Mr. Eugene Rent, the opposite party, who is a developer and builder of properties, on 26th October, 1996 for purchase of a first floor apartment measuring 1378 sq.ft. along with a car parking area measuring 125 sq. ft. in a building to be constructed by the opposite party. Under the terms of agreement, complainant was to pay Rs.4,00,000/- to the opposite party and also to exchange A schedule property by way of consideration for the said flat and car parking. Opposite party was to construct and handover an apartment on the first floor measuring 1378 sq.ft. within twenty months i.e. on or before 30th June, 1998. As per the agreement, complainant paid the sum of Rs.4,00,000/- to the opposite party. Opposite party delivered the possession of the flat on 8th June, 2000 instead of 30th June, 1998 i.e. with a delay of almost two years. Instead of giving the car parking area measuring 125 sq. ft., the opposite party gave only 65 sq. ft.. Complainant, alleging deficiency in service in having delivered the apartment two years later than the agreed date and in having failed to convey the possession of 125 sq. ft. car parking area, filed the complaint before the District Forum seeking directions to the opposite party to pay Rs.2,25,000/- being interest at the rate of 15% per annum on Rs.7,50,000/- for the period from 1st July, 1998 to 7th June, 2000 and to convey a car parking area of 125 sq. ft. with compensation and cost.
Opposite party, on being served, entered appearance and filed written statement contending that the complaint was bad for non-joinder of complainants daughter, Ms. Shalini Prabhu, who was a necessary party. On merits, it was contended that on execution of sale deed on 14th November, 2000 in favour of the complainant and her daughter there was novatio of the original contract and the complainant is not entitled to insist upon the terms of the original contract. It was further contended that the delay in completion of the work and in executing the sale deed was on account of the fact that the owner of the site while submitting the site under the provisions of the Karnataka Apartment Ownership Act submitted the land measuring only 9 cents instead of 10.55 cents originally agreed upon. That the consideration for the apartment constituted partly cash payment and partly transfer of schedule A property to the opposite party. That the complainant had conveyed a defective title to the property which amounted to failure of consideration. It was denied that there was an agreement to hand over car parking area measuring 125 sq.ft.. That the dispute between the parties involved complicated question of law and facts and, therefore, deserved to be referred to the Civil Court.
District Forum after taking into consideration the pleadings as well as evidence on record allowed the complaint and directed the opposite party to pay to the complainant Rs.1,80,000/- by way of compensation for delay in delivering possession of the flat. Opposite party was also directed to demarcate and deliver possession of 125 sq.ft. car parking area to the complainant failing which the opposite party was directed to pay compensation of Rs.15,000/-. Rs.2,000/- as cost of proceedings was also allowed.
Opposite party, being aggrieved, filed an appeal before the State Commission which, by the impugned order, has disposed of the appeal by directing the opposite party to pay the sum of Rs.1,00,000/- instead of Rs.1,80,000/-. Rest of the order of the District Forum was kept undistrubed.
Opposite party has filed the revision petition seeking setting aside of the direction to pay Rs.1,00,000/- whereas the complainant has filed the revision petition seeking restoration of the order of the District Forum directing the opposite party to pay the sum of Rs.1,80,000/-.
Counsel appearing for the opposite party contends that the fora below have erred in directing the opposite party to pay the compensation as the complainant had failed to convey the valid title as she did not have a clear title to A schedule property. In support of the contention, counsel for the opposite party has referred to a public notice published in Udayavani Kannada Daily dated 8th November, 2001. Since the complainant had failed to convey a clear title of the property, the opposite party is not liable to pay the compensation. In any case, complete consideration was not paid as the A schedule property remained with the complainant till 8th June, 2000. As against this, counsel for the complainant contends that the State Commission has erred in reducing the amount of compensation from Rs.1,80,000/- to Rs.1,00,000/-.
Counsel for the parties have been heard at length.
From the facts narrated above it is seen that there is a delay of two years in delivering the possession. As per agreement entered into between the parties on 26th October, 1996, the complainant was required to pay Rs.4,00,000/- to the opposite party and to convey the title of the A schedule property to the opposite party by way of consideration and the opposite party was to deliver the possession of the flat measuring 1378 sq.ft. to the complainant on or before 30th June, 1998. The complainant had paid the sum of Rs.4,00,000/- to the opposite party as per the agreement. The public notice referred to by the complainant is dated 8th November, 2001 which is subsequent to the handing over of the possession on 8th June, 2000. There is no evidence on record to show that during the relevant period the complainant did not have a clear title to schedule A property.
Admittedly, there is a delay of two years in handing over of the possession of the flat by the opposite party. Complainant has been deprived of the possession of the apartment as well as the use of his money between 30th June, 1998 i.e. the date on which the possession was to be delivered and 8th June, 2000 i.e. the date on which the possession was delivered. The opposite party enjoyed the benefit arising out of the receipt of Rs.4,00,000/- during this period without delivering the possession of the apartment to the complainant as has been agreed upon. The opposite party, under the circumstances, was guilty of deficiency in service. The fora below have rightly come to the conclusion that the opposite party was guilty of deficiency in service.
The District Forum had awarded the sum of Rs.1,80,000/- as compensation by calculating the amount payable at the rate of 12% per annum on the sum of Rs.7,50,000/- whereas the complainant had paid only Rs.4,00,000/- to the opposite party. The State Commission taking note of the fact that the complainant had paid the sum of Rs.4,00,000/- to the opposite party and the possession of the schedule A property remained with the complainant till 8th June, 2000 concluded that the damages are to be assessed on the amount of Rs.4,00,000/- only which were paid by the complainant to the opposite party till the delivery of possession. As such, the State Commission reduced the compensation of Rs.1,80,000/- to Rs.1,00,000/-. We agree with the view taken by the State Commission that the damages were required to be assessed on the amount of Rs.4,00,000/- only which had been paid by the complainant to the opposite party. No interest was liable to be paid on the value of the A schedule property as the possession of the same remained with the complainant till 8th June, 2000. The State Commission has rightly awarded the sum of Rs.1,00,000/- as compensation to the complainant. For the reasons stated above, we do not find any merit in either of these two revision petitions and dismiss both the revision petitions with no order as to cost.
. . . . . . . . . . . . . . . .
(ASHOK BHAN J.) PRESIDENT . . . . . . . . . . . . . . . .
(VINEETA RAI) MEMBER