State Consumer Disputes Redressal Commission
M/S.Gharge-Salunkhe Associates vs Mr.Shivaji Pandurang Sawant And ... on 23 September, 2014
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
First Appeal
No. FA/14/189
(Arisen out
of Order Dated 07/02/2014 in Case No. CC/12/10 of District Satara)
M/s.Gharge-Salunkhe Associates
Silver Arch, Plot No.1, S.No.288/2889
KaranjeTarf, New Radhika Road, Satara
Through its partners
1. Sudhir D.Gharge
R/o.Plot No.15, S.No.290/2,
KaranjeTarf, New Radhika Road, Satara
2. Rajaram S.Salunkhe
R/o.Plot No.15, S.No.290/2,
KaranjeTarf, New Radhika Road, Satara
...........Appellant(s)
Versus
1. Mr.Shivaji Pandurang Sawant
2. Mrs.Sheela Shivaji Sawant
Both R/o.154/1A, Kamathipura, Godoli
Satara
...........Respondent(s)
First Appeal
No. FA/14/349
Arisen out
of Order Dated 07/02/2014 in Case No. CC/12/10 of District Satara)
1. Mr.Shivaji Pandurang Sawant
2. Mrs.Sheela Shivaji Sawant
Both R/o.154/1A, Kamathipura, Godoli
Satara
...........Appellant(s)
Versus
M/s.Gharge-Salunkhe Associates
Silver Arch, Plot No.1, S.No.288/2889
KaranjeTarf, New Radhika Road, Satara
Through its partners
1. Sudhir D.Gharge
R/o.Plot No.15, S.No.290/2,
KaranjeTarf, New Radhika Road, Satara
2. Rajaram S.Salunkhe
R/o.Plot No.15, S.No.290/2,
KaranjeTarf, New Radhika Road, Satara
...........Respondent(s)
BEFORE:
HON'BLE MR. JUSTICE R.C.CHAVAN PRESIDENT
HON'BLE MR. Dhanraj Khamatkar Member
For the Appellant:
Original Complainant in person
For the Respondent:
Mr.Vijaysinh Salunkhe-Advocate along with
Mr.S.A.Patil-Advocate for the original opponent
ORDER
Per Honble Mr.Justice R.C.Chavan, President These appeals by the complainant and opponent questions an order passed by the District Consumer Disputes Redressal Forum, Satara partly allowing consumer complaint no.10/2012 and directing the opponent to execute sale deed in respect of 197.8 sq.ft. of area from flat no.G-105 on receiving Rs.1,15,000/- from the complainant after obtaining requisite permissions from the Municipal authorities and also execute sale deed in respect of flat no.G-106. Opponent was also directed to pay compensation quantified at Rs.50,000/- and costs Rs.5,000/-of the complaint.
Facts which are material for deciding these appeals are as under:-
The opponents had started construction of tenements in City Survey no.529 A/24, Sadar Bazar peth at Satara. Building was to be of 3 storeys with 6 flats on each floor.
Complainant booked a flat no.G-106 admeasuring 66.17 sq.meters. A registered agreement was executed on 01/10/2009. Price was fixed at Rs.15,00,000/- plus Rs.65,000/- for other expenditure. Complainant claims to have paid the amounts from time to time till 23/03/2010. The possession was actually delivered on 19/09/2010. The complainant wanted a change in the plan of flat no.G-105 and wanted to purchase one room adjacent to G-106 from flat no.G-105.
This room was to be purchased at the cost of Rs.3,15,000/-. Complainant claims to have paid Rs.2,00,000/- towards this room. However, the opponent did not deliver possession of this room, which the complainant wanted for running a tuition class. Since the opponent avoided to deliver possession of room from tenement G-105, complainant approached the forum.
Opponents appeared before the forum and opposed the complaint. After considering rival contentions, forum came to pass the impugned order.
Aggrieved thereby, both the parties are before us.
Heard appellant/org.complainant in person and Mr.Vijaysinh Salunkhe-Advocate along with Mr.S.A.Patil-Advocate for the opponent finally at sufficient length at the admission stage itself.
As far as flat no.G-106 is concerned, it is clear that there is an agreement between the parties and also receipts of payment of various amounts from time to time. There is therefore no reason why sale deed in respect of flat no.G-106 could not have been executed.
As far as room in flat no.G-105 is concerned, it was submitted by the opponent that there was no such agreement to provide such a room and flat no.G-105 has in fact been sold to a third party Mr.Mahendra Mohanrao Gharge by registered document dated 07/05/2011. Therefore, they stated that it is not possible to execute any conveyance in respect of one room from flat no.G-105.
It appears from the evidence placed on record that the opponents had in fact filed Special Civil suit no.556 of 2011 against the complainant seeking recovery of possession of flat no.G-106 in which the complainant had also filed counter claim. The suit is not shown to have disposed of as yet.
It also appears that the opponents filed a complaint case no.40/2012 against the complainant for an offence punishable under Negotiable Instrument Act in respect of dishonor of cheque of Rs.1,00,000/- bearing no.720698.
This criminal complaint has been decided and the complainant seems to have been acquitted in the said complaint.
On report by the complainant FIR bearing no.136/14 for an offence punishable under sections 428, 469 etc. of the Penal Code is also registered against the opponents. The evidence tendered by the parties in the criminal complaint has also been placed on record of the District Forum.
As already adverted as far as flat no.G-106 is concerned, it cannot be denied that the opponents had agreed to sell a flat to the complainant and a registered agreement was executed. It is stated by the opponents in para 6 of the written version that since the complainant wanted to obtain loan, he took some receipts from the opponent without actually paying these amounts. Now it is doubtful whether a builder would issue any receipts without having received those amounts. It was sought to be stated by the opponents that the complainant in fact executed an agreement on 18/09/2010 clearly mentioning that the receipts in question were issued without any amount being paid.
This agreement seems to have been notarized before a Notary. In respect of this agreement the complainant pointed out that the first para of the agreement refers to flat no.G-106. However, the figure 5 appears to have been changed to 6 and, there is an interpolation mentioning flat no.G-105 initialed by Mr.Sudhir Gharge one of the opponents.
In the second para no flat number was initially mentioned. Here too there is an interpolation mentioning flat number as G-105 initialed by Mr.Sudhir Gharge. These changes have not been initialed by the complainant.
Learned counsel for the opponents sought to place reliance on signatures of the complainant in the margin of the page. But they are not against the alterations made but indicative of the page being a part of the agreement. The agreement itself would show that the complainant did seek one room from flat no.G-105 and that the complainant wanted to obtain loan from financial institution for purchasing such a room. Now, act of the opponents referred to in second para of this very agreement on which they rely, about providing some receipts just to accommodate the complainant, would be indicative of their accepting the proposal of the complainant to purchase one room from flat no.G-105 and, therefore, it would not be open to the opponents to say that there was no such agreement of selling one room from flat no.G-105.
As already observed, no builder would ordinarily execute receipts for amounts not received. The opponents must be maintaining their books of account. They could have shown from the books of accounts maintained in the regular course of business that no such amounts as mentioned in the receipts were actually received by them. Such evidence was not tendered. In view of this, we find that the conclusions drawn by the District Forum are correct.
The complainant was aggrieved by the order of the forum directing him to pay a sum of Rs.1,15,000/-. According to the complainant, he paid a sum of Rs.20,45,000/- to the opponent against the total cost of Rs.18,80,000/-. In this context, it may be useful to examine as to what was the amount actually paid by the complainant towards the two flats in question. In para 5 of the complaint, the complainant had stated having paid a sum of Rs.1,00,000/- on 03/10/2008 in cash.
Again on 12/10/2008 a sum of Rs.1,50,000/- was paid in cash. Thereafter a sum of Rs.1,00,000/- was paid on 11/07/2009 by a cheque in the name of Accountant- Mr.Dilip Kadam. There was no reason for issuing a cheque in the name of accountant Mr.Dilip Kadam, if the amount was to be paid to the opponent/ builder.
The complainant would have to take appropriate steps against Mr.Dilip Kadam since the amount was paid to Mr.Dilip Kadam. After loan was sanctioned a sum of Rs.12,70,000/- was paid by the bank in two installments of Rs.12,00,000/- and Rs.70,000/- on 18/11/2009 and 23/03/2010. Thus, the total sum paid would come to Rs.15,20,000/- and not Rs.16,20,000/- as stated by the complainant against the total amount of Rs.15,65,000/- which had been agreed to be paid.
As far as transaction in respect of one room in G-105, the complainant claims to have paid a sum of Rs.1,00,000/- on 05/08/2009. Further a sum of Rs.1,00,000/- was paid by cheque which was to be tendered to the bank only at the time of delivery of possession.
Therefore, the cheque is obviously not encashed and in respect of very same cheque there was possibly that criminal complaint of dishonor of cheque. Thus, for the room in flat no.G-105 only a sum of Rs.1,00,000/- has been paid. Even the complainant had stated that he was ready to pay balance of Rs.1,60,000/-. In para 6 of the complaint he arrives at the figure of Rs.1,60,000/- by stating that Rs.55,000/- were paid in excess in respect of flat no.G-106. This excess payment in respect of flat no.G-106 is arrived at by adjusting cheque issued to Mr.Dilip Kadam for Rs.1,00,000/-, which would not be permissible. Thus the claim of the complainant that he was not liable to pay Rs.1,15,000/- towards flat no.G-105 and that the forum should not have passed such an order is not correct.
In the appeal filed by the complainant he had sought loss of Rs.50,000/- per month for 55 months due to lack of sitting arrangement of 25 students in each batch of students in tuition classes which he was to conduct.
Complainant cannot obviously get such an amount because he could not have run a tuition class in residential premises. In any case, such claim would have taken out the complaint from the jurisdiction of the District Forum. Various items of other losses, which he has claimed aggregating to Rs.90,00,000/- in the memo of appeal are, to say the least, exaggerative and thoroughly unjustified. Compensation of Rs.52,000/- awarded by the District Forum is proper and we do not see any reason to alter it.
To sum up, the complainants exaggerative claims were rightly not entered by the forum. In fact, in respect of flat no.G-106 on the sum of Rs.1,00,000/- allegedly paid to Mr.Dilip Kadam being excluded, the complainant would have to pay Rs.55,000/- towards that flat. He would also have to pay Rs.1,15,000/- towards room in flat no.G-105 as held by the District Forum.
In view of this, we pass the following order:-
ORDER Appeal by the opponents bearing no.FA/14/189 is partly allowed and appeal bearing no.FA/14/349 by the complainant is dismissed. Impugned order is modified as under:-
Opponents are directed to execute within one month sale deed in respect of flat no.G-106 on receiving a sum of Rs.55,000/- from the complainant. The opponent shall also execute within one month sale deed in respect of one room in flat no.G-105 and deliver possession thereof on receipt of sum of Rs.1,15,000/- from the complainant after getting necessary sanction from the Municipal authorities.
The opponents shall pay within one month to the complainant compensation of Rs.50,000/- towards mental and physical harassment and shall also pay costs quantified at Rs.5000/-.
Both the parties shall bear their own costs in appeal.
This order shall be subject to decision in Special Civil Suit no.556/2011 since the parties have raised some disputes before the Civil Court.
Pronounced on 23rd September, 2014.
[HON'BLE MR.
JUSTICE R.C.CHAVAN] PRESIDENT [HON'BLE MR.
Dhanraj Khamatkar] Member Ms.