State Consumer Disputes Redressal Commission
M/S Tolaram & Co vs Smt Manaswi Prakash Manchekar on 8 October, 2018
A/16/102
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Appeal No. A/16/102
(Arisen out of order dated 09/09/2015 passed in complaint No.100/2010 by Addl.
Mumbai Suburban)
1. M/s.Tolaram & Co.
Lalasis, Plot No.219, 11th Lane,
Chembur, Mumbai-400 071.
2. Shri Mohan Kukreja
Partner, M/s.Tolaram & Co.
Lalasis, Plot No.219, 11th Lane,
Chembur, Mumbai-400 071.
3. Shri Sunil Kukreja
Partner, M/s.Tolaram & Co.
Lalasis, Plot No.219, 11th Lane,
Chembur, Mumbai-400 071. ...........Appellant (s)
Versus
1. Smt.Manaswi Prakash Manchekar
Residing at 803, Ram Lakshman Tower,
Plot No.5 & 6, Sector-18,
Near Mafco Market, Vashi,
Navi Mumbai - 400 705.
2. The President/Secretary
M/s.Ram Lakshman Tower
Sahakari Gruhnirman Sanstha,
Plot No.5 & 6, Sector-18,
Near Mafco Market, Vashi,
Navi Mumbai - 400 705. ............Respondent (s)
BEFORE:
D.R. Shirasao PRESIDING JUDICIAL MEMBER
A. K. Zade MEMBER
For the Mrs.Anita Marathe, Advocate for
Appellant: appellants.
For the None present for respondents.
Respondent:
ORDER
Per Mr.D.R. Shirasao, Hon'ble Presiding Judicial Member Being aggrieved by the judgment and order dated 09/09/2015 passed by the Learned Addl. District Forum, Mumbai Suburban in Page 1 of 12 A/16/102 consumer complaint No.100/2010 directing opponent Nos.1to3 to pay amount in respect of less area of 109 sq.ft. to complainant @ Rs.1500/- per sq.ft. along with interest on that amount along with refund of amount of Rs.1525/- recovered for giving separate electric meter and to pay amount of Rs.50,000/- to complainant in respect of fixing ceramic tiles in place of marble tiles along with costs and compensation, opponent Nos.1to3 have preferred this appeal.
2. Brief facts of the case are as under :-
Respondent No.1-org. complainant filed complaint against appellants/opponents for getting different amounts recovered by them from complainant along with getting amount in respect of giving less area of the flat along with costs and compensation. Complainant submitted that she had booked flat No.803 with opponent Nos.1to3 from building Ram Lakshman admeasuring 542 sq.ft. @ Rs.1500/- per sq.ft. total amounting to Rs.8,13,000/-. For that purpose, she had deposited amount of Rs.25,000/- with opponents. Employee of opponents had given copy of agreement to complainant on 22/07/2003 and obtained her signature on it without disclosing the facts mentioned in it. Said agreement was registered on 24/07/2003. She submitted that by that time she had deposited amount of Rs.83,115/- with opponents. In respect of balance amount of Rs.7,72,000/- she had obtained loan from M/s.Standard Chartered Bank, Lower Parel, Mumbai and had paid that amount to opponents. She submitted that in spite of amount of sale consideration, opponent Nos.1to3 had recovered amount of Rs.1500/- towards formation of Society and registration of society, amount of Rs.360/- towards share money of society, amount of Rs.6504/- towards property tax, amount of Rs.2500/- for giving electric and water connection and amount of Rs.15,000/- as security deposit and amount of Rs.10,081/- as advance maintenance charges for period from July 2003 to June 2004 along with Page 2 of 12 A/16/102 amount of Rs.750/- for miscellaneous expenditure and amount of Rs.5420/- towards water tax. Hence, it is the contention of complainant that along with sale consideration she had paid total amount of Rs.8,55,115/- to opponent No.1to3.
3. She further submitted that as per agreement opponent Nos.1to3 had agreed to fix marble tiles in the flat. It is the contention of the complainant that as per agreement she had received possession of flat from opponent Nos.1to3 on 09/08/2003. At that time, she came to know that opponent Nos.1to3 had not fixed marble tiles and instead of that fixed ceramic tiles in the flat. It is the contention of the complainant that for obtaining loan from the Bank she was required to deposit original agreement with the Bank and after repayment of entire loan amount she received original agreement from the Bank along with No Dues Certificate from the Bank on 12/01/2009. At that time she learnt that the area of the flat mentioned in agreement is 433 sq.ft. instead of 542 sq.ft. Hence, it is the contention of the complainant that she has received less area of 109 sq.ft. from opponent Nos.1to3 and as per rate of consideration of flat of Rs.1500/- per sq.ft. she is entitled to get amount of Rs.1,63,500/- from opponent Nos.1to3. She also submitted that opponent Nos.1to3 had not formed society of flat purchasers and all the flat purchasers had formed their society and registered the same. Hence, it is the contention of complainant that amount taken by opponent Nos.1to3 in respect of formation of society, registration of society is to be refunded back to her. She has also claimed amount of Rs.1500/- taken by opponent Nos.1to3 towards formation of society and registration of society and amount of Rs.360/- towards share money of society and amount of Rs.7561/- towards maintenance of building, amount of Rs.6504/- towards property tax, amount of Rs.1500/- towards electric connection and amount of Rs.15,000/- taken as security deposit. She has also claimed amount of Rs.8500/- taken by opponent Page 3 of 12 A/16/102 Nos.1to3 towards water charges. She has claimed amount of Rs.1 Lakh as compensation for fixing ceramic tiles instead of marble tiles in the flat and compensation of Rs.10 Lakhs towards mental pain and agony and towards cost of litigation. It is the contention of the complainant that she learnt about less area of the flat in the year 2009 when she received original copy of agreement from the Bank and as such the complaint filed by her is within limitation.
4. Opponent Nos.1to3 contested the complaint by filing their written version on record. They denied all the rival allegations made by the complainant against them. They submitted that complainant cannot claim conveyance of the property as Society is already formed. Only Society can claim conveyance in respect of property. They also submitted that claim made by the complainant is out of limitation and hence, she is not entitled to get the same. They also submitted that complaint filed by the complainant is beyond pecuniary jurisdiction of the District Forum. They specifically denied that they had given less area of flat to complainant. Hence, they submitted that they have not given any deficiency in service to complainant and hence, complaint filed by the complainant be dismissed.
5. Opponent No.4-Society had also contested the complaint by filing their separate written version on record. However, they submitted that in respect of claim made by the complainant, they have no concern about the same and hence, complaint filed by the complainant be dismissed against them.
6. Considering rival contentions of parties, evidence adduced by them on record and documents filed by them on record, the Learned District Forum had come to conclusion that monetary claim made by the complainant against opponent Nos.1to3 is not within limitation and hence, Page 4 of 12 A/16/102 rejected the same. However, Learned District Forum had come to conclusion that by giving less area of flat, opponent Nos.1to3 had given deficiency in service to complainant. Hence, they directed opponent Nos.1to3 to give amount in respect of less area of 109 sq.ft. to complainant @ Rs.1500/- per sq. ft. along with interest on that amount. The Learned District Forum had also directed opponent Nos.1to3 to give amount of Rs.50,000/- for fixing ceramics tiles in the flat instead of marble tiles and directed to refund amount of Rs.1525/- to complainant recovered for giving separate electric connection along with costs and compensation. Being aggrieved by the same, opponent Nos.1to3 have preferred this appeal.
7. Heard Learned Advocate appearing for appellants. She submitted that the Learned District Forum had come to conclusion that monetary claim made by the complainant against opponent Nos.1to3 is not within limitation and rejected the same. She submitted that however, the Learned District Forum had wrongly come to conclusion that the cause of action in respect of getting less area of the flat is continuous and complainant is entitled to get amount in that respect from opponent Nos.1to3. She submitted that contention of complainant cannot accepted that she was not knowing area of the flat mentioned in the agreement at the time of registration of agreement and she learnt about the same for the first time in the year 2009 when she received original agreement from the Bank after repayment of loan amount. She submitted that the area of flat mentioned in the agreement is of 433 sq.ft. and the flat of that much area was already given to the complainant. In respect of less area of flat as per Brochure, the complainant has not made any grievance with opponent Nos.1to3 at the time of registration of agreement. Hence, in that respect, complainant is estopped from making any grievance after registration of agreement. Agreement of sale of flat was registered in the year 2003 and complainant Page 5 of 12 A/16/102 has already received possession of flat on 09/08/2003. Since then she had not made any grievance in respect of less area of flat within a period of two years from the same. Hence, claim made by the complainant in respect of less area of the flat is also barred by limitation and complainant is not entitled to get amount about the same from opponent Nos.1to3.
8. She also submitted that at the time of taking possession of flat on 09/08/2003 complainant had received knowledge that the tiles fixed in the flat are ceramic tiles and not marble tiles. Hence, in that respect also she was required to file complaint against opponent Nos.1to3 within a period of two years. However, complaint is filed in the year 2010 and hence, complaint made by the complainant in that respect is also not within limitation. She submitted that as the Learned District Forum had rejected other monetary claim made by the complainant, complainant is also not entitled to get Rs.1525/- from opponent Nos.1to3 towards giving separate electric connection.
9. Learned Advocate appearing for appellants submitted that as per statement of claim, total monetary claim made by the complainant is Rs.16,16,926/-. However, to ascertain jurisdiction in respect of complaint, complainant has not added sale consideration of the flat in this amount. If sale consideration of the flat is included in it, then complaint is beyond the pecuniary jurisdiction of the Learned District Forum. Hence, she submitted that for this reason also complaint filed by the complainant is not tenable. However, the Learned District Forum had not considered all these facts and wrongly directed opponent Nos.1to3 to give amount to complainant in respect of less area of flat and in respect of fixing ceramic tiles in the flat and amount of Rs.1525/- recovered for giving separate electric connection to complainant along with costs and compensation. Hence, she submitted that the order passed by the Learned District Forum Page 6 of 12 A/16/102 is to be set aside by allowing this appeal.
10. Learned Advocate for appellants/opponent Nos.1to3 for that purpose relied upon following rulings :-
(i) Order passed by Hon'ble Supreme Court in Civil Appeal No.2067/2002 on 20/03/2009 [State Bank of India V/s. M/s.B.S. Agricultural Industries (I)].
In this case, Hon'ble Supreme Court considered that when claim is not within limitation and no application for condonation of delay is filed, the complaint cannot be entertained as it is barred by limitation.
(ii) Order passed by Hon'ble National Commission in Complaint No.97/2016 on 07/10/2016 [Ambrish Kumar Shukla & Ors. V/s. Ferrous Infrastructure Pvt. Ltd.] In this case, Hon'ble National Commission considered that for considering pecuniary jurisdiction of the complaint the value of the goods or services and compensation claimed will have to be considered.
(iii) Order passed by Hon'ble National Commission in Revision Petition No.3855/2011 on 12/04/2013 [Standard Chartered Bank V/s. Krishan Lal Juneja] In this case, loan was taken by the complainant, his son and daughter-in-law. However, complaint was filed by complainant without including his son and daughter-in-law as party to the complaint. Hon'ble National Commission considered that the complaint is not maintainable for non-joinder of necessary parties.
11. No one appeared for respondent/complainant although respondent/complainant was duly served in appeal and husband of Page 7 of 12 A/16/102 respondent had appeared on her behalf. We had gone through the record of the case and decide the appeal on merit.
12. Perused record of the case. On perusal of the same, it has become clear that respondent/complainant along with her husband had booked flat No.803 situated in Ram Lakshman Tower with opponent Nos.1to3. In that respect agreement was executed on 22/07/2003 and the same was registered on 24/07/2003. Copy of agreement is produced on record. On perusal of the same, it has become clear that although agreement was executed by complainant and her husband, complaint is filed only by complainant and she had not impleaded her husband as party to proceeding. As per this agreement complainant had deposited the entire amount of sale consideration to opponent Nos.1to3 and had received possession of the flat on 09/08/2003.
13. It is the contention of complainant that opponent Nos.1to3 had recovered additional amount from her, apart from amount of sale consideration on different counts, however, had not performed those duties and hence, she is entitled to get amount recovered from her from opponent Nos.1to3. However, on perusal of order passed by the Learned District Forum, it has become clear that the entire monetary claim made by the complainant against opponent Nos.1to3 is rejected by the Learned District Forum on the ground that the same is not within limitation. Complainant has not preferred any appeal against the order and hence, she has accepted the same.
14. On perusal of order passed by the Learned District Forum, it has become clear that the Learned District Forum had held opponent Nos.1to3 responsible for giving less area of the flat to complainant of 109 sq.ft. Hence, the Learned District Forum had directed opponent Nos.1to3 to give Page 8 of 12 A/16/102 amount in that respect @ Rs.1500/- per sq.ft. to complainant along with interest on that amount. For that purpose, the Learned District Forum had considered that the cause of action is continuous. However, we are of the opinion that cause of action for getting amount for getting less area of the flat cannot be continuous. Complainant had already received possession of flat on 09/08/2003. At that time she must have received information about less area of the flat. However, in that respect she had not made grievance within a period of two years from the date of receipt of possession of flat. On perusal of agreement it has become clear that the area of the flat mentioned in the agreement is 433 sq.ft. and that much area of the flat is already given in possession of complainant. It is the contention of complainant that in Brochure the area of the flat was mentioned as 542 sq.ft. It is also her contention that on 22/07/2003 copy of agreement was given to her and obtained her signature and thereafter that agreement was registered on 24/07/2003. Hence, she had no knowledge of area mentioned in the agreement. It is also her contention that she learnt area of the flat when she had repaid amount of loan taken from the Bank and received original agreement from the Bank in the year 2009. Hence, it is her contention that her claim in respect of less area is within limitation. However, we are of the opinion that contention of the complainant in this respect cannot be accepted. The area mentioned in the Brochure cannot be subject matter of the dispute. We have to see what is the area of the flat mentioned in the agreement as complainant has filed complaint to execute the agreement executed by opponent Nos.1to3. In the agreement, area of the flat is mentioned as 433 sq.ft. and that much area of the flat is already given in possession of the complainant. The contention of the complainant also cannot be accepted that she was not knowing the area of the flat mentioned in the agreement at the time of execution of agreement. As per her own submission, agreement was given Page 9 of 12 A/16/102 to her by employee of opponent Nos.1to3 on 22/07/2003 and obtained her signature on that agreement. It was duty of the complainant to go through the agreement thoroughly and thereafter, sign the same. The said agreement was registered on 24/07/2003. At that time also complainant must be present. In this case, it is particular to note that complainant had obtained original agreement from opponent Nos.1to3. On the basis of that agreement she had taken loan from the Bank. The Bank also at the time of giving loan consider the loan amount on the basis of area of the flat. Hence, at the time of sanctioning loan to the complainant, officer of Bank must have considered area of the flat mentioned in the agreement. Hence, contention of complainant cannot be accepted that at that time she was not knowing area of the flat and she learnt about the same in the year 2009 when she received original agreement from the Bank after repayment of loan amount. In respect of less area of flat mentioned in the agreement, complainant had not made any grievance from the date of execution of agreement till filing of complaint. Hence, cause of action for claiming amount in respect of less area of flat is not within limitation. Moreover, as per agreement, possession of flat is given to complainant and as per agreement area of flat given in possession of complainant is the same. Hence, we are of the opinion that that the Learned District Forum had erred in directing the opponent Nos.1to3 to give amount to complainant in respect of less area of flat of 109 sq.ft. @ Rs.1500/- per sq.ft. along with interest on that amount.
15. Complainant had received possession of flat on 09/08/2003 at that time she learnt that instead of marble tiles, ceramic tiles are fixed in the flat. Hence, since 2003 she had to make grievance about the same by filing complaint within a period of two years. However, she had not made any grievance about the same till filing of this complaint in the year 2010. Hence, we are of the opinion that the claim of complainant in this respect Page 10 of 12 A/16/102 is also not within limitation. However, the Learned District Forum has wrongly considered that the claim of complainant is continuous and directed the opponent Nos.1to3 to give amount of Rs.50,000/- to complainant for that purpose.
16. When the Learned District Forum has already rejected the monetary claim of complainant, complainant is also not entitled to get Rs.1525/- from opponent Nos.1to3 recovered for giving separate electric connection to complainant.
17. On perusal of complaint and statement of claim filed along with complaint, it has become clear that complainant has claimed total monetary claim of Rs.16,16,926/- in the complaint against opponent Nos.1to3. As all these claims are in respect of flat purchased by complainant from opponent Nos.1to3, for consideration of pecuniary jurisdiction, amount of sale consideration of the flat also will have to be included in this amount as per ruling relied upon by the Learned Advocate for appellants in Ambrish Kumar Shukla's case. If the amount of sale consideration of Rs.8,13,000/- is included in this monetary claim made by the complainant, then in that event, complaint is beyond the pecuniary jurisdiction of the District Forum. It cannot be considered that this principle will not be applicable at that stage as by this ruling the law which is already prevailing is explained. For this reason, we are of the opinion that the complaint filed by the complainant was beyond pecuniary jurisdiction of the District Forum. The Learned District Forum had not considered all these facts. Hence, we are of the opinion that the order passed by the Learned District Forum is to be set aside by allowing this appeal. Hence, we proceed to pass the following order :-
-: ORDER :-
1. Appeal is hereby allowed. The impugned order passed by the Page 11 of 12 A/16/102 Learned District Forum in consumer complaint No.100/2010 on 09/09/2015 is hereby set aside.
2. Complaint filed by the complainant is hereby dismissed.
3. Parties to bear their own costs.
4. Copies of the order be furnished to the parties.
Pronounced Dated 8th October 2018.
[ D.R. Shirasao ] PRESIDING JUDICIAL MEMBER [A. K. Zade] MEMBER dd.
Page 12 of 12