State Consumer Disputes Redressal Commission
Shri Kailash S. Shinde, Prop. ... vs Shri Eknath Pandurang Asabe & Ors. on 30 June, 2010
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI FIRST APPEAL NO. 731 OF 2008 Dt. of filing : 20/05/2008 IN CONSUMER COMPLAINT NO. 143 OF 2007 Dt. of order : 30/06/2010 DISTRICT CONSUMER FORUM : RAIGAD Shri Kailash S. Shinde Prop. M/s.Pravin Constructions R/at Prerna Co-op. Hsg. Society, F-76/10, Sector 12, Kharghar, Navi Mumbai 410 210. Appellant/org. O.P. V/s. Shri Eknath Pandurang Asabe R/o. LIC II, Sector-2 E, Room No.C-19, Kalamboli, Navi Mumbai. Respondent/org. complainant. AND FIRST APPEAL NO. 732 OF 2008 Dt. of filing : 20/05/2008 IN CONSUMER COMPLAINT NO. 144 OF 2007 Dt. of order : 30/06/2010 DISTRICT CONSUMER FORUM : RAIGAD Shri Kailash S. Shinde Prop. M/s.Pravin Constructions R/at Prerna Co-op. Hsg. Society, F-76/10, Sector 12, Kharghar, Navi Mumbai 410 210. Appellant/org. O.P. V/s. Shri Radheshyam Maharana R/o. Plot No.3-A/104, Sai Ganesh Co-op. Housing Society, Devasthan, Ratnanagar, S.M.Road, Chunabatti, Mumbai 400 022. Respondent/org. complainant. AND FIRST APPEAL NO. 733 OF 2008 Dt. of filing : 20/05/2008 IN CONSUMER COMPLAINT NO. 145 OF 2007 Dt. of order : 30/06/2010 DISTRICT CONSUMER FORUM : RAIGAD Shri Kailash S. Shinde Prop. M/s.Pravin Constructions R/at Prerna Co-op. Hsg. Society, F-76/10, Sector 12, Kharghar, Navi Mumbai 410 210. Appellant/org. O.P. V/s. Shri Ganeshprasad Kanaiyyalal Gupta Room No.9, Gokul Singh Punjabi Chawl, Near Sion Talao, Mumbai-400 022. Respondent/org. complainant. Quorum : Shri P.N. Kashalkar, Honble Presiding Judicial Member
Mrs.S.P. Lale, Honble Member Appearance : Mr.U.B. Wavikar, Advocate for the appellant.
Mrs.Anita Marathe, Advocate for the respondents.
-: ORAL ORDER :-
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member By this common judgement, we are disposing of these three appeals filed by org. O.P.-M/s.Pravin Constructions against the judgement and award passed by District Consumer Disputes Redressal Forum, Raigad in consumer complaint Nos.143, 144 & 145/2007 decided on 04/04/2008. By allowing complaints partly, Forum below directed O.P. to give to the complainant in complaint No.143/2007 possession of room No.24 after procuring Occupation Certificate from the concerned authority/CIDCO and if he fails to give possession with Occupation Certificate, he should pay per month Rs.2,500/- from the date of order till giving actual possession. Forum below also partly allowed complaint Nos.144 & 145/2007 and directed possession of room Nos.11 & 15 respectively be given to the complainant in those complaints and also awarded Rs.10,000/- as compensation to all the complainants for mental harassment and Rs.2,000/- as cost to all the complainants. Aggrieved by this order, three appeals came to be filed by M/s.Pravin Constructions/org. O.P. The case of the parties in nutshell may be stated as under :-
Complainants in all the complaints were member of Shree Siddhivinayak co-op. Housing Society and they were allotted plot No.B-42, Sector-6 at New Panvel (East), Tal. Panvel, District Raigad by the CIDCO. The Society entered into an agreement with M/s.Pravin Constructions for construction of row-houses. Every row-house was agreed to be constructed for total sum of Rs.2 Lakhs. Accordingly, complainant/Shri Eknath Pandurang Asabe in complaint No.143/2007 agreed to pay total consideration of Rs.2,15,000/- for row-house No.24 having ground floor and upper floor structure and complainant accordingly in all paid Rs.2,15,000/- to the O.P. and O.P. was supposed to give possession of the said row-house on or before 15/01/2007 but, he failed and neglected to give possession, complainant pleaded that he was forced to live in a rented house on leave and licence basis and he was required to pay Rs.2,000/- per month as licence fee. Complainant pleaded that O.P. has failed to construct row-house despite receiving Rs.2,15,000/-. Complainant sent registered notice dated 23/08/2007 calling upon the O.P. to construct the remaining construction within 15 days and to hand over peaceful possession, but he avoided to give possession or to comply with the notice sent by the complainant and therefore, complainant filed consumer complaint for getting possession of room No.24. He also demanded penalty charges of Rs.52,352/- and also claimed Rs.24,000/- for 12 months as licence fee. He also claimed Rs.1 Lakh for mental harassment.
O.P. filed written statement and denied the allegations made by the complainant. According to O.P. he had simply taken contract to construct the row-house. It was the duty of the Society to take necessary steps. The complainant had not paid moneys to him but other than three row-house owners, all other persons had given payment and he had given possession of the row-houses to them. O.P. pleaded that in fact there was an agreement to construct 24 units between him and Society, but since he was not getting moneys from the Society, Society in its General Body Meeting held that work should be got done individually by collecting moneys from the respective row-house owners. In terms of that agreement, he completed construction in August 2006. He was not guilty of deficiency in service. Out of 23 row-houses 20 persons had made payment and had taken possession without any murmur. But, applicant is required to pay total amount of Rs.61,720/- with interest thereon @ 18% p.a. and since applicant is not paying the same, he has not given possession to the complainant and therefore, he prayed that complaint should dismissed with cost.
In consumer complaint No.144/2007 Mr.Radheysham Maharana was the complainant. He is also one of the row-house owners. He pleaded that he had also booked row-house through Shree Siddhivinayak Co-op. Housing Society. Society awarded a contract to Shri Kailash Shinde, Proprietor of M/s.Pravin Constructions. He had paid certain dues from time to time totally amounting to Rs.1,42,500/-. Initially for an amount of Rs.1,90,000/- O.P. had agreed to give row-house No.11 as per fresh agreement entered into between him and M/s.Pravin Constructions on 24/09/2006 and within three months construction was to be completed. He paid total amount of Rs.1,42,500/- and balance amount of Rs.47,500/- was supposed to be paid by the complainant to the O.P. only after entire construction was completed and possession is handed over to the complainant. According to the complainant, O.P. has not yet completed plumbing work, electrical work, flooring work and has not made said row-house inhabitable in all respects. He was required to stay in rented house and he had to pay monthly licence fee of Rs.6,000/-. Complainant pleaded that due to delay in completion of said work, complainant had to pay penalty of Rs.37,628/- to the CIDCO. According to the complainant, as per agreement dated 24/09/2006 O.P. agreed to construct row-house bearing No.11 on the land allotted to the complainant by CIDCO for lump sum construction of Rs.1,90,000/-. Said amount was paid in four installments. He had paid three installments. Complainant pleaded that O.P. is not completing construction and therefore, he is required to pay monthly licence fee of Rs.6,000/-. He has also pleaded that complaint should be allowed and O.P. should be directed to hand over possession of the premises as per agreement and he should be directed to pay CIDCO penalty charges of Rs.37,628/- and should also be awarded Rs.72,000/- towards annual licence fee he was required to pay for alternate accommodation. He also claimed Rs.1 Lakh as compensation for mental harassment.
O.P. filed written statement and pleaded that initially he was given contract to construct 24 units of row-houses by the Society, but for about eight years payment was not forthcoming and therefore, in 2003 he again contacted Society, meeting was called and Society decided that work should be completed by collecting individual charges from the members directly. Therefore, he again started construction and completed somewhere it in August 2006. He had not been guilty of deficiency in service. Out of 23 row-houses, 20 persons had given him payment and taken possession of the same. The complainant is not inclined to make payment. He has to recover from the complainant Rs.1,11,720/- with interest thereon @ 18% p.a. and therefore, he pleaded that complaint should be dismissed with costs.
In the third complaint No.145/2007 Mr.Ganeshparasad Kanahailal Gupta is the complainant. He is also one of the row-house owners and was member of Shree Siddhivinayak co-op. Housing Society. Initially, Society had given contract to M/s.Pravin Constructions/O.P. to construct 24 units of row-houses. For about 8 years because of non-payment of dues, O.P. could not complete construction and hence, in the year 2003 O.P. again contacted Society and its members, then Society decided that work remained to be completed should be completed by the O.P. by collecting individual dues from the members directly and at their expenses their units should be completed. Accordingly, 20 persons paid him dues and took possession, but only three persons had not paid the dues. He pleaded that he has to recover Rs.61,720/- from the complainant and it is for this reason he has not given possession of the row-house to the complainant. He therefore prayed that complaint should be dismissed with costs.
On the basis of affidavits and documents placed on record, the Forum below held that all the three complainants had paid the dues as per agreement and extra demand made by the O.P. was not justifiable one. Dues he was asking for was not at all payable by the complainants and despite getting full amount, complainants were denied possession of their row-houses and therefore, by the impugned award, Forum below directed the O.P. to give possession of the row-houses to all the three complainants and directed O.P. to complete room No.24 of Shri Asabe by completing incomplete construction. In the case of row-house of Shri Asabe, Forum below directed the O.P. to procure Occupation Certificate from the CIDCO and also directed him to pay Rs.2,500/- per month from the date of order till Occupation Certificate is procured and possession is given to the complainant/Shri Asabe. In respect of other two complainants, O.P. was simply directed to give possession of room Nos.11&15 and O.P. was directed to give each of the complainant Rs.10,000/- for mental harassment and Rs.2,000/- as cost. Aggrieved by this order, three appeals came to be filed by M/s.Pravin Constructions/org. O.P. We heard Mr.U.B. Wavikar, Advocate for the appellant/M/s.Pravin Constructions and Mrs.Anita Marathe, Advocate for the respondents/org. complainants.
We are finding that initially row-house were to be constructed by the O.P. within period of 12 months. Then it was extended to 18 months by agreement. Initially, agreement was between Society and M/s.Pravin Constructions. But, the project was delayed because some of the members were not paying dues in terms of installments. Construction of this housing complex virtually stopped and for eight years nothing could be done. But, thereafter in the year 2003 M/s.Pravin Constructions contacted Society and office bearers and members and then it was decided that project should be completed by collecting individual dues from the members themselves directly without intervention of the Society. Accordingly, from 2003 to August 2006 appellant completed construction of row-houses except probably row-house of Shri Eknath Asabe and he also procured Occupation Certificate from the CIDCO. We are finding that Shri Asabe had paid Rs.2,15,000/- directly to Shri Kailash Shinde, Proprietor of M/s.Pravin Constructions i.e. appellant herein and he had made payment of Rs.1,16,200/- to Shree Siddhivinayak co-op. Housing Society in initial days. So, in all he had paid Rs.3,31,200/- for this construction. But, still Shri Asabe was not been given possession of the row-house only on the ground that he had not paid dues to the extent of Rs.61,720/-. However, since there is enormous delay, CIDCO has imposed penalty of about Rs.32,000/- on each of the row-house owners and complainants were required to pay the said amount to save their row-houses. Thus, we are finding that as far as Shri Asabe is concerned he has paid total amount of Rs.3,31,200/- and it is just consideration for construction of row-house made in two phase. Earlier at the direction of Shree Siddhivinayak co-op. Housing Society between 1996-1998 and then during 2003-06 payment was directly made to Shri Kailash Shinde/appellant herein. When total amount paid is Rs.3,31,200/- Forum below found that complainant is not owing anything to the builder and builder is supposed to give possession of the row-house after completing incomplete construction and he should give possession of the row-house after procuring Occupation Certificate from the CIDCO. Forum below also awarded Rs.2,500/- per month as compensation to Shri Asabe because builder has not procured Occupation Certificate for the row-house of Shri Asabe from CIDCO from the date of order till he procures Occupation Certificate and gives possession of row-house to Shri Asabe. Forum below directed that he should pay Rs.2,500/- towards rent to complainant/Shri Asabe. In respect of other two complainants, Forum below was satisfied that they had made their dues and just to avoid giving possession, appellant put forth false claim that he has to recover certain dues from these complainants. Forum below brushed aside said defence of the O.P. and directed possession should be given to all the row-house owners by the builder without any hitch. From the compilation given by Advocate Mrs. Marathe, we are finding that Shri Ganeshprasad Gupta one of the complainant and respondent herein has made total payment of Rs.2,86,500/- to Shri Kailash Shinde of M/s.Pravin Constructions and he had earlier made payment to the Society of Rs.1,15,000/-. So, Forum below found that Shri Ganeshprasad Gupta has made whole of the payment and nothing was payable by Shri Gupta to the appellant herein. Forum below found that Shri Maharana had also made payment initially to the Society and then to the builder and totally he has paid Rs.1,42,500/- to the builder as per new agreement between him and builder entered into in 2006. Shri Maharana has mentioned in his complaint that he has to pay last installment of Rs.47,500/- at the time of taking possession of the row-house, but he has paying licence fee or Rs.6,000/- per month from January 2007 and therefore, Forum below took that fact into account and directed the builder to give possession of the flat without any murmur to this complainant also and allowed the complaints accordingly.
We are finding that in view of discussion above, the order passed by the Forum below in favour of complainants/respondents herein and against the appellant is well sustainable in law and we cannot find any error in the finding recorded by the Forum below. Builders are always greedy and they go on increasing the cost of flats on one or other count. The appellant/builder had not quantified the amount payable by each row-house owner, when he started taking individual charges for completing construction, but when they had paid everything, he again put forth his claim that he has to recover certain dues from each of the complainants. Forum below held that nothing was payable by all the three respondents herein and by the impugned award, Forum below directed the appellant herein to give possession of the row-houses to all the three complainants and also directed to give Rs.10,000/- as compensation to each of the complainants for mental harassment and Rs.2,000/- as cost.
In the light of discussions made above, we are finding that the order passed by the Forum below is appearing to be just and proper. Appeals filed by appellant herein are devoid of any substance. In the circumstances, we pass the following order :-
-: ORDER :-
1. Appeal Nos.731 to 733/2008 are dismissed.
2. Parties are left to bear their own costs.
3. Record & Proceedings in consumer complaint Nos.143 to 145/2007 be sent back to the District Consumer Disputes Redressal Forum, Raigad.
4. Complainant/Shri Radheshyam Maharana in complaint No.144/2007 is supposed to pay last installment of Rs.47,500/- to the appellant as per his own averment made in the complaint.
5. Copies of the order be furnished to the parties.
(S.P. Lale) (P.N. Kashalkar) Member Presiding Judicial Member