National Consumer Disputes Redressal
Kumar Builder & 6 Ors. vs Kalyani T. Deshpande & 2 Ors. on 1 February, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1472 OF 2015 (Against the Order dated 13/04/2015 in Appeal No. 894/2014 of the State Commission Maharastra) WITH
IA/3776/2015,IA/4077/2015,IA/4167/2015,IA/4722/2015 1. KUMAR BUILDER & 6 ORS. HAVING ITS OFFICE AT 10TH FLOOR, KUMAR BUSINESS CENTRRE,CTS NO-29,BUND GARDEN ROAD,
PUNE - 411001 MAHARASHTRA ...........Petitioner(s) Versus 1. KALYANI T. DESHPANDE & 2 ORS. R/O 1139/B NEW SANDIP LODGE, SHIVAJINAGAR PUNE - 411016 MAHARASHTRA 2. TRILOK BABURAO DESHPANDE - 3. AMEET TRILOK DESHPANDE - ...........Respondent(s) REVISION PETITION NO. 1566 OF 2015 (Against the Order dated 13/04/2015 in Appeal No. 895/2014 of the State Commission Maharastra) WITH
IA/3776/2015,IA/4077/2015,IA/4167/2015,IA/4722/2015 1. KUMAR BUILDER & 6 ORS. Through its Sole Proprietor, Mr. Lalitkumar Kesarimal Jain, Haviing its Office at: 10th Floor, Kumar Buisness Centre, CTS No. 29, Bund Garden Road, Pune Maharashtra 2. Prasad Jaiprakash Kasat Through its Duky Constituted Attorney Shri. Lalitkumar Kesarimal Jain, Residing at - 1006/61, Aradhana Bungalow, Navi Peth, Pune - 411030 Maharashtra 3. Kunal Shrikant Kasat Through its Duky Constituted Attorney Shri. Lalitkumar Kesarimal Jain, Residing at: A-22, Abhimanshree Society, Pashan Road, Pune - 411007 Maharashtra 4. Gaurav Vijay Kasat Through its Duky Constituted Attorney Shri. Lalitkumar Kesarimal Jain, Residing at: Flat No. 1, Atharv Apartment, 38/11, Prabhat Road, Lane No. 11, Erandawane, Pune Maharashtra 5. Kailash Yashwantaram Biyani Through its Duky Constituted Attorney Shri. Lalitkumar Kesarimal Jain, Residing at: 28, Biyani House, Yahodham Enclave, Film City Road, Goregaon (East), Mumbai Maharashtra 6. Asha Kailash Biyani Through its Duky Constituted Attorney Shri. Lalitkumar Kesarimal Jain, Residing at: 28, Biyani House, Yahodham Enclave, Film City Road, Goregaon (East), Mumbai Maharashtra 7. Pratap Tularam Ghogle Through its Duky Constituted Attorney Shri. Lalitkumar Kesarimal Jain, Residing at: Survey No. 110/1, Sutarvadi, Pashan, Pune Maharashtra ...........Petitioner(s) Versus 1. NARENDRA VASANT PARKHI Residing at: Flat No. A-9, Harileela Apartment, Balewadi Phata, Behind Signet Corner, Baner, Pune - 411045 Maharashtra ...........Respondent(s) REVISION PETITION NO. 1570 OF 2015 (Against the Order dated 13/04/2015 in Appeal No. 893/2014 of the State Commission Maharastra) WITH
IA/3776/2015,IA/4077/2015,IA/4167/2015,IA/4722/2015 1. KUMAR BUILDER & 6 ORS. Through its Sole Proprietor, Mr. Lalitkumar Kesarimal Jain, Haviing its Office at: 10th Floor, Kumar Buisness Centre, CTS No. 29, Bund Garden Road, Pune Maharashtra 2. Prasad Jaiprakash Kasat Through its Duky Constituted Attorney Shri. Lalitkumar Kesarimal Jain, Residing at - 1006/61, Aradhana Bungalow, Navi Peth, Pune - 411030 Maharashtra 3. Kunal Shrikant Kasat Through its Duky Constituted Attorney Shri. Lalitkumar Kesarimal Jain, Residing at: A-22, Abhimanshree Society, Pashan Road, Pune - 411007 Maharashtra 4. - - - - 5. Gaurav Vijay Kasat Through its Duky Constituted Attorney Shri. Lalitkumar Kesarimal Jain, Residing at: Flat No. 1, Atharv Apartment, 38/11, Prabhat Road, Lane No. 11, Erandawane, Pune Maharashtra 6. Kailash Yashwantaram Biyani Through its Duky Constituted Attorney Shri. Lalitkumar Kesarimal Jain, Residing at: 28, Biyani House, Yahodham Enclave, Film City Road, Goregaon (East), Mumbai Maharashtra 7. Asha Kailash Biyani Through its Duky Constituted Attorney Shri. Lalitkumar Kesarimal Jain, Residing at: 28, Biyani House, Yahodham Enclave, Film City Road, Goregaon (East), Mumbai Maharashtra 8. Pratap Tularam Ghogle Through its Duky Constituted Attorney Shri. Lalitkumar Kesarimal Jain, Residing at: Survey No. 110/1, Sutarvadi, Pashan, Pune Maharashtra ...........Petitioner(s) Versus 1. SHEKHAR SHANTARAM KASHALIKAR & ANR. Flat No, C-403, Kumar Atman, 4th Floor, Behind Hotel Mahabaleshwar, Baner Road, Pune Maharashtra 2. Monika Shekhar Kashalikar Residing at: Flat No. C-403, Kumar atman, 4th Floor, Behind Hotel Mahabaleshwar, Baner Road, Pune - 411007 Maharashtra ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE DR. B.C. GUPTA, MEMBER
For the Petitioner : For the Respondent :
Dated : 01 Feb 2016 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioners
Mr. Pawan Kumar Ray, Advocate
Mrs. Madhu Goel, A.R.
For the Respondents
Mr. Ajit Kulkarni, Advocate
O R D E R
PER DR. B.C. GUPTA, MEMBER These are three revision petitions, filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 13.04.2015, passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (hereinafter referred as 'the State Commission') in First Appeals A/14/893, A/14/894, and A/14/895, vide which, the said appeals filed by the present petitioners-builders were ordered to be dismissed and the order passed by the District Consumer Disputes Redressal Forum in consumer complaints no. 243/2011, 244/2011 and 245/2011, filed by the present respondents was upheld.
2. Briefly stated, the facts are that the complainants/respondents had booked flats with the petitioners/opposite parties (OPs) in a housing scheme floated by the petitioners, and signed the flat-booking agreements, laying down the terms and conditions of such transaction. It has been stated that the complainants paid the agreed amount of consideration for the purchase of the said flats to the petitioners/opposite parties. The possession of the flats was also handed over to the complainants at various intervals. However, after taking over the possession, the complainants are stated to have noticed deficiencies in construction and non-provision of certain facilities in the flats. The said lacunae, defects and shortcomings in the construction of the flats were not removed by the OPs despite correspondence with them. The complainants filed consumer complaints before the District Forum with prayer demanding damages, removal of defects etc. and for directions to the opposite parties to form and register a Co-operative Housing Society of the flat purchasers in the said scheme, and also to execute the conveyance deed regarding the land and building in favour of such Housing Society.
3. The complaints were resisted by the petitioners/opposite parties by filing written statements before the District Forum, in which they denied the allegations made by the complainants and stated that the Co-operative Housing Society or a Company etc. could be formed and the conveyance deed executed, only after the completion of the entire scheme. The petitioners took the plea that two buildings 'A' and 'C' had so far been constructed in the Project, but as per the lay-out plan, another building, to be called building 'B', was to be constructed in the space between the buildings 'A' and 'C'. The developer was entitled to make all reasonable changes in the plan and lay-out of the Project, in accordance with the terms and conditions of the agreement between the parties. The building plan for building 'B' had already been submitted to the Pune Municipal Corporation (PMC) for sanction, but the construction work could not be taken up as the plan had not been approved so far. The petitioners/opposite parties also mentioned that for buildings 'A' and 'C', they had already applied to the Pune Municipal Corporation (PMC) for issuing the necessary occupation/completion certificates, but the PMC had illegally and unjustifiably withheld the same. The opposite parties had already filed appeal before the competent authority against such action of the PMC. The opposite parties also mentioned that the complainants had already filed a Civil Appeal No. 2259/2011 in the Court of Civil Judge, Sr. Division, Pune, on the same issue against the opposite parties and hence, the consumer complaint was not maintainable.
4. The District Forum, vide their order dated 16.07.2014, partly allowed the complaints, giving, inter-alia, the following directions:-
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3. The opponents are directed to obtain completion certificate, form Co-operative Housing Society and execute conveyance deed in favour of the Society within six weeks from the date of passing of the order.
4. The opponents are further directed to provide all the facilities and amenities to the complainants which are shown in the agreement within six weeks from the date of passing of the order.
5. The opponents are also directed to pay an amount of Rs.2,00,000/- (Rs. two lac only) to the complainants towards compensation for deficiency in service and mental and physical and mental sufferings as well as cost of the litigation within six weeks from the date of passing of the order.
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5. Being aggrieved against the order passed by the District Forum, the petitioners/opposite parties challenged the same by way of appeals before the State Commission, but the said appeals were dismissed vide impugned order dated 13.04.2015 and in addition, litigation cost of Rs. 25,000/- was awarded in each of the appeals to the complainants. Hence, the present revision petitions.
6. During hearing before us, the learned counsel for the petitioners stated that they had already made application to the Pune Municipal Corporation (PMC) for the grant of occupation/completion certificate in respect of two buildings already completed i.e. 'A' and 'C'. The Co-operative Society of the flat buyers had also been formed. They were also ready to provide amenities, if something was found lacking, but the entire project could be completed only after the sanction of the building plan by the PMC. The learned counsel also stated that as per the orders passed by the Civil Court in Civil Suit No. 2259/2011, filed by the complainants, an interim injunction had been issued in favour of the complainants, restraining the petitioners from going ahead with the construction of a swimming pool on the space between the buildings 'A' and 'C. The petitioners were, therefore, feeling handicapped in completing the entire project. However, there was no deficiency of any kind on their part and hence, the present petitions deserved to be dismissed. On the other hand, the learned counsel for the complainants/respondents pointed out that the orders passed by the Consumer Fora below were in accordance with law and should be upheld.
7. An examination of the facts on record indicates that the District Forum, vide their order dated 16.07.2014, directed the petitioners to obtain completion certificate in respect of the flats in question, form Co-operative Housing Society and execute conveyance deed in favour of the Society and to provide all facilities and amenities to the complainants, as provided in the agreement, in a time-bound manner. The petitioners were also directed to pay a sum of Rs. 2 lakhs to the complainants towards compensation for deficiency in service, as well as the litigation cost. The said compensation of Rs. 2 lakhs has already been paid to the complainants as stated by the learned counsel for the petitioners during the course of hearing before us. It is observed, however, that in the impugned order, the State Commission have brought out clearly that in the agreements signed between the parties, there was mention of two buildings only and the same had been completed. The space between the two buildings was to be utilized for providing amenities to the buyers of flats in the said two buildings. However, the petitioners had changed the lay-out plan and proposed to construct a third building as well in the space between the two buildings. The State Commission, therefore, rightly observed that there was a deficiency of service on the part of the petitioners and the construction of the third building was an afterthought on the part of the petitioners. During proceedings in the revision petition as well, the petitioners have not been able to present any material to justify that the conclusion arrived at by the State Commission was not based on a correct appreciation of the facts in question. Even at the time of hearing before us, the petitioners have not been able to convince us that the construction of the third building was a part of the scheme from the very beginning.
8. In the injunction order dated 08.01.2013, passed by the Civil Court Pune in Civil Suit No. 2259/2011, the learned Civil Judge observed after going through the agreements between the parties and the lay out plan of the said scheme that the petitioners had mentioned only about the construction of two multi-storeyed buildings, and there was no disclosure about the third building. It was pleaded before the Civil Court that the buyers of the flats had agreed to purchase the same after taking into consideration the amenities to be provided by the developer. Had the developer not shown such facilities of open spaces and amenities, the complainants would not have purchased the said flats. Considering the plea taken by the complainants, the Civil Court found a prima-facie case in their favour and granted temporary injunction against the plaintiffs for causing construction of the swimming pool in the area earmarked as open space.
9. Based on the discussion above, we do not find any justification to interfere with the well-reasoned orders passed by the District Forum and the State Commission, in exercise of our revisional jurisdiction. Moreover, the petitioners have themselves admitted that they have already applied to the Pune Municipal Corporation (PMC) for the grant of completion/occupancy certificate for the buildings 'A' & 'C', and a Co-operative Society of flat-buyers had also been formed. The present revision petitions are, therefore, without any force and the same are dismissed and the orders passed by the Consumer Fora below are upheld. There shall be no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER