State Consumer Disputes Redressal Commission
Nagarwala Constructions vs Mrs.Sunita Ashok Verma on 14 March, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, CIRCUIT BENCH AT NAGPUR 5th Floor, Administrative Building No. 1 Civil Lines, Nagpur-440 001 First Appeal No. A/06/1154 (Arisen out of Order Dated 29/04/2006 in Case No.CC/05/117 of Addl. D.F. Nagpur) Nagarwala Constructions Partnership firm Office at Impression Plaza Congress Nagar, T- Point Dhantoli, Nagpur Through its Partners Shri Gautam Jayantilal Gundecha & Shri Inder Jayantilal Gundecha ...........Appellant(s) Versus 1. Mrs.Sunita Ashok Verma R/o Flat No.202, Impression Plaza Congress Nagar, T- Point Dhantoli, Nagpur ...........Respondent(s) (Deleted) 2. Maharashtra State Electricity Board Through its Executive Engineer Congress Nagar Division Nagpur. First Appeal No. A/09/562 (Arisen out of Order Dated 07/07/2009 in Exe.Appln. No.EA/09/22 of Addl. D.F. Nagpur) 1. Nagarwala Constructions Through its Partner Shri Gautam Jayantilal Gundecha 2. Inder Jayantilal Gundecha Both R/o Impression Plaza Congress Nagar, T- Point Dhantoli, Nagpur. ...........Appellant(s) Versus Mrs.Sunita Ashok Verma R/o Flat No.202, Impression Plaza Congress Nagar, T- Point Dhantoli, Nagpur ...........Respondent(s) BEFORE: Hon'ble Mr. B.A.Shaikh, Presiding Member Hon'ble Mrs. Jayshree, Yengal Member PRESENT: Adv. Mr S G Shukla ......for the Appellants Adv. Mr C B Pande ......for the Respondent ORDER
(Passed on 14.03.2014) Per Mr B A Shaikh, Honble Presiding Member
1. These two appeals are being disposed of by this common order as common question of law and facts is involved in them. They are preferred against the two separate orders dated 19.04.2006 & 07.07.2009 passed respectively in Consumer Complaint bearing No.CC/05/117 and Execution Application bearing No.EA/09/22, passed by Addl. District Forum, Nagpur.
2. The case of the complainant as set out in the complaint in brief is that opposite party (for short the O.P.) No.1 acquired a plot admeasuring 14565 sq.ft. described in the complaint in detail, in pursuance of the agreement of development dated 25.11.1995 entered into between it and Shri K S Trivedi, Shri S K Trivedi and Shri J K Trivedi, who are holding the said land under registered lease deed which was renewed on 01.02.1996. In pursuance of that agreement, the O.P.No.1 which is a partnership firm, has been authorized to prepare building plan, to get it sanctioned from Nagpur Municipal Council and to construct multistoried building on the said plot consisting of various self contained residential apartments and commercial units and to sell it to prospective purchasers. Therefore, the complainant who was interested in purchasing one of the said apartment, entered into agreement of sale with O.P.No.1 on 23.05.1996. The complainant has been allotted apartment No.202 on second floor of that building. The said apartment was to be sold to the complainant with 2.56% of undivided share and interest in the said plot. The total consideration was agreed at Rs.5.25 Lacs.
It was to be paid as per the schedule of the payment described in the agreement. The complainant paid the said entire amount of Rs.5.25 Lacs to the O.P.No.1 on the dates which are also given in the complaint. The O.P.No.1 had orally agreed to give vacant possession of the apartment within 18 months to the complainant. However, the complainant handed over the possession of the apartment to her in incomplete stage on 28.02.2001.The complainant expended Rs.50,000/- for carrying out remaining construction left incomplete by O.P.No.1. The O.P.No.1 under pressure obtained possession letter signed by the complainant. The complainant completed the said remaining work till 02.07.2002 and went to reside in it in the same month of July 2002. The complainant was required to pay rent of Rs.1.00 Lac from Nov.1997 to July 2002 due to delay in construction of apartment. Moreover, she also suffered damages of Rs.1.50 Lac. The O.P.No.1 has not installed hydraulic capsule lift in the said building. O.P.No.1 has also not executed the sale-deed of that apartment in favour of the complainant and hence, it is liable to bear additional cost of stamp duty now required for registration of the sale-deed. The O.P.No.1 has not provided domestic electricity connection, domestic water connection, overhead water tank, electric motor pump for fetching water, letter box room, electric meter room, electric connection with separate domestic electric meter, backup generator and parking facility. The complainant on her own expenses installed separate electric meter on temporary basis and she has also installed separate electric motor at her cost. The O.P.No.1 was recovering maintenance charges of Rs.400/- per month from her. It was paid till January, 2003. However, the O.P.No.1 disconnected the facilities and therefore she stopped payment of maintenance charges from January 2004. Therefore, she served legal notice to the O.P.No.1, but of no use. Therefore, she filed the complaint and claimed total amount of Rs.3.70 Lacs on various counts specified in the complaint, from the O.P.No.1. She also prayed that the direction may be given to the O.P.No.1 to execute the registered sale-deed of apartment No. 202, bearing the additional stamp duty expenses now enquired for registration of sale-deed. She also prayed that the direction may be given to the O.P.No.1 to provide the aforesaid facilities and to remove illegal construction of shop made in West-South corner of the building by it. She also claimed refund of the maintenance charges paid by her to the O.P.No.1.
3. The O.P.No.1 filed the Written Version and thereby resisted the complaint. It admitted that it has undertaken the development of the aforesaid plot owned by Shri Keshav Trivedi and others, that agreement to that effect has been executed on 25.11.1995 in between it & then, that accordingly building plan has been prepared and got sanctioned from concerned authorities. It further admitted that the complainant entered into an agreement with it to purchase flat No. 202 of that building on 23.05.1996 for total consideration of Rs.5.25 Lacs. It submitted that the said consideration was to be paid as per schedule of payment mentioned in the said agreement dated 23.05.1996. The complainant did not pay the said consideration as per said schedule of payment. There was delay in payment of the instalments of the said consideration. Therefore, as per Clause No.4 of that agreement the complainant is liable to pay interest @ 21% p.a. on the defaulted and delayed payments, amounting to Rs.1,13,767/-, which is not paid by her. An amount of Rs.5,000/- is also due from her towards consideration. Moreover, the complainant did not pay charges towards electricity transformer and water connection despite of handing over of possession of flat to her on 28.02.2001. It is denied that the possession was given leaving incomplete construction. The complainant took the possession after she was fully satisfied with the construction. It is denied that under pressure the complainants signature was obtained on possession letter. The construction has been made as per specifications of the agreement dated 23.05.1996. It was never agreed by the O.P.No.1 it will provide lift facility. But the O.P.No.1 constructed the lift out of its own pocket expenses, which is not shared by any of the occupant of the building. It has provided adequate water supply, constructed overhead and underground storage tank with electric motor and water is lifted at its own cost, which is not shared by the complainant. Electric meter room is also provided at the basement of the building. The complainant is not ready to share the expenses required for installation of transformer or supply of electricity, though it is required as per rules of MSEB. It is, therefore, not responsible for non-installation of electric meter. It is denied that the shops in the building are constructed contrary to the building plan.
The complainant is in arrears of Rs.14,800/- towards general maintenance charges and Rs.3,000/- towards water charges. Moreover, the complainant is required to share charges for generator in the building but she has refused to pay her share. It is also submitted that the complaint is barred by limitation and not maintainable for non-joinder of necessary party. It is, therefore, prayed by O.P.No.1 that the complaint may be dismissed.
4. The O.P.No.2 MSEB, which was subsequently impleaded in the complaint also filed its Written Version and resisted the complaint. It submitted that the allegations, which are made against the O.P.No.1, are not within its knowledge. It submitted that the sponsorer / builder is required to complete requisite formalities. It is submitted that no such requisite formalities were completed by O.P.No.1 to provide electric service line to the building and hence it is not liable for the alleged inconveniences caused to the complainant. It has given service to the complainant by installing temporary meter in her premises and supply is continued as per rule. It, therefore, submitted that complaint is not maintainable as against it and hence it may be dismissed.
5. The Forum below after hearing advocates of both the parties and considering evidence brought on record, came to the conclusion that complaint is not barred by limitation and the complainant is a consumer and the O.P.No.1 is a service provider. It also found that no dates are mentioned in the agreement to sell for payment of the instalments of consideration and only stages of construction and amounts to be paid at the time of said stages are mentioned and therefore the O.P.No.1 cannot make a counter claim of Rs.1,13,767/- towards delay in payment of the consideration of the flat. The Forum also found that the complainant incurred expenses of Rs.50,000/- for completing the work left by the O.P.No.1 and therefore she is entitled to receive Rs.50,000/- from O.P.No.1. It is also found by the Forum below that the complainant paid total consideration of Rs.5.25 Lacs to the O.P.No.1 and last instalment of that amount was paid by her on 15.05.2000, but possession of the flat was given thereafter nine months i.e. on 28.02.2001 and therefore she is entitled to rent of Rs.25,000/- for nine months from the O.P.No.1. The Forum below had also appointed commissioner for inspection of the building in which the flat No.202 is constructed and for report. The said commission found that there is no parking place facility provided to the flat owners, there are no facilities and amenities namely backup generator, hydraulic capsule lift, permanent MSEB meter connection, overhead tank connection, letter box room and electric meter room and that ramps leading to the basement are closed. It also held that the complainant is also entitled to get sale-deed of her flat from the O.P.No.1. Therefore, the Forum below directed the O.P.No.1 to execute the sale-deed of that flat in favour of the complainant and the O.P.No.1 shall bear the additional stamp duty and registration charges required after the date 18.02.2001 for registration of sale-deed. The Forum below also directed the O.P.No.1 to pay Rs.50,000/- to the complainant towards expenditure incurred by her to complete the work of flat No.202 left by O.P.No.1 and also to pay her Rs.25,000/- towards rent on account of delay in delivery of possession of the apartment and further direction is given that O.P.No.1 shall compete the work of hydraulic capsule lift and, to install backup generator, letter box room and electric meter room and shall provide permanent electric connection alongwith transformer as well as domestic water connection and shall also provide overhead tank connection to the apartment for the complainant, as per report of the Commissioner by making recovery of proportionate cost from the complainant, after adjusting Rs.10,000/- paid for temporary electric connection and Rs.5,000/- extra paid by the complainant and to clear both the ramps. It is further directed that the O.P.NO.1 shall pay compensation of Rs.25,000/- to the complainant per harassment and for payment of higher electricity tariff on temporary connection. It is further directed that the O.P.No.1 shall pay to the complainant Rs.2,000/- towards cost of litigation. O.P.No.2 has been exonerated from the liability.
6. Feeling aggrieved by the said order, the O.P.No.1 (hereinafter referred to as an appellant) preferred appeal No.A/06/1154.
During pendency of the said appeal the original complainant filed an application bearing Execution application No.EA/09/22 before the same Addl. District Forum, Nagpur for execution of the aforesaid order passed in consumer complaint bearing No. CC/05/117. The appellant herein appeared in that execution proceeding and filed its reply and raised objections namely, the owner of the plot died on 08.12.2005 and therefore, sale-deed cannot be executed in favour of complainant, that the period of lease under which the said plot was acquired by Government has expired on 31.03.2008 and the said lease is also not renewed and that unless No Objection Certificate is obtained from Revenue Department, no sale-deed can be executed.
7. The Forum below heard both the parties on the said objections in Execution Application No. EA/09/22 and found that in this appeal bearing No.A/06/1154 stay was not granted to the part of the order pertaining to execution of sale-deed and therefore sale-deed can be executed. It also found that Shri Keshavji Trivedi, one of the owners of the plots, though died on 08.12.2005 i.e. before the final order was passed in the complaint on 28.06.2006, no Power of Attorney was obtained by the O.P.No.1 from the Legal Heirs of that owner and no other steps in this regard were taken by it. It is also found by the Forum below in that the execution proceeding that final order was passed on 29.04.2006 in the complaint, but the period of the lease was expired on 31.03.2008 and that the O.P.No.1 did not take any care before expiry period of that lease and that the O.P.No.1 has also not taken any step for obtaining No Objection Certificate from the concerned Revenue Department. Thus, in this view of the matter, the Forum below found no substance in aforesaid objections raised by original O.P.No.1 / appellant herein and rejected the said objections and directed the O.P.No.1 / appellant to complete all the legal formalities within six months and to execute sale-deed in favour of the complainant. Feeling aggrieved by that order dated 07.07.2009 passed in EA/09/22 by Addl. District Forum, Nagpur, the O.P.No.1 / appellant has preferred second appeal bearing No.A/09/562 before this Commission, which is being decided with aforesaid connected first appeal bearing No. A/06/1154.
8. We have heard learned advocates of the appellant / original O.P.No.1 and the respondent herein / original complainant in both these appeals. We have also perused the Written Notes of Arguments & other documents filed by them. The respondent No.2 MSEB, has been deleted from array of respondents in appeal No. A/06/1154 as per order dated 28.03.2012 passed by this Commission after hearing both parties.
9. The learned advocate of the appellant made common submission in both these appeals. His argument is summarized point wise as follows.
i.
The complainant did not implead the owners of the plot as opposite parties in the complaint & hence, no effective and valid sale-deed can be executed in favour of respondent.
ii.
The period of the lease of the plot expired on 31.03.2008 and hence, on this ground also the sale-deed cannot be executed.
iii.
Arbitrator appointed by the appellant to resolve the dispute, passed an award on 22.07.2012 directing the respondent to handover vacant possession of the flat to the appellant, which is binding on the respondent as no appeal is preferred against the same by her.
iv.
The complaint has been filed after a period of three years from handing over possession of the flat to the respondent and therefore, the complaint is barred by limitation for recovery of Rs.50,000/-.
v.
The Commissioner appointed by the Forum inspected the flat and the building in the absence of the appellant and he was also not examined by the respondent and hence his report cannot be relied upon.
vi.
The contention of the respondent that she paid rent of the premises is not supported by proper evidence.
vii.
There is no reliable evidence to prove that the respondent incurred expenses of Rs.50,000/- for completing the work in flat No.202 not done by the appellant.
viii.
The respondent has not paid any amount for installation of transformer and electric meter, the facility of overhead tank and underground sump is already provided to the building. The 4 mtr. ramp is also made available to the respondent. Parking place is also made available to the respondent. The respondent is not paying maintenance charges and bills, which are exclusive of cost of the flat. The generator and other facilities are also provided to the occupant of the building.
ix.
The additional stamp duty charges required after 18.02.2001 cannot be born by the appellant as delay has been occurred in execution of sale-deed due to not making compliance of terms & conditions of the agreement by the respondent.
x.
The lift is not installed as the complainant and other occupants of the building have not paid proportionate amount required for its installation.
xi.
The recovery of Rs.50,000/- from the appellant towards completion of alleged remaining work is also illegal as it is not proved by cogent evidence that complainant / respondent herein expended that amount for the said purpose. Apart from this, she obtained possession of the flat after due inspection and satisfaction of complete work.
10. Thus, he contended that these material aspects of the case were not properly considered by the Forum below and therefore it erred in partly allowing complaint and passing impugned order in it and it erred in rejecting the objections raised in execution proceeding and hence both impugned orders may be set aside. He relied on observations made in the following cases.
i.
Sohan Lal (dead) By L.Rs. Vs. Union of India & Anr. - AIR 1991 Supreme Court - 955.
It was a case for specific performance of contract. In that case plaintiff failed to prove execution of contract of sale in between him and Government or allottee. Hence, it is held that no decree for specific performance of contract can be passed.
ii.
Pandurang Atmanand Camotin alias Pramod Atmanand Kamat Vs. Sinivas Builders, Panjim-Goa & Anr. - 2009(5) Mh.LJ 437.
It is held that in suit for specific performance of contract co-purchaser is a necessary party and in her absence the suit is bad in law.
iii.
Jagtu Vs. Sraj Mal & Ors. 2011 (1) Civil Court Cases 0141 (SC).
It is held that in the absence of owner of the land in a Civil Suit filed for declaration, no such declaration can be granted.
iv.
Sadguru Land Finance Vs. Santosh Garg - 2008 (IV) CPJ 1 ( Delhi S.C.D.R.C) It is held that as per agreement allottee has to make payment of external development charges, registration charges and maintenance charges and possession was to be handed over on payment of entire dues. The complainant was liable to pay charges in terms of agreement and therefore direction given to him to execute sale-deed without maintenance and registration charges has been set aside.
v.
Mughal Maskan Aptts. Owners Association Vs. Mughal Constructions - I(2008) CPJ 289 (NC) In that case there was tripartite agreement between the parties. Purchaser failed to comply with the direction and to contribute the amount despite intimation. Hence, no deficiency in service was proved in that case.
vi.
Ashok Leyland Finance Ltd & Anr. Vs. Ramchandra s/o Madari Katkamwar - 2003 (1) Mh.LJ 536 It is held that in view of the mandatory provisions of Section 8 of Arbitration and Conciliation Act, it is obligatory on the part of the trial Court to refer the parties in suit for arbitration.
vii.
Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd. -(1996) 4 Supreme Court Cases 704.
It is held that in case of acute dispute of fact, the Commission should not go behind the terms of the contract and should instead refer the parties to Civil Court.
viii.
Bangalore Development Authority Vs. Syndicate Bank - (2007) 6 Supreme Court Cases 711.
It is held that if an allottee does not pay all the instalments, he cannot obviously expect completion of construction and any delay that the developer may have to explain, can only be computed from after the date on which final instalment has been made.
ix.
A.B.K. Dubhashi & Ors. Vs. Petit Towers Co-operative Housing Society Ltd., Mumbai & Ors. 2011 (2) Mh.LJ 57 It is held that where subject matter of the suit is covered by arbitration, it is necessary to refer the matter to the arbitrator.
x.
N Srinivasa Vs. Kuttukaran Machine Tools Ltd. - 2009(6) Mh.LJ 331 It is held that even if an agreement ceases to exist, the arbitration clause in the agreement remains in force and any dispute pertaining to the agreement ought to be resolved according to the conditions mentioned in the arbitration clause.
xi.
Escorts Ltd. Vs. Subhash Manakchand Zambad & Anr. 2011 (6) Mh.LJ 18.
It is held that if agreement contains clause for reference of dispute to arbitration, it is mandatory to the Civil Court to refer the same to the arbitrator.
11. On the other hand the learned advocate of the respondent herein supported the impugned order and submitted that in view of the well settled law; the impugned order passed in the complaint can be enforced as it was passed prior to passing of arbitration award. He further submitted that the appellant never issued any notice to the respondent to demand any such outstanding amount and now it cannot raise any such plea that some amount was due from the respondent. He has invited our attention towards the Commissioners report and other documents filed on record and submitted that the Forum below has properly considered the same and passed correct order. He relied upon observations made in the following cases.
i. The Manager Mapsko Builders Pvt Ltd & Anr. Vs. Mrs Sunil Dahiya W/o Anup Singh Dahiya in RP No.3479 of 2011 decided on 05.08.2013 by Honble National Commission. In that case the builder after receiving substantial amount of money of the flat enjoyed the same but no possession of the flat was given by him to the respondent.
It is held that no leniency should be shown to such type of litigant who in order to cover up their own fault and negligence goes on filing meritless petitions in different Foras.
ii.
M/s Charan Homes Pvt Ltd. & Anr. Vs. Shri Jai Prakash Rai in FA No. 522 of 2007 decided on 22.11.2012 by Honble National Commission. It is held that when possession of the property is not delivered within stipulated period, the delay so caused is denial of service. Such disputes or claims are not in respect of immovable property as argued but deficiency in rendering of service of particular standard, quality or grade.
iii.
M/s Milroc Development Co.
& Ors. Vs. Mrs Antonieta Ribeiro De Souza in RP No.2359 of 2012 decided on o1.11.2012 by Honble National Commission. In that case the complainant produced report of architect which supported the case of the complainant. As in that case there was adequate evidence to support the case of complainant, the revision petition filed by the original opposite party came to be dismissed.
iv.
M/s A.G. Developers Vs. Shri Amar Kumar Chabra & Anr.- in RP No. 1510 / 2011 decided on 12.10.2012 by Honble National Commission. In that case also the builder had received about 50% of amount of the flat and he was also enjoying its possession. It is held that such type of unscrupulous act on the part of the builder should be dealt with heavy hands.
v.
H M Constructions Vs. The Shri Kishan Vithal Rao Kulkarni & Anr. in RP No.358 of 2010 decided on 14.09.2012 by Honble National Commission. It is held that those litigants who deliberately and willfully defy the orders of the Consumer Fora in spite of having given specific undertaking back out and flout orders with impunity, should not be spared unscathed and must be dealt with heavy hand.
vi.
M/s Sterling Estates & Properties Ltd Vs. G Keshav Raj in RP No.1686 of 2012 decided on 06.09.2013 by Honble National Commission. In that case the District Forum had allowed the complaint directing the opposite party to pay Rs.10,464/- towards rental compensation, Rs.1.00 Lac towards rectification of defects and Rs.50,000/- towards compensation for mental agony and Rs.5,000/- towards cost. The Honble State Commission in appeal set aside the said order and directed the opposite party to pay Rs.10,464/- towards rental compensation, Rs.40,000/- towards rectification of defects and Rs.10,000/- towards compensation for mental agony, Rs.2,500/- towards cost. The Honble National Commission maintained the said order of State Commission and dismissed the revision petition filed against that order.
vii.
Vinod Kumar Thareja Vs. Alpha Construction & Ors. in CA No.1493 of 2011 decided on 08.02.2011 by Honble Supreme Court. In that case the respondent was aggrieved by the order passed in favour of original complainant. It is held that the said aggrieved respondent can only raise issue whether his liability should be upheld, modified or rejected. Question whether anyone else should be made liable alongwith respondent in complaint, does not arise. It is also held that as the complainants neither impleaded nor sought any relief against the appellant, the State Commission or National Commission cannot make appellant liable with first respondent.
viii.
Narne Construction Pvt Ltd. etc. Vs. Union of India & Ors., in CA No. 4432 to 4450 of 2012 decided on 10.05.2012 by Honble Supreme Court. In that case clear cut assurance was given to the purchasers as to nature and extent of development that would be carried out by appellant company as part of package under which sale of fully developed plots with assured facilities was to be made in favour of purchasers for valuable consideration. It is held that the appellant had indeed undertaken to provide a service and any deficiency or defect in such service would make it accountable before competent Consumer Forum at the instance of consumers like respondents.
12. The facts which are not disputed in brief are that the appellant acquired the plot No.31 of City Survey No.477 of Dhantoli, Nagpur as per agreement of development dated 25.11.1995 executed in between the appellant on one side and three other persons namely Shri K S Trivedi, Shri S K Trivedi and Shri J K Trivedi, who are holding the said plot under registered lease deed which was. As per that agreement, the appellant has been duly authorised to construct multi storeyed building on the said plot as per duly sanctioned map and then to sell its apartment to prospective purchasers on receiving due consideration from them. The respondent herein namely Sunita Ashok Verma entered into an agreement of sale relating apartment No.202 of that building with the appellant on 23.05.1996. She agreed to pay total consideration of Rs.5,25,000/- of that apartment to the appellant as per the schedule of payment described in the said agreement dtd.23.05.1996. The appellant has also made construction of the multi storied building and handed over the possession of flat No.202 of that building to the complainant on 28.02.2001. However, appellant has not executed sale-deed of that flat in favour of the respondent herein.
13. We find that the first submission made by the learned advocate of the appellant about non-maintainability of the complaint due to non-joinder of aforesaid three lease holders of the plot, we find that since the said lease holders already authorised the appellant as per agreement dated 25.11.1995 to make construction of multi storied building on the plot and to sell its apartments to prospective purchasers, the said lease holders are not necessary party to the complaint. Moreover, in consequence of death of Shri K S Trivedi, i.e. one of the said lease holders, the rights already conferred on respondent herein / original complainant by them as per agreement dated 25.11.1995 are not defeated due to any such subsequent development as alleged by appellant. Therefore, we find no substance in the said contentions raised by the learned advocate of the appellant.
14. The next submission made by the learned advocate of the appellant is about expiry of the period of lease on 30.03.2008. We find that as the respondent herein / original complainant entered into an agreement to sell of flat No.202 with the appellant on 23.05.1996 i.e. prior to 31.03.2008 and as she already received possession of that flat prior to 31.03.2008 i.e. on 28.02.2001, the expiry of period of lease, if any, will not take away the rights of the respondent herein to obtain the sale-deed of the said flat, particularly when she paid total amount of its consideration to the appellant on behalf of the aforesaid lease holders of the plot. Therefore, there is no merit in the said second contention raised by the learned advocate of the appellant.
15. The next submission made by the learned advocate of the appellant is that the arbitrator appointed by the appellant to resolve the dispute has passed an award on 22.07.2012 and directed the respondent herein to give vacant possession of the flat the appellant. We find that the said award is passed by the arbitrator after the decision of the original complaint which was given by the Forum below on 29.04.2006. Moreover, the award was also passed even after the impugned order was passed in execution application No.EA/09/22 on 07.07.2009.
It is well settled law that remedy provided under the Consumer Protection Act is an additional remedy and the arbitration clause mentioned in the agreement does not oust the jurisdiction of the Consumer Fora under Consumer Protection Act, 1986.
Therefore, we find that the passing of the award by the arbitrator on 22.07.2012 after passing of both the impugned orders will not render both the said impugned orders as ineffective or illegal. Hence, we do not agree with the aforesaid submission made by the learned advocate of the appellant in this regard.
16. The next submission made by the learned advocate of the appellant is about bar of limitation for recovery of Rs.50,000/- towards expenses incurred by the respondent for doing the work left by the appellant. However, we find that the main relief sought for by the respondent is execution of the sale-deed and hence cause of action is continuous since the respondent has been already put in possession of the flat which she alleged to have been handed over to her leaving some work incomplete. Therefore, we find that the part of relief sought about recovery of Rs.50,000/- cannot be said to be barred by limitation.
17. The next submission made by the learned advocate of the appellant is about non-reliability of the Commissioners report who inspected the flat and the building constructed by the appellant. The said commissioner was appointed by the Forum below after hearing both the parties. His report cannot be disbelieved on any such ground that he inspected the said premises in absence of the appellant. We find that there is no reason to disbelieve the said report of the Commissioner which is very specific and which gives clear picture of existing condition of the building and the flat No.202 of that building.
18. We also find that the Forum below has rightly relied upon the report of the said commissioner to come to the conclusion that the requisite facilities and amenities described in the said report were not provided by the appellant to the occupants of that building including the respondent herein.
19. The next submission made by the learned advocate of the appellant is about recovery of the rent of Rs.25,000/- of the flat from the respondent herein from 01.06.2000 to 28.02.2001 i.e. for delay of nine months from payment of last instalment by respondent to the appellant till delivery of possession of the flat on 28.02.2001 to her. However, we find that in agreement to sell of that flat dated 23.05.1996 there is no time limit to handover the possession of the flat to the respondent herein. On the contrary it shows that possession of the flat will be given to the respondent at the time of registration of sale-deed or after full & final settlement of payments. There is a term in Clause No.9-A of that agreement that time limit of handing over of possession is subject to payment of instalment, interest, taxes and other payments, etc. and availability of building material, labour etc. and will not be disputed in any Court and that the appellant can give possession of the flat on as is where is basis on its discretion. In view of the said term & condition of the agreement, we find that the respondent is not entitled to any such amount of Rs.25,000/- towards rent paid by her for residing in rented premises. Thus, we find that the Forum below has erred in giving direction to the appellant to pay the said rent to the respondent and hence, said direction needs to be set aside.
20. As regards next submission made by the learned advocate of the appellant about the fact that the appellant already provided necessary facilities to the respondent, we find that the Forum below relying on the inspection report of the Commissioner and other evidence brought on record, has rightly come to the conclusion that the appellant has not provided the facilities namely hydraulic capsule lift, backup generator, letter box, electric connection alongwith transformer, domestic water connection and overhead tank. Therefore, the direction given to the appellant under impugned order to complete the said work is just & proper. Moreover, the Forum below has also made it clear that the complainant is liable to pay proportionate cost of the said facilities and the amount of Rs.10,000/- paid by him for temporary electric connection and Rs.5,000/- extra paid by him be also adjusted towards his proportionate liability. The Forum also rightly directed the appellant to clear both the ramps.
Hence, there is no force in the said submission made by learned advocate of the appellant.
21. The next submission made by the learned advocate of the appellant is about no liability of the appellant to pay additional stamp duty and registration charges required after 18.02.2001 for execution of the sale-deed. We find that Clause No.8 of agreement to sell shows a term that sale-deed would be executed only after receipt of full & final agreed consideration towards the cost of apartment including electricity and water charges and all legal formalities and on completion of settlement of accounts. In the instant case the Forum below has given direction under impugned order to the respondent herein to pay proportionate cost as mentioned in operative order to the appellant. It is not challenged by the respondent herein.
Therefore, we find that in such a case when direction is given to the appellant to execute sale-deed of the flat in favour of the respondent in above terms and view of terms of agreement, the appellant cannot be made responsible to bear additional charges for stamp duty and registration charges required after 18.02.2001 i.e. after the date of delivery of the possession of the flat to the respondent. As per agreement to sell it is the liability of respondent herein to bear the said charges. Hence, we hold that the direction given to the appellant to bear the part of the said charges after 18.02.2001 needs to be set aside.
22. The next submission made by the learned advocate of the appellant is about the facility of lift made available to the respondent herein. However, we find that the commission on due inspection did not find any such facility provided to the building. The appellant in Written Version also has shown his readiness to provide lift facility to that building. Hence, direction given in the impugned order to the appellant to provide hydraulic capsule lift to the building cannot be said to be unjustified.
23. The last submission made by the learned advocate of the appellant is about non-liability of appellant to pay Rs.50,000/- the respondent claimed by her towards doing the work which is alleged to have been left by the appellant. Admittedly, she signed the possession letter on 28.02.2001 while taking possession of the flat No.202 from the appellant. The said possession letter shows that at the time of taking possession of the flat on 28.02.2001 it was duly inspected by the respondent herein and she was satisfied that it was complete in all respect. As per Clause No. 9-A of the agreement to sell dtd.25.11.1995 it was agreed that the appellant can give possession of the flat on as is where is basis on its discretion. The respondent accepted the possession of the flat without any protest about any such incomplete work. Thus, under all these facts & circumstances we find that the respondent is not entitled to recover Rs.50,000/- from the appellant towards the alleged expenses incurred by her for doing any such construction left incomplete by the appellant in her flat.
24. We, thus, hold that the decisions relied upon by the learned advocate of the appellant are of no assistance to the appellant so far as the legality of part of the impugned order relating to execution of sale-deed in favour of the respondent herein, to complete the work mentioned in the impugned order and to pay compensation of Rs.20,000/- and cost of Rs.2,000/- to the respondent is concerned, as the facts & circumstances as discussed above are totally different from those of said cases.
However, we find that for the foregoing reasons that the rest of the part of impugned order passed in original complaint for payment of additional stamp duty and registration charges after 19.02.2001, payment of Rs.50,000/- to the respondent towards expenditure to complete the work and payment of Rs.25,000/- to the respondent cannot sustained under law and hence, that needs to be set aside.
Moreover, the impugned order passed in execution application No.EA/09/22 by which the objections raised by the appellant have been rejected is legal and hence it needs to be confirmed.
Hence, following order is passed.
ORDER i.
The appeal bearing No. A/06/1154 is partly allowed.
ii.
The direction given in Clause Nos.1, 2 & 3 of the impugned order passed in original complaint bearing No.CC/05/117 as regards payment of additional stamp duty and registration charges by the appellant required after the date 18.02.2001, payment of Rs.50,000/- to the respondent herein towards expenses incurred by her to complete the construction work and to pay to her Rs.25,000/- towards rent on the ground of delay in deliver of possession of apartment to her is hereby set aside.
iii.
The rest of the direction given under Clause No.1 of impugned order in original complaint to the appellant herein to execute sale-deed of flat No.202 in favour of the respondent herein and the direction given under Clause No.4 of that impugned order to complete work described in the said clause on proportionate recovery from the respondent and adjustment of Rs.10,000/- & Rs.5,000/- paid by the respondent and direction given under Clause No.5 to the appellant to pay compensation of Rs.20,000/- to the respondent herein and further direction given under Clause No.6 to the appellant to pay cost of Rs.2,000/- to the respondent is hereby maintained.
iv.
The appeal bearing No. A/09/562 filed against impugned order passed in execution application bearing No. EA/09/22 is dismissed.
v.
No order as to cost in both appeals.
vi.
Copy of this order be supplied to the parties free of cost.
[ B. A. SHEIKH] PRESIDING MEMBER [ SMT.JAYSHREE YENGAL] MEMBER sj