State Consumer Disputes Redressal Commission
Mr.Balram S/O Atul Chandra Champati vs Mr. Subhash S/O Motiram Kasulkar, on 22 August, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, CIRCUIT BENCH, NAGPUR 5th floor, Administrative Building, Civil Lines, Nagpur-01 First Appeal No.A/12/47 (Arisen out of Order Dated null in Case No. of District ) 1. Mr.Balram S/o Atul Chandra Champati 2. Mrs.Soma w/o Balram Champati Both R/o 212, Second floor, Aishwarya Residency, Ward No.74, MHADA Colony, Rajendranagar, Hingna Road, Nagpur 16. Vs. Mr. Subhash S/o Motiram Kasulkar, M/s L.K.Constructions, R/o Shubham I, Pl.No.173, Bhausaheb Survey Nagar, Bhamti, Nagpur. BEFORE: Hon'ble Mr.B.A.SHAIKH PRESIDING MEMBER HON'BLE SMT.JAYSHREE YENGAL MEMBER PRESENT: Adv.Mushahid Ali ......for the Appellant None ......for the Respondent ORDER
(DELIVERED ON 22/08/2013) PER SMT.JAYASHREE YENGAL, HONBLE MEMBER
1. The challenge in this appeal is the order dated 31/10/2011 passed by the District Consumer Forum, Nagpur disposing of the Consumer Complainant bearing No.152/2010.
2. The Appellants to be referred as Complainants and Respondents M/s L.K.Constructions through its Proprietor Subhash Motiramji Kasulkar to be referred as Opponent for the sake of brevity.
3. Brief facts giving rise to this appeal are that, the complainants had booked an apartment by entering into an agreement for purchase of an apartment bearing No.212 admeasuring 56.671 sq.mts.
with an undivided share of 2.506 % for a consideration of Rs.11 lacs in the housing scheme floated by the Opponents under the name and style Aishwarya Residency. The complainant paid Rs.40000/- on 7/4/2009 as booking amount towards purchase of the said flat and the Opponent also issued receipt regarding the same. The Opponent further demanded Rs.60000/- so that a registered Agreement to Salecould be executed. The complainants, therefore, also paid an amount of Rs.60000/- on 4/5/2009 by cheque bearing No.97311. The Opponent inspite of receiving Rs.1 lac from the complainants avoided to execute the Agreement to Sale. However, on persistent insistance of the complainants, the Opponent agreed to execute the Agreement to Saleprovided the complainant paid Rs.2,50,000/- more. Since the complainants had already paid Rs.1 lac, they had no other option than to pay as per the demand of the OP. Therefore, on 14/7/2009, the complainants paid Rs.2,50,000/- to the Opponent. However, the OP did not pass a proper receipt but just issued a temporary receipt (Kacchi Pavati) and when the complainants demanded a proper receipt, in respect of payment of Rs.2,50,000/- the OP threatened that he will not execute the Agreement to Sale, if such demand is insisted. The Opponent executed an Agreement to Saleon 14/7/2009 in which not only he deliberately avoided to mention the payment of aforesaid amount of Rs.2,50,000/-, but also retained the rights over the common area like the terrace etc. and FSI, if enhanced in future. The Opponents formed an Association of Apartment Owners. However, the Opponent retained the right to receive rent from the cellular phone & DTH Company who were given part of the terrace on lease.
4. Alleging the Agreement to Sale and Sale Deed being void, the complainants filed a consumer complaint seeking refund of the excess amount which has been recovered from the complainants, and right in the FSI to the extent of complainants share, refund of Rs.10000/- recovered by the Opponents as Association fund and further direction to the Opponents to make necessary changes in the registered Sale-Deed regarding rights over FSI and common areas like terrace etc.
5. The Opponent resisted the complaint by filing its written version and admitted that the apartment was agreed to be purchased for consideration of Rs.11 lac and the possession of the same was handed over to the complainants on 15/7/2010, much prior to the total consideration received from the complainants, and the agreement of sale was executed on 14/7/2009 and the Sale Deed was registered on 1/10/2010. The Opponents denied all the adverse allegations and has submitted that the excess amount received was towards the extra construction work done and interest to be imposed for delayed payment as per the conditions mentioned in the agreement to sale. The Opponents specifically denied the receipt of Rs.2,50,000/- in excess of the agreed consideration and the Opponents also denied issuance of any temporary receipt regarding the same as alleged. The Opponents further submitted that the construction of the apartments was according to the sanctioned building plan and there was no deficiency on the part of the Opponents and, therefore, the complaint deserves to be dismissed being frievolous with costs.
6. The Forum, disposed of the complaint by holding that the sale-deed executed between the parties being a registered document and is signed by both the parties, the conditions mentioned therein are presumed to be agreed by both the parties and therefore, are binding on both the parties. In case a sale-deed is alleged to be not proper or is void, or one of the party is not in agreement to the conditions mentioned in the sale-deed, then it has to be challenged before the competent court challenging the validity of the contract under the Indian Contract Act like the challenging party was made to enter into the contract without his free consent etc. And, therefore, the Forum, under the Consumer Protection Act,1986, has no jurisdiction to decide the issue of validity of a sale-deed. Similarly, the Forum has no jurisdiction to alter the terms and conditions mentioned in the sale-deed. The Forum, has further opined that the rent received from the cellular phone & DTH Company towards lease of part of the terrace, is a right of the Association of Apartment Owners and, therefore, a consumer complaint should have been filed by the Association for its redressal. Therefore, on this count also, the consumer complaint was disposed of, being not tenable.
7. Feeling aggrieved by the said order of disposing off the Consumer Complaint, the Complainants have filed this appeal.
8. We heard the counsel for the appellant and perused the copy of the complaint, written version, copy of receipts and other documents filed on record. None for the Respondent was present though served, therefore, this appeal was proceeded exparte.
9. It is not disputed that the Agreement to Sale was executed on 14/7/2009 and accordingly the Sale-deed was also executed by a registered document for a consideration of Rs.11 lacs. In our opinion, the only issue that remains for our consideration is whether the Opponents have recovered excess amount of Rs.2,50,000/- from the complainants towards which the Opponents have issued a temporary receipt. We have perused the document/receipt dated 14/7/2009 passed by the Opponent Subhash Kasulkar for Rs.2,50,000/-.
There are two more such alleged temporary receipts passed by the Opponents for a sum of Rs.24,000/- dated 29/7/2010 towards extra works and for Rs.40000/- dated 2/8/2010 towards penalty and interest, which are not disputed by the Opponents. All these three receipts are identical and, therefore, it can be safely inferred that the Opponents were in the practice of issuing such temporary receipts, and except a mere denial, the Opponents have failed to bring on record that the complainants have procured such receipt illegally, or fraudulently. Therefore, in our opinion, the Complainants as per said receipt have made an excess payment of Rs.2,50,000/- to which they are entitled for the refund.
The Forum has failed to consider this aspect, which is a glaring irregularity in the order passed by the Forum. However, the Forum has rightly held that the relief which is sought by the complainants was of the nature of altering the conditions of the Sale-deed, can not be granted. Therefore, we find no glaring infirmity or illegality in not granted that relief by the Forum below. However, in view of the above observations, the appeal deserves to be partly allowed to the extent of refund of the excess payment recovered by the Opponents. In the result, we pass the following order ORDER Appeal is partly allowed.
The complaint is partly allowed as under..
The order dated 30/10/2011 passed in CC No.152/2010 is partly modified and the Respondents/Opponents are directed to refund an amount of Rs.2,50,000/- to the Appellant/complainants with interest @ 6% from the date of payment i.e. 14/7/2009 till its realization.
Rest of the order stands confirmed.
In the facts and circumstances of the case, no orders as to costs.
Dated 22/08/2013 [ Hon'ble Mr.B.A.SHAIKH] PRESIDING MEMBER [ HON'BLE SMT.JAYSHREE YENGAL] MEMBER