State Consumer Disputes Redressal Commission
Smt. Saraswati Singh, Wife Of vs Shri Girdharlal Mohanlal Gangani, on 26 February, 2009
THE
STATE CONSUMER DISPUTES REDRESSAL
COMMMISION,
PANAJI
- GOA.
Present:
Smt.
Sandra Vaz e Correia. . . Presiding Member.
Smt.
Caroline Collasso . . . Member.
Complaint
No. 3 of 2004
Smt. Saraswati Singh, wife of
Shri Rajeshwar Singh, major of
age,
resident of 4 C, Shanti Hari
Awaran,
Near Gopal Maidan, P.S.&.P.O.
Bistpur,
Town Jamshedpur, District East
Singhbhum.
Jharkanand State, through his
duly constituted
Attorney Shri Hari Moreshwar
Athalye,
major of age, resident of
Kalptaru Sadan,
Borkar Road, Vidyanagar,
District
Porvorim, State of Goa.
... Complainant
v/s
Shri Girdharlal Mohanlal
Gangani,
son of Mohanlal R. Gangani,
major of age,
Civil Engineer, Builder &
Developer,
residing at Galaxy Building,
Near Mahalaxmi Temple,
Panaji-Goa
and office at 7, First Floor,
Diamond
Chambers, 18th June
Road,
Panaji-Goa.
... Opposite Party
Dated:26-02-2009
ORDER
[Per Smt. Caroline Collasso, Member] The Complainant one Smt. Saraswati Singh presently resident of Jamshedpur, Jharkand has filed this complaint through her duly constituted attorney under POA executed in Jamshedpur. The Opposite Party Shri Girdharlal M. Gangani is a builder/developer engaged in the business of constructions of buildings/flats/duplex bungalows and resident of Panaji Goa.
It is the grievance of the Complainant that she had entered into an agreement with the Opposite Party dated 22-04-1999 whereby it was contracted that the Opposite Party would construct for the Complainant a flat at "Jay Kamal"complex for a total cost of Rs. 5 lakhs.
The mode of payment was as per schedule IV of the agreement. The Complainant asserts that the entire amount of Rs.5 lakhs was paid and receipts evidencing the payments were appended to the complaint. The Complainant further asserted that an additional amount of Rs.75,000/- was paid in cash towards the construction and a receipt of the said amount was acknowledged by the Opposite Party. Under the terms of the agreement the possession of the said flat was to be delivered to the Complainant/purchaser within a period of six months from the date of execution of the said agreement on payment of amounts due and payable. By clause 9 of the said agreement, it was agreed that in the event of the builder/Opposite Party was unable to complete the construction and deliver possession of the said flat within a period of six months, the Complainant /purchaser would be able to exercise the option to cancel the agreement and demand immediate refund of all amounts paid to the Opposite Party/Builder and in such event the Opposite Party/builder would refund to the Complainant/Purchaser all the monies received without any interest within 60 days from the receipt of a notice in writing in that behalf by the purchaser. It was further agreed under the same clause that in the event of default of payment of monies within the stipulated period of 60 days, the Opposite Party/builder would be liable to make payment to the purchaser/Complainant @ 24% p.a. from the date of default till payment.
Needless to say that on completion of the "Jai-Kamal" complex the Opposite Party/Builder would convey/get conveyed the respective undivided right in the property in the name of the Complainant/Purchaser either by way of independent sale deeds or in the name of any legal entity. It is the case of the purchaser that despite payment of the entire amount of Rs.5,75,000/- by 07-12-2000, the said flat was incomplete and as such legal notice dated 19-05-2003 on behalf of the Complainant/Purchaser was sent to the Opposite Party/builder. By this notice inter alia the Opposite Party/builder was called upon to pay Rs.5,75,000/- against the principle amount given by the Complainant along with interest @ 24% p.a. and additional amount of Rs.2 lakhs for physical harassment, mental torture, and expenditure on another account incurred by the Complainant. Though the notice was received by Opposite Party/Builder, no reply or response was forthcoming. In such circumstances the Complainant was constrained to file the present complaint seeking the total reliefs amounting to Rs.20,22,000/- under various heads i.e principle amount plus interest, rent amount she would have received, travel from Jamshedpur to Goa, compensation for mental tension, agony and suffering. The Complainant annexed copies of POA, agreement with amendment to schedule IV (on mode of payment), receipts evidencing payment of cash, legal notice and photographs of incomplete construction.
On being noticed, the Opposite Party filed his written version contesting the claim on various legal and factual grounds. Briefly the Opposite Party claimed that the complaint was barred by law of limitation; was in violation of section 37 of the Indian Contract Act 1872; was in derogation of the provisions contained in Specific Relief Act, 1963. Besides the Opposite Party claimed the complaint was instituted by a person not authorized to do so and neither such authorization was produced at the time of filing of the complaint; that this Commission has no pecuniary jurisdiction since the amounts claimed were inflated and a figment of the imagination of the Complainant; that the Complainant was not a consumer as she had no intention to reside in the said premises and that the premises would be used exclusively for 'commercial' purposes. The Opposite Party also claimed that the agreement was voidable in as much that the said agreement came to be signed under undue influence which was exercised against the Opposite Party. To substantiate this claim there was a convoluted statement of facts leading nowhere and not a shred of evidence to support the claims mentioned therein. On specifics, the Opposite Party denied that the Attorney of the the Complainant was duly authorized to file the present complaint and to act on her behalf; with regard to the contents of paras 4, 5, 6 containing the payments and the receipts thereof along with the various claims, the Opposite Party has merely denied the contents thereof. Interestingly, the Opposite Party has stated that the total costs of the premises would actually work out to Rs.12,87,000/-. The Opposite Party admits receiving the notice but claims it was not replied to as the Complainant had suppressed material facts. The Opposite Party made further claims of cheques bouncing but again did not produce any evidence or state what action was taken thereon. Opposite Party claimed that the Complainant was fully aware that an amount off Rs.3,10,000/- was paid to the Opposite Party. To be noted, nowhere has the Opposite Party stated or claimed that the said flat was available for possession and/or that the same had been offered to the Complainant.
Affidavit in evidence reiterates the averments of the complaint. The Opposite Party prior to filing his written version sought to cross examine the Complainant and was permitted to do so through a questionnaire to which he submitted a list of 103 questions. The said questionnaire was answered by the Complainant through her POA, except those which were found to be irrelevant. The Opposite Party through another application, sought answers to all the unanswered questions and the same was rejected vide order of this Commission dated 19-10-2006 having noted that the unanswered questions were irrelevant in deciding the issues in dispute. This order has not been challenged. Not to be outdone, the Complainant also sought to question the Opposite Party through a questionnaire, which was done. Needless to say nothing of substance was elicited.
Affidavit in evidence of Opposite Party was filed and written arguments of Complainant and Opposite Party were placed on record.
The challenge of the Opposite Party to the agreement that it was under undue influence needs to be rejected outright as there is nothing on record to substantiate this claim. It is difficult to believe that the builder ostensibly carrying on a business of construction of complexes/flats/buildings would be pressurized to sign an agreement. Besides, if there was any force/coercion or undue influence on the part of the Complainant, the same could have been brought out in the reply to notice which was served on the Opposite Party/builder in May 2003 i.e. more than a year prior to the filing of the complaint. There is no doubt that the agreement was voluntary on behalf of both parties and the allegation of undue influence is a clear afterthought. By the terms of the said agreement the flat was to be constructed within 6 months on receipt of the amount of Rs.6 lakhs under a given schedule of payment mentioned earlier. The Opposite Party faults the Complainant and resorting to section 37 of the Contract Act states that there has been no categorical averment that the first installment of Rs.3 lakhs was paid by the Complainant and as such the very basis of the contract has not been established since it was incumbent on the Complainant to specifically state and aver that the Complainant has performed the obligations cast on the Complainant under the agreement dated 22-4-1999. The reasoning of the Opposite Party is flawed on two grounds, both on fact and on law. Though schedule IV of the agreement states that the first payment at the time of signing the agreement was to be Rs.3 lakhs, there is an amendment to the said schedule wherein item No.1 states at the time of signing agreement Rs.2 lakhs to be paid. In any event it is too late in the day to make such a claim since the receipts clearly show the payments of Rs.5,75,000/- and all in due time. Further section 37 of the Contract Act states; Obligation of parties to contract - The parties to a contract must either perform or offer to perform, their respective promises unless such performance is dispensed with or excused under the provisions of the Act, or of any other law".
It is clear from the averments that the consideration has been fully paid for by the Complainant and that fact is writ large on the complaint.
On the issue of limitation we have no hesitation in holding that the complaint is well within time. Doubtless, the powers under clause 9 were invoked by the Complainant as on 19th May 2003 and as such limitation would commence from that date. Besides, the flat not having been delivered, the cause of action is continuing one. The claim that the complaint has been filed by an attorney who has no powers to do so has to be stated only to be rejected. The POA on record makes it abundantly clear that the said power were given in terms of the purchase of the said flat and the Complainant being a lady resident in Jamshedpur had appointed the said Shri Hari Moheshwar Athale being a family friend and resident of Goa to act on her behalf. The attorney was authorised and empowered inter alia to institute, carry on take legal proceedings for taking over the possession of the said flat or to execute or to do or concur in any case to be executed and do all such deeds, instruments and things in relation to take legal action against the said builder for taking possession of the said flat, premises or recovering claims with damage, file suit in any court or forum deem fit or thought necessary by the attorney. Further the attorney has been empowered to appear and act in all such courts and sign and file plaints, written statements, applications etc. and to verify the same besides the general powers to do all acts, deeds and things which the attorney thinks fit and necessary for the purpose aforesaid as fully and effectually in all respects as the principle could do herself. Besides, it may be noted that the fundamental claim of the Complainant is based on documentary evidence, certified copies of which are on record and not disputed by the Opposite Party such as agreement, payment receipts, legal notice etc. The challenge of the Opposite Party that Complainant was not a consumer was on the basis of an averment made by the Complainant that she would have earned an amount of Rs.2,90,000/- by renting out the premises, if given to her in time and for which a letter dated 16-10-1999 addressed to Mr. Rajeshwar Singh has been produced on record which disclose an intention to rent a flat. The said letter purports to be from one Mr. Pithambaran H. R. and admin (Usha Ispat Ltd.,). It may be noted that the letter does not categorically refer to the particular flat, besides there is no affidavit by the said Pithambaran to substantiate the facts of the letter so the same is mere speculation. It may also be noted that the agreement does not indicate that the purchase was for a commercial purpose. Hence we hold that Complainant is a consumer within the meaning of the Consumer Protection Act. On the aspect of the complaint being in derogation of the provisions of the Specific Relief Act, the grievance made by the Opposite Party seems to be that the Complainant has attempted to abuse the process of law and with malafides invoked the jurisdiction of the Consumer Fora, instead of a Civil Court which if done would have resulted in the plaint being rejected at the threshold itself for want of specific statements and averments. Without going into the pros and cons or what could and would have been done by a civil court, the Consumer Protection Act has been specifically enacted in order to provide speedy and affordable justice to consumers. Moreso, it must be noted that building construction is brought under the purview of the Consumer Protection Act, and the Complainant has every right to seek redress in these Fora.
A perusal of the documents on record make it abundantly clear that the Complainant has substantiated his claim of entering into an agreement with the Opposite Party/builder and payment of monies for a flat in Jay Kamal complex. The Opposite Party on the other side has besides mere denials resorted to frivolous objections and arguments which are more in the nature of delaying the reliefs sought for by the Complainant. Thus the complaint has established a deficiency of service on behalf of the Opposite Party. However, we note that the relief for Rs.2,00,000/- rent that the Complainant may have received in the future without any concrete proof is mere speculation and thus cannot be granted. So also the relief for travel to and fro from Jamshedpur to Goa is not substantiated in the form of tickets etc. and the same cannot be granted. With reference to the prayer for compensation of Rs.3,50,000/- also, the amount in our mind does not sound reasonable. In the circumstances, the complaint is partly allowed.
ORDER The Opposite Party is directed to pay to the Complainant the sum of Rs.4,95,000/- and Rs.75,000/- from the date of their respective payments @ 24% p.a. till payment. No further order as to costs. The amounts to be paid within 60 days of this order.
Pronounced.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member