State Consumer Disputes Redressal Commission
Shri Sunil S/O. Gyanchandji Raisoni & 5 vs Wasudeo S/O. Harilal Patodia on 23 October, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
CIRCUIT BENCH
AT NAGPUR
5 TH FLOOR,
ADMINISTRATIVE BUILDING NO. 1
CIVIL LINES,
NAGPUR-440 001
First Appeal
No. A/07/397
(Arisen out of Order Dated 02/03/2007 in Case
No.CC/06/328 District Forum,
Nagpur )
1. Shri Sunil
S/o. Gyanchandji Raisoni,
R/o. Ramdaspeth, Nagpur.
2. M/s. Vibrant
Fiscal Services Ltd.,
Through its authorized Director
Shri Sunil S/o. Gyanchandji Raisoni,
R/o. Ramdaspeth, Nagpur.
3. Shri Aditya
S/o Rajendra Sancheti,
R/o. Shastri Nagar, Mul Road, Chandrapur.
4. Shri Anil S/o.
Harachand Sancheti,
R/o. Gandhish, Nasik.
5. Shri Chetan
S/o. Prakash Bohra
R/o. 901, B-1, Lok-Everest,
Near Cement Company,
Mulund (W), Mumbai.
6. M/s. Rai Udyog
Limited
Through its Authorised Signatory
Shri Prashant Bhalchandra Thakare,
R/o. Near S.T. Stand, Ganeshpeth, Nagpur.
..........Appellant(s)
Versus
Wasudeo S/o. Harilal Patodia,
R/o. Annapurna Apartment,
Behind Gulmohar Hall, Pade Layout,
Khamla Road, Nagpur.
...........Respondent(s)
First Appeal
No. A/07/420
(Arisen out of Order Dated 02/03/2007 in Case
No.CC/06/328 District Forum,
Nagpur )
Wasudeo S/o. Harilal Patodia,
R/o. Annapurna Apartment,
Behind Gulmohar Hall, Pande Layout,
Khamla Road, Nagpur. . ..........Appellant(s)
Versus
1. Shri Sunil
S/o. Gyanchandji Raisoni,
R/o. Ramdaspeth, Nagpur.
2. M/s. Vibrant
Fiscal Services Ltd.,
Through its authorized Director
Shri Sunil S/o. Gyanchandji Raisoni,
R/o. Ramdaspeth, Nagpur.
3. Shri Aditya
S/o Rajendra Sancheti,
R/o. Shastri Nagar, Mul Road, Chandrapur.
4. Shri Anil S/o.
Harachand Sancheti,
R/o. Gandhish, Nasik.
5. Shri Chetal
S/o. Prakash Bohra
R/o. 901, B-1, Lok-Everest,
Near Cement Company,
Mulund (W), Mumbai.
6. M/s. Rai Udyog
Limited
Through its Authorised Signatory
Shri Prashant Bhalchandra Thakare,
R/o. Near S.T. Stand, Ganeshpeth, Nagpur.
...........Respondent(s)
BEFORE:
HON'ABLE MR. B.A. Shaikh, Judicial PRESIDING MEMBER
HON'BLE SMT.JAYSHREE YENGAL MEMBER
HON'BLE MR.N. ARUMUGAM MEMBER
PRESENT:
Adv. Mr. Vaishnav for the original O.P.
......for the Appellant
Adv. Mr. Mandalekar for the original
complainant.
......for the Respondent
ORDER
(Delivered on 23/10/2013) PER SHRI B.A. SHAIKH, HON'BLE PRESIDING MEMBER.
1. Both these appeals are being disposed of by this common order as they are directed against the same order dated 02/03/2007 passed by the District Consumer Forum, Nagpur in Consumer Case No. 328/2006, by which the complaint has been partly allowed.
2. The case of the complainant as set forth in the complaint in brief is that he entered into agreement to sale with the opposite party (for short O.P.) Nos. 1 to 6 to purchase a flat admeasuring 609.134 Sq. ft. for a consideration of Rs.7,93,124/-. He paid Rs.1,93,124/- at the time of execution of the agreement to sale and he also paid remaining amount Rs.6,00,000/- at various stages as per demand made by the OPs. However, the OPs issued notice dated 27/06/2006 to him demanding more amount of Rs.1,24,090/- from him without any right, though he paid full amount of consideration to them. He(Complainant) sent reply to them and requested them to execute sale deed of the flat within a week. However, they have not executed the sale deed. He is therefore forced to reside in rented premises. He is paying monthly rent of Rs.3000/- He therefore, prayed that direction to be given to opposite parties to execute registered sale deed in his favour and to pay him Rs.2,50,000/- as compensation towards mental harassment and Rs.90,000/- towards causing inordinate delay in execution of the sale deed and Rs.3,000/- per month towards rent of the premises till execution of sale deed and handing over of possession of flat to him.
3. The O.Ps. filed their common written version and resisted the complaint. It is their case in brief that the complainant has falsely stated that he made full payment of Rs.7,93,124/-. He is still liable for Rs.13,124/- towards balance consideration. Move over, he is also liable to pay them Rs.26,966/- towards service tax, Rs.25,000/- towards electricity meter deposit and other connected charges, Rs.4,000/-
towards expenses required for execution of sale deed and Rs.10,000/- towards Society membership contribution charges. It is denied that complainant is residing in a rented premises and paying rent of Rs.3000/- per month. Complainant refused to pay total Rs.74,090/- lawfully demanded by them from him for aforesaid purpose. The complainant is also liable to pay penalty of Rs.50,000/-. The total amount due from him is Rs.1,24,090/-. They are ready to execute the sale deed and hand over the possession of the flat to the complainant on full and final payment as above which is done from complainant to them. They also submitted that the Forum below has no jurisdiction to decide the complaint since there is a arbitration clause in the agreement to sale. They therefore submitted that complaint is liable to be dismissed.
4. The District Consumer Forum below after considering the evidence brought on record and the decisions of Hon'ble National Commission and Supreme Court cited before it came to the conclusion that it has got jurisdiction to decide the complaint and that the demand of Rs.10,000/- made towards the society contribution, under notice is not proper since it can be paid out of the deposit made by all flat owners. It also observed that the expenses for electric transformer are to be borne by the all the flat owners jointly in equal shares, and there is no documents showing how much tax is to be paid by the opposite party and what expenses are required for installation of electric transformer for the purpose of recovery from the complainant. It also observed that demand of penalty of Rs.50,000/- from the complainant is illegal as there is no such agreement for payment of penalty. It also observed that at the same time the complainant has not adduced evidence to prove that he is residing in a rental premises and paying monthly rent of Rs.3,000/- and that there is no stipulation about the date on which the possession of the flat is to be handed over to the complainant. The Forum below came to the conclusion that there is deficiency in service to the O.Ps. to the complainant. It directed the O.Ps. under impugned order to take from the complainant expenses required for installation of electric transformer and the taxes imposed by the Government and then to execute sale deed of the flat in favour of the complainant. It is also made clear that the expenses for that sale deed shall be borne by the complainant. It is further directed that no more fees shall be recovered from the complainant. It is also directed that the O.Ps. shall pay to the complainant Rs.10,000/- towards mental harassment and Rs. 5000/- towards cost of the complaint.
5. Feeling aggrieved by that order, the original O.Ps. have filed appeal No.A/07/397, whereas original complainant has filed appeal No. A/07/420. The learned Advocates of both parties filed written notes of arguments. We have also heard the respective Advocates of both parties and perused the documents placed before us by them in both the appeals.
6. The parties in both the appeals are herein after are referred to by their original status in the complaint as complainant and the O.Ps. for the sake of convenience. The learned Advocate of the original complainant Wasudeo Patodia argued that the grounds raised by the O.Ps. in their appeal No. A/07/397 have no substance. According to him, the District Consumer Forum below rightly held that it has got jurisdiction to decide the complaint in view well settled law and that the impugned order is passed against the O.Ps. after appreciating the facts brought on record. He also argued that the demand made by the O.Ps. about service tax, stamp duty, registration charges and the penalty is illegal and therefore District Consumer Forum below has rightly not accepted the said demand made by the O.Ps. Therefore he submitted that appeal preferred by original O.Ps. may be dismissed. He also argued that the O.Ps. have not delivered possession of flat since last six years and hence complainant is required to reside in a rented premises and therefore, O.Ps. may be directed to pay Rs.1,00,000/- per month to the complainant. He also argued that the complainant has paid full consideration of Rs.7,96,124/- to the O.Ps. and that the O.Ps. are enjoying benefit of that amount and that of possession of the flat also and therefore, no leniency be shown to the O.Ps. Thus he requested that the complainant may be awarded compensation of Rs.1,00,000/- per month for last six years and accordingly the appeal No.A/07/420 filed by the complainant may be allowed. He relied upon observation made in the following cases:-
i.
M/s. National Seeds Corporation Vs. M. Mudhusudan Reedy and Anr. in Civil Appeal No. 7543 of 2004 decided by Hon'ble Supreme Court on 16/01/2012. In that case objection was raised about the jurisdiction of District Consumer Forum to entertain the complaint filed by the respondent because the issues relating the quality of seeds are governed by the provisions contained in Seeds Act, 1966. It is observed that any attempt to exclude farmers from ambit of Consumer Protection Act by implication will make that Act vulnerable to an attack of unconstitutionality on the ground of discrimination and there is no reason why the provisions of Consumer Protection Act should be so interpreted.
ii.
Skypak Couriers Ltd. Vs. Tata Chemicals Ltd., AIR 2000 SC 2008. It is observed by the Hon'ble Supreme Court that even if there exists an arbitration clause in the agreement and a complaint made by a consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar to entertainment of the complaint by the Redressal Agency, constituted under Consumer Protection Act, since the remedy provided under the said Act is in addition to the provisions of any other law for the time being enforce.
iii.
Tamil Nadu Housing Board and Anr. Vs. R. Muthukrishnan, II (2009) CPJ 243 (NC). It is observed that O.P. cannot raise tentative cost when no additional compensation is paid by them to original land owner, by way of compensation resulting from land acquisition.
iv.
O.S. Bajpai Vs. The Administrator, decided by Hon'ble Delhi High Court on 28/05/2010. In that case it is observed that once Apartment Owners Association is formed, all functions relating to the management of the building will be performed by the said Association.
v.
Bhalchandra Shivram Joshi Vs. Satish Dhaneshn Kollara, I (2010) CPJ 107 (NC). In that case execution of sale agreement was refused by the O.P. The direction was given to deliver vacant possession of the house on payment of balance consideration by the complainant. Compensation of Rs.25,000/- for mental harassment and cost of Rs.5,000/- was also awarded in that case.
vi.
Shivdarshan Builders and Developers and Others Vs. Sanjiv and Anr., I (2012) CPJ 519 (NC). In that case sale deed was not executed and hence direction was given to execute the sale deed and that complainant shall bear the expenses for the same. It is observed that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence go on filing meritless petition in different Fora.
vii.
Subhash Chandra Ram Vs. Arya Grih Nirman Sahakari Samiti and Anr., I (2012) CPJ 175, Chattisgadh S.C.D.R.C., Raipur. In that case compensation of Rs.25,000/- was awarded towards substandard quality of construction.
viii.
K. Suresh Vs. New Indian Assurance Co. Ltd. and Anr., in Civil Appeal No. 7603/2012 decided by Hon'ble Supreme Court on 19/10/2012. It is observed that while determining quantum of compensation, adjudicating authority has to keep in view the sufferings of the injured person and that approach of the Tribunal /Court has to be broad based.
ix.
Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. and Anr., decided by Hon'ble Supreme Court on 10/07/2008. It is held that the complaint is maintainable before the Forum and that builder owes a duty to make necessary application to competent authority and obtain the completion certificate.
x.
DLF Limited Vs. Mrudil Estate Pvt. Ltd., R.P. No. 412/2011 decide with other R.P. and Complaints decided by common order on 13/05/2013 by Hon'ble National Commission, Delhi. It is held by the Hon'ble National Commission that Consumer Fora constituted under Consumer Protection Act are not bound to refer the dispute to Arbitral Tribunal.
xi.
Nandita Shamnik Vs. DLF Universal Ltd., R.P. 187/2005 decided by Hon'ble National Commission on 20/03/2007. In that case during pendency of complaint, interim order was passed directing the builder to deliver the possession of the flat. The Hon'ble Supreme Court dismissed the SLP filed against that interim order. The Hon'ble National Commission had held that the stamp and registration charges are to be paid at the time when document is to be executed and registered and not in advance so that money can be kept by the builder for their use. The builder is not supposed to retain the charges with him till his pleasure, which would otherwise be an unfair trade practice.
xii.
Rukmani Yamma and Anr. Vs. Kirloskar Investment and Finance Ltd., II (2010) CPJ 284 (NC). In that case delivery of the possession was delayed and time was found essence of contract and delay was not satisfactorily explained. Local Commissioner was appointed to assess cost required to rectify the deficiency. The O.P. was held liable to pay penalty for late delivery of possession.
xiii.
Sanjay Nagar Residents Welfare Association Vs. Vice Chairman GDA. It is held that when possession was not given and additional amount was demanded as pre condition for giving possession, though complainants were in dire need of same, it amounts to unfair trade practice.
xiv.
Shivalik Vihar Sites Pvt. Ltd & Anr. Vs. Gurcharn Singh, III (2012) CPJ 276 (NC). It is observed that petitioners can not deprive respondents of their legal right to have possession of flat in question and that builders "Want to have the cake and eat too", as they received the entire consideration amount long ago and are also having flats with them. The petition was found gross abuse of process of law and therefore punity cost of Rs. 50,000/- was imposed.
7. On the other hand the learned Advocate of the original O.Ps. submitted that the Forum below did not appreciate the material fact properly, that no proper importance is given by the Forum below to clause No. 17 of the agreement which is relating to making of reference to the arbitrator to resolved the dispute, the District Consumer Forum below has also not properly considered the clause Nos.3, 6,17,15 & 16 of the said agreement which are relating to payment of interest at the rate of interest 3% over the delayed payment, payment all dues, cost, expenses, charges and deposit etc. by the purchaser to the developer/seller before delivery of possession of flat to the purchaser, to make deposit for obtaining sewerage, water and electricity connection and installation of respective meter in the proposed building, taxes levied by the State and Central Government on construction activity or building material to be paid by the purchaser and that the proportionate cost of installation of power transformer for the building to be paid by the purchaser. Moreover he submitted that complainant is required to pay Rs.13,124/- towards the balance consideration. Thus according to him on all said heads, the original complainant is required to pay total Rs.74,090/- to the original O.Ps. which he has not paid and that unless the amount demanded by O.Ps. from the complainant is paid, he is not entitled to obtain the sale deed of the flat from the O.Ps. He thus submitted that appeal preferred by the complainant may be dismissed and appeal preferred by O.Ps. may be allowed as impugned order is passed without proper consideration of evidence.
8. At the out set it is worthy to note that the Hon'ble National Commission very recently in the group of revision petitions and complaints referred to above, decided on 13/05/2013 had held that the Consumer Fora under C.P. Act are not bound to refer the dispute raised in complaint to Arbitral Tribunal in terms of arbitration clause of the agreement.
It is thus seen from the aforesaid judgments that the even though there is clause under agreement to settle dispute by way of arbitration, Forum has jurisdiction to decide the complaint. Therefore, the Forum below has rightly entertained the complaint.
9. Admittedly both the parties executed the agreement to sale of which copy is produced on record. The said agreement very specifically shows total consideration of Rs.7,93,124/-. The complainant has paid said amount to the O.Ps. as seen from the documents produced on record. The O.Ps. only raised contention that out of aforesaid amount the complainant has not paid Rs.13,124/- though the receipt of that amount is shown in the agreement. However, that cannot be accepted since the agreement as well as receipts produced on record by the complainant prove that the OPs received the total consideration of Rs.7,93,124/-.
10. The O.Ps. claimed from the complainant total Rs.1,24,090/- vide notice dated 16/07/2006 as follows:-
i.
Rs. 10,000/- towards Society membership ii.
Rs. 20,000/- towards E.M.D. charges iii.
Rs. 26,966/- towards service tax , iv.
Rs. 4,000/- towards sale deed expenses v.
Rs. 13,124/- towards balance consideration vi.
Rs. 50,000/- towards penalty charges.
-----------------------
Total Rs 1,24,090/-
------------------------
11. However, we find that the society membership fees can be paid only at the time of actual registration of the society.
Rs.20,000/- are to be paid towards electricity meter deposits, when actually meter is be installed in the name of the complainant. That can not be a condition precedent for execution of the sale deed. There is no clause under agreement to sale about payment of service tax of Rs.26,966/- by the complainant and hence that can not be recovered from the complainant. The amount of Rs.4000/- towards expenses for sale deed can be paid by the complainant only at the time of the execution of the sale deed. Hence, that can not be claimed from the complainant in advance before execution of the sale deed. We have found above that there is no dues from complainant towards consideration of flat as full consideration of Rs.7,93,124/- has been already paid as per agreement by the complainant to the O.Ps. Moreover, there is no clause under agreement for payment of penalty as claimed by the O.Ps. under notice.
12. We therefore hold that the O.Ps. have illegally demanded total amount of Rs.1,24,090/- from the complainant which is specified above. The District Consumer Forum below has therefore properly considered evidence brought on record in this respect. Under impugned order direction has been given to the O.Ps. to recover electric transformer charges and the taxes assessed by Government from the complainant and then execute the sale deed of the flat in favour of the complainant and complainant shall bear expenses of the sale deed. Therefore, we find no merits in the appeal No. A/07/397 filed by the original O.Ps. and it deserves to be dismissed.
13. So far as the appeal of original complainant is concerned we find that there is no merit in that appeal also. No date of delivery of the possession of the flat is mentioned in agreement to sale. Moreover, there is no evidence to showing that the complainant resided in a rented premises and paid the rent. The time is not essence of contract entered in to both the parties. The compensation of Rs.1,00,000/- per month claimed by the original complainant thus can not be allowed under the facts and circumstances of the present case. The aforesaid decisions relied upon by learned Advocate of the original complainant are not helpful to the complainant to grant the compensation claimed by him as the facts and circumstances of the present case are totally different from those of the said cases. Thus the appeal preferred by complainant also deserves to be dismissed.
ORDER
1. Appeal No. A/07/397 filed by the original O.Ps. is dismissed.
2. Appeal No. A/07/420 filed by the original complainant is also dismissed.
3. No order as to cost.
Dated:- 23/10/2013.
[HON'ABLE MR.
B.A. Shaikh, Judicial] PRESIDING MEMBER [ HON'BLE SMT.JAYSHREE YENGAL] MEMBER [ HON'BLE MR.N. ARUMUGAM] MEMBER ay