State Consumer Disputes Redressal Commission
Shri Abhay Shriramaji Kadaskar vs M/S. Armor Developers Pvt. Ltd on 17 August, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, CIRCUIT BENCH, NAGPUR 5th floor, Administrative Building, Civil Lines, Nagpur-01 Consumer Complaint CC/07/20 (Not in confonet) Shri Abhay Shriramaji Kadaskar Age 29 years, R/o. Agro Services, Main Road, Saoner- 441 107, Distt. Nagpur .. Appellant (s) Versus M/s. Armors Developers Pvt. Ltd., Through Its Managing Director, Mr. Anand N. Khobragade, 590, Nava Nakasha, Nr. Swastik High School, Nagpur 440 017 .. Respondent (s) BEFORE: Hon'ble Mr. S. M. Shembole PRESIDING MEMBER HON'BLE SMT.JAYSHREE YENGAL MEMBER HON'BLE MR.N. ARUMUGAM MEMBER PRESENT: Adv. Mr. Kakani ......for the Appellant Adv. Mr. Solat ......for the Respondent ORDER
(Delivered on 17/08/2011) Per Smt. Jayshree Yengal, Honble Member.
1. Complainant Abhay Kadaskar has filed present consumer complaint under section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against opponent M/s Armors Developers Pvt. Ltd.
2. In brief complainants case is that:-
3. The opponent is in the business of housing construction and the complainant had booked a flat in the housing scheme "Armor Vishwash" a scheme floated by the opponent. An agreement to sale was executed on 08/05/2006 between both the parties. According to the said agreement flat No. 202 was booked by the complainant for consideration of Rs.22,50,000/-. It was agreed by the opponent to hand over the possession of the said flat on or before 31 January, 2007.
4. The complainant had paid an amount of Rs.19,68,000/-towards consideration as per the agreement.
5. It is the contention of the complainant that since he had paid the consideration as per the agreement to the opponent it was obligatory on the part of opponent to hand over the possession of the flat booked by the him by 31 January,2007.
6. The complainant had paid an amount of Rs.19,68,000/- towards the cost of flat and Rs.2,82,000/- was with held as balance towards the cost of flat because the work of construction was not completed as per the agreement executed between the parties.
7. It is the contention of the complainant that he has obtained loan from the Punjab National Bank for the purpose of purchasing the said flat and repayment of the same had already started though he had not received the possession of the flat and therefore he was put to dual expense one as repayment of loan and secondly as payment of rent for the house that he was required to hire since he did not have any house of his own.
8. It is the contention of the complainant that the incomplete work in construction of flat No. 202 was as follows:-
Flat No. 2021.
Inside painting and finishing work of Complainant flat has not been completed.
2. Doors are fixed but polishing and finishing is incomplete.
3. Electric switches and plug points are not fixed.
Scheme
1. Lift with power back up generator is not installed.
2. Staircase and parking area are not titled.
3. Main entrance not secured by front gate.
4. Exterior painting and finishing is incomplete.
5. Sewers and drainages are laid but not functional.
6. Overall, missionary, electrical and painting work on scheme is not completed.
9. It is contended by the complainant that since, the opponent failed to complete the construction work of the flat and hand over the possession of the flat to him, he was required to visit Nagpur from Bombay very frequently thereby incurred unnecessary and exorbitant expense. The complainant wanted to settle this issue amicably therefore he repeatedly approached the opponent and requested that the possession of the flat be handed-over to him. But the opponent failed to hand over the possession of the flat to him.
10. Lastly, by a letter dated 16/12/2006 he asked the opponent to further accept payment of Rs.1,91,000/- by cheque No. 893043, dated 15/12/2006 towards the cost of flat No. 202. The complainant in the said letter has also mentioned that till date he has paid to the opponent an amount of Rs.19,68,000/- and the balance payment of Rs.2,82,000/- would be paid to him stage wise as per development stages mentioned in the agreement. The complainant has further mentioned that the opponent had expressed his inability to hand over the possession of the flat 31/01/2007 as per the agreement and therefore he had agreed to accept the possession of flat till 28 February, 2007 but not later than 28 February 2007 since the complainant was in urgent need of the flat.
11. The complainant by letter dated 20/07/2007 sent a second remainder by RPAD to the opponent to complete the work of flat No. 202 and to handover the possession of the same to him, but the opponent failed to complete the construction work of the flat No. 202 and hand over the possession to him in spite of accepting such a huge sum of Rs.19,68,000/-.
12. Alleging deficiency in service and unfair trade practice the complainant has filed the present consumer complaint seeking direction from this Commission to the opponent to hand over the possession of the flat.
Execute the sale deed with occupancy certificate.
And impose 18% interest on amount Rs.19,68,000/- from January-2007 till date of execution of sale deed.
And compensation for mental agony and harassment to tune of Rs.4,00,000/- and Rs.15,000/- towards cost of proceeding.
13. In support of the contentions made in the complaint, he has filed deed of agreement for sell dated 08/05/2006, Income Tax Provisional Certificate issued by Punjab National Bank Housing Finance Limited , letter dated 16/12/2006 issued by the complainant to opponent by RPAD, letter dated 20/07/2007 issued by the complainant to the opponent by RPAD, copy of the air tickets and photographs of the flat No. 202 and building site.
14. The opponent resisted the complaint vide his reply dated 02/01/2008. He has denied any deficiency in services rendered and has denied all the allegations of the complainant.
15. The opponent has admitted the receipt of Rs.19,68,000/- from the complainant but has denied it being towards the cost of the flat and has submitted that the complainant has paid Rs.16,77,000/- towards consideration amount of the flat and Rs.2,91,000/- is accepted towards the extra work to be done in respect of electric work and water connection. The opponent is yet to receive Rs.2,82,000/- as balance consideration of the flat.
16. It is further pleaded by the opponent that the complainant had intentionally not informed the Punjab National Bank about the completion of work and has deliberately avoided to release the balance installment of Rs.2,82,000/- of the loan amount from the Punjab National Bank.
17. The opponent has given the details of the alleged additional work which he has done for the complainant for the consideration of Rs.2,91,000/- which is as follows.:-
Sr. No. Particulars of addl. work Amount in Rs.
1.
Cost of Vitrified tiles flooring 68,740/-
2. Complete fixing of vitrified tiles flooring 28,234/-
3. POP work 65,200/-
4. Extra electric work A.C. Points etc. 23,000/-
5. Modular Kitchen work 74,526/-
6. Cost of removing of tiles 09,500/-
Total 2,69,200/-
+ Electrical and water Charges 22,000/-
Grand Total 2,91,000/-
Rounded to 2,91,000/-
18. The opponent has filed copies of the bills in respect of the alleged extra work which he has done for the complainant.
19. The complainant has filed rejoinder to the complaint on 07/02/2008 and has denied that the amount of Rs.2,91,000/- was paid to the opponent towards extra work of electricity and water charges and further contended that there is no agreement executed between parties for doing any extra work in the flat.
20. It is further contended by the complainant that till date the opponent has not provided any electric meter to the flat owners and still there is only on electric meter in the name of the original land owner of the scheme and all the occupants are paying the electric charges as per this single electric meter.
21. It is further contended by the complainant that the additional work done in flat No. 202 of POP and Modular Kitchen has been done by M/s Arina Associates, a qualified interior designer engaged by him and he himself has paid Rs.31,000/- to the said M/s Arina Associates. Further he has submitted that he himself has paid Rs.64,572/- towards the work of modular kitchen & Rs.8,000/- for purchase of electric equipment. In support of this contention he has filed copies of the bills.
22. It is further submitted by the complainant that the extra electric point work which is done by him was during the stage of wiring work and was well within agreement period and for which he himself has made payment of Rs.11,500/- by cheque No.120981 dated 18/08/2006 to opponent Mr. Anand Khobragade. All the other extra work claimed to have been done by the opponent is allegedly fraundent and vaxcious and till today the scheme is incomplete.
23. It is the contention of the complainant that the opponent has failed to abide by the assurance given to him, and till date the possession of the flat is not handed over to him. The opponent is in habit of harassing the purchasers and provide deficient service to the purchasers. As a result therein as many as five consumer complaints have filed by different consumers in the District Consumer Forum alleging the deficiency in service.
24. Heard learned counsel for both side. The learned counsel for the complainant submitted that the complainant had booked a flat with opponent in the housing scheme floated by the opponent as per the agreement executed between parties. The copy of the agreement is filed on record and also the complainant has filed the copy of letters dated 16/12/2006 and 20/07/2007 calling upon the opponent to complete the construction of the flat No. 202 and hand over the possession by 31/01/2007 as agreed.
25. The complainant has made payment of Rs.19,68,000/-.
26. The complainant has also filed acknowledgment receipts of the letters issued by the complainant to the opponent. As regards expenses incurred the complainant has filed the copies of air and railway tickets for journey required to be undertaken from Bombay to Nagpur and vice versa.
27. The complainant has also filed photographs of the flat in dispute showing the incomplete construction.
28. On the basis of all these documents filed on record. The complainant has sought relief of seeking direction against the opponent to complete the construction of flat no. 202 and provide amenities as mentioned in the agreement and handover the possession of the flat no. 202 and execute the sale deed for the same. The complainant has further sought direction against the opponent for imposing 18% interest on the sum of Rs. 19,68,000/- from January-2007 i.e. schedule date of delivery of possession of the flat as per the agreement till date of execution of sale deed, further compensation of Rs.4,00,000/- and Rs.15,000/- as cost of proceeding.
29. The learned counsel for the opponent has argued that dispute involved can not be decided or resolved in a summary proceeding since except the agreement dated 08/05/2006, no other fact is admitted by the parties. Therefore, the dispute can not be decided in summary proceeding and detailed evidence would be required to be adduced by the parties to establish the claim.
30. It is also admitted by the opponent that in presence of aforesaid agreement the opponent was to hand over the possession of the flat on 31/01/2007.
31. It is also admitted that the said flat was of the total value of Rs.22,50,000/-. However, the opponent has denied the receipt of Rs.19,68,000/-towards the cost of the flat as alleged by the complainant.
32. The opponent has specifically submitted that payment received from the complainant as per agreement is to tune of Rs.16,77,000/- only and the balance amount of Rs.5,73,000/- is outstanding towards the cost of flat .
33. The opponent in support of his contention that he had received 2,91,000/- towards the alleged extra work done by the opponent, has filed the copies of the bill in respect of cost of tiles , POP work, extra electric work, modular kitchen work, work for removing tiles and photographs etc. with the written version filed by the opponent on 02/01/2008.
34. By rejoinder to the complaint on 07/02/2008 and has pleaded that extra work which is alleged to be done by the opponent is actually done by himself and in support of which the complainant has filed the copies of bills towards purchase of plywood, Laminate, trolley with fitting, GI sheet, receipts issued by the Arina Associate dated 05/05/2007 of the sum of Rs.5,000/- and dated 30/08/2007 for the sum of Rs.26,000/-.
35. The complainant has filed an application for appointment of Commissioner on 29/04/2008 to examine the extent construction of work which is being done in flat No. 202 and the opponent has objected to this application vide its reply dated 17/05/2008 on technical ground of application being not supported by affidavit.
36. The opponent has however agreed for the appointment of Commissioner to investigate the incomplete work as alleged by the complainant in his complaint.
37. This Commission by its order dated 12/06/2008 has allowed the application for appointment of Commissioner in pursuance of which one Mr. Shelendra Morya was appointed as a Commissioner to inspect the site and has filed his report on record.
38. The Commissioner has submitted his inspection report on 24/07/2008.
39. The opponent has further alleged that the extra work which is alleged to have been done by the complainant by incurring extra expenses is an after thought, as it is not pleaded in the complaint.
40. The complaint is filed on 28/08/2007 and the extra work i.e. alleged to have been done by the complainant has been pleaded for the first time by way of a rejoinder filed on 07/02/2008.
41. The learned counsel for the opponent has vehemently argued that proceedings under the Consumer Protection Act are essentially summary in nature, and adjudication of issues involving disputed factual question should not be taken up and be left to be decided by the Civil Court. In support of this argument the learned counsel for the opponent has relied on 2006 CTJ 1073 (SC) (CP) Oriental Insurance Company Ltd. Vs. Munnimahes Patel and 2009 CTJ 294 (CP) (NCDRC) Amitabha Dasgupta Vs. United Bank of India.
42. Heard counsel for both the parties and perused the copy of the complaint, documents and affidavits filed by the complainant and written version, documents and affidavits filed by the opponent and the commissioner report filed on record.
43. We find that the issues involved in the consumer complaint are varied and numerous, excepting the fact that the complainant and the opponent had executed an agreement of sale dated 08/05/2006 in respect of purchase of flat No. 202 in the housing scheme of Armor Vishavas for the total consideration of Rs.22,50,000/-. No other fact is admitted and proved by the parties.
44. The issues which require adjudication are :-
i) What is the outstanding amount to be paid to the opponent towards the cost of the flat-
According to complainant it is Rs. 22,50,000/- - Rs.
19,68,000/- = Rs.2,82,000/-
According to the opponent Rs. 22,50,000/- - Rs. 16,77,000/- = Rs.5,73,000/-
ii) The alleged incomplete construction work of flat no. 202, there is variation in pleading in the complaint and commissioner report.
iii) Extra work allegedly done by the opponent- bill filed in support; extra work allegedly done by the complainant- affidavit filed in support then the issue arises as to if the possession of the flat was not given to the complainant then how could he have got the extra work done. This fact is not pleaded in the complaint however it is brought on record by way of rejoinder i.e. after filing of written version by the opponent.
iv) There are allegations and counter allegations is lodged by both the parties resulting into various disputed facts, which cannot be decided in summary proceeding. Therefore in our opinion detailed evidence is required to be adduced in the interest of justice.
45. In the circumstances we find much force in the argument put forth by the learned counsel for the opponent.
46. Therefore, we decline to make any observations on merits and pass the following order.
ORDER
1. The complaint is dismissed for want of jurisdiction .
2. No order as to cost.
Delivered on 17/08/2011.
[ Hon'ble Mr.S.M. Shembole] PRESIDING MEMBER [HON'BLE SMT.JAYSHREE YENGAL] MEMBER [ HON'BLE MR.N. ARUMUGAM] MEMBER