National Consumer Disputes Redressal
M/S. Siraj Developers & Anr. vs Yasmin Razak Vanoo on 15 November, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 124 OF 2015 (Against the Order dated 22/12/2014 in Complaint No. 99/2011 of the State Commission Maharashtra) 1. M/S. SIRAJ DEVELOPERS & ANR. 251 SHIVAJI NAGAR, N.M. JOSHI MARG MUMBAI-400013 MAHARASHTRA 2. SUNIL HARISHCHANDRA SHETYE (PROP. OF M/S. SIRAJ DEVELOPERS), 251, SHIVAJI NAGAR, N.M. JOSHI MARG, MUMBAI-400013 MAHARASHTRA ...........Appellant(s) Versus 1. YASMIN RAZAK VANOO B-403, OSWAL ORBIT ABOVE, M'CDONALD MIRA BHYANDER ROAD, MIRA ROAD EAST, THANE-401107 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Appellant : Mr. Anmol Chitale, Advocate For the Respondent : Mr. Uday B. Wavikar, Advocate with
Mr. Vikas Nautiyal, Advocate
Dated : 15 Nov 2017 ORDER
This appeal has been filed by the appellant, M/s. Siraj Developers and another against the order dated 22.12.2014 passed by the State Commission, Maharashtra in C.C. No.11 of 1999.
2. The brief facts of the case are that the appellant was the contractor to develop the area vacated by some slum dwellers and as per the policy of rehabilitation, he was entitled to get 50% of the vacated land and to develop and dispose it off to other buyers. Respondent booked a flat in the building being developed by the appellant. The respondent/complainant booked the flat for a total sum of Rs.26 lakhs and paid a sum of Rs.6,50,000/- as booking amount. The complainant paid different amounts from time to time, aggregating to Rs.13 lakhs. Later on, there was some dispute between the Slum Development Authority and the appellant contractor. The Authority cancelled the agreement executed with the appellant contractor and allotted the project to some other contractor. That matter is separately subjudice at some other level. It is the contention of the appellant on this count that he could not develop the property and could not deliver the flat to the buyer. When the respondent/complainant did not get the possession, he filed a complaint before the State Commission, Maharashtra. The State Commission vide its order dated 22.12.2014 allowed the complaint and passed the following order:
" : ORDER :-
(1)Complaint is partly allowed.
(2)Opponents are directed to hand over possession of the flat having 1000 sq.ft. area in the building at Survey No.208(P), Shivadi Division, Thakaji Jivraj Road, Shivadi, Mumbai-400 015 to the complainant by accepting remaining consideration of Rs.13 Lakhs from the complainant within six months. In case, opponents decline to accept the amount, complainant is at liberty to deposit said amount in the office of this State Commission within eight days from such refusal.
ALTERNATIVELY Opponents are directed to hand over possession of any another flat in the same locality of same size with same price to the complainant by accepting remaining consideration of Rs.13 Lakhs from the complainant within six months. In case, opponents decline to accept the amount, complainant is at liberty to deposit said amount in the office of this State Commission within eight days from such refusal.
ALTERNATIVELY At the option of the complainant, opponents are directed to pay amount of Rs.71,85,815/- to the complainant within ninety days, failing which the amount shall carry interest @ 12% p.a. from the date of complaint till its realization.
(3)Opponents are directed to obtain Occupancy Certificate and Building Completion Certificate and hand over it to the complainant.
(4)Opponents are directed to pay Rs.1 Lakh as compensation to the complainant on account of mental agony and physical hardship suffered by the complainant.
(5)Opponents are also directed to pay an amount of Rs.10,000/- to the complainant as costs of this litigation and bear their own costs.
(6)Copies of the order be furnished to the parties."
3. Aggrieved by the order of State Commission, the OP/appellant has filed the present appeal.
4. Heard the learned counsel for both the parties and perused the record.
5. Learned counsel for the appellant stated that the complaint was highly time barred and even then the State Commission has considered the complaint. The agreement for the flat was entered between the parties on 11.3.1995 wherein the possession was to be delivered in May, 1997. The complaint has been filed on 1.2.2011. Thus, the complaint is highly time barred. The State Commission has erred in allowing the time barred complaint. Learned counsel further mentioned that respondent had filed a criminal complaint on 9.9.1999. Thus, the respondent must have realized by that time that all negotiations have been completed and he was not in a position to get the possession of the flat, still the complainant did not file complaint within two years of filing of the criminal complaint. The State Commission has wrongly relied upon the decision of Hon'ble Supreme Court in Lata Construction & others Vs. Dr. Rameshchandra Ramniklal Shah and another (2000) 1 SCC 586. It was emphasized that the facts of that case are totally different and it was delivered in the context of two contracts, wherein the first contract has been found to be operative even after the second contract was signed.
6. Learned counsel for the appellant cited the following judgments in support of his arguments in respect of limitation.
(a) Udai Shankar Awasthi Vs. State of UP and Anr., (2013)2SCC435 and
(b) Raja Ram Maize Products Vs. Industrial Court of MP and Others, (2001)4SCC492
7. Coming to the merits, learned counsel further argued that as the contract of the appellant was cancelled by the concerned authority and the matter is still subjudice, the appellant was not in a position to develop the area and to build the flats. The State Commission has ordered possession of the flat or of the alternative flat in the nearby locality or refund of Rs.71,85,815/- . This amount has been calculated on the basis of the ready recknor supplied by the complainant. If the flat is not constructed and handed over, the money can be refunded to the complainant with an appropriate interest. There is no provision to award the compensation on the basis of existing market rate or the ready reckoner. Thus, prima facie, the order of the State Commission cannot be sustained and needs to be set aside in this appeal.
8. On the other hand, the learned counsel for the respondent/complainant stated that if the appellant was not in a position to construct and deliver the flat, the amount deposited by the complainant should have been returned to the complainant. However, the same has not yet been refunded. Thus, clearly the cause of action continued and therefore, there is no delay in filing the complaint and the State Commission has rightly relied upon the decision of the Hon'ble Supreme Court in Lata Construction (supra). Learned counsel further argued that he has booked the flat and invested the money in it. Had he received the flat in time, the cost of the flat would have been at least as per the ready reckoner as it is a document of the Government. Thus, the State Commission has rightly given an order of refund of Rs.71,85,815/- based on the ready reckoner. Learned counsel also added that the complainant is even ready to take the alternative flat if the appellant so desires.
9. Learned counsel for the respondent has also relied upon he following judgments:
In Trevor D'Lima & 2 Ors. Vs. M/s. Fortune Infrastructure & 4 Ors., Consumer Complaint No. 636/2015, decided on 08.09.2016, this Commission held as follows:-
"4. It would thus be seen that the minimum price of a residential flat in Bandra (West), as per the documentary evidence produced by the complainants, is Rs.65,000/- per sq. ft. of the carpet area. Computed at the said rate, the estimated current market value of the flat allotted by the OPs to the complainants comes to Rs.5,38,46,000/-. As per the quotations received by the complainants, the price of one car parking is Rs.20,00,000/-. If the aforesaid amount is added to the estimated price of the flat, the resultant price comes to Rs. 5,58,46,000/-. Since the OPs allotted the flat to the complainants at the aggregate price of Rs.1.93 crores, they are required to pay the difference between the current estimated price and the price on which the flat was allotted to them i.e. Rs. 3,65,46,000/- as compensation to the complainants. As noted earlier, the alleged cash payment of Rs.67 lacs has not been denied in the written version filed by the OPs. The complainants have placed on record a kachha copy which according to them is signed by one Hanif Hingora, who at the relevant time, was a partner of OP No.1. The total amount paid by them comes to Rs. 1.93 crores".
2. Kavit Ahuja vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd. & Ors., I (2016) CPJ 31 (NC), this Commission held as follows:-
"15. For the reasons stated herein above, I hold that the complainant is entitled to refund of the amount which she had deposited with the opposite parties, along with interest on that amount @ 18% per annum form the date on which the deposit was made till the date the said amount is refunded to her. This comprises 8% per annum on account of appreciation in the land value and increase in the cost of construction and 10% on account of loss of interest. However, since compensation is inbuilt in grant of interest @ 18% per annum, I am not inclined to grant any separate compensation to the complainant over and above the interest @ 18% per annum".
3. Kamlesh Aggarwal Vs. Narain Singh Dabbas & Anr., Civil Appeal Nos. 224-225 of 2015, decided on 10.2.2015, wherein the following has been held:
"(i) Consumer Protection Act, 1986 -- Section 27A -- Appeal -- Maintainability -- State Commission should have remanded the matter to District Forum after setting aside its order for taking penal action against respondents for non-compliance of order -- Order passed by National Commission in holding that appeals filed by appellant is not maintainable, is legal and valid as no second appeal is provided against order of State Commission in view of Section 27A(2) of Act.
(ii) Consumer Protection Act, 1986 -- Section 27A -- Constitution of India, 1950 -- Article 142 -- Civil Procedure Code, 1908 -- Order 1 Rule 32 -- Housing -- Registration of sale deed -- Non-compliance of order -- This Court in exercise of power under Article 142 of Constitution, order of State Commission is modified to the extent of remanding case to District Forum to execute decree and take penal action against respondents by following procedure under Section 262 r/w Chapter XX and Section 251 of Criminal Procedure Code in accordance with law -- Provisions of Order 21 Rule 32 of CPC are applicable in execution proceedings before District Forum for executing orders passed on complaint of appellant to get the fruits of same in absence of either express or implied exclusion of CPC to execute order of District Forum".
10. I have carefully considered the arguments advanced by both the parties and have examined the material on record. The first question to decide is whether the complaint was time barred. The first right to decide this aspect rests with the trial court which in the present case was the State Commission. Based on the judgments referred to by the respondent, the cause of action continued till either the possession was given or the money was refunded. The judgments relied upon by the appellant are not in connection with the Consumer Protection Act, 1986. The judgment of Udai Shankar Awasthi (supra) relates to a case under Criminal Law whereas the other case of Raja Ram Maize Products (supra) relates to labour law. Hence none of the cases cited by the learned counsel for the appellant are directly applicable in the present case. Thus, I would not like to interfere with the finding of the State Commission so far as it relates to maintainability of the complaint.
11. The undisputed facts are that the respondent/complainant had booked a residential unit with the opposite party/appellant, but the possession has not been provided to the complainant. The State Commission has ordered the possession of the unit booked or any other similar unit in the same area or in the alternative refund an amount of Rs.71,85,815/- which is based on the ready reckoner of the Government of the State. As the appellant has stated that he is not in a position to provide the flat, so he will have to refund the amount, however, he has objected to the amount ordered by the State Commission. In this regard both the parties have given their arguments and drawn attention towards certain judgments. The only question to be decided is whether the refund on the basis of ready reckoner is justified or it should be on the basis of some interest being payable on the deposited amount. The learned counsel for the respondent has referred to the judgment of this Commission in Trivor D' Lama (supra) wherein refund has been ordered on the basis of present market price in the peculiar circumstances of the case. The learned counsel has also referred to another judgment in Kevit Ahuja (supra) wherein refund has been ordered with 18% p.a. interest on the deposited amount.
12. In most of the cases of refund, this Commission is awarding interest on the deposited amount. In my view, if flat is not built, there should be no question of offering the market price or on the basis of ready reckoner as the money deposited has not grown to the market value of the flat. Earlier in some cases, in respect of pecuniary jurisdiction, sometimes, the present market value was taken to be the value of goods and services, but a larger Bench of this Commission in Consumer Case No.97 of 2016, Ambrish Kumar Shukla &Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016 (NC), has decided that the value of goods and services for deciding the pecuniary jurisdiction shall be the total consideration paid or promised to be paid at the time of purchase. Thus, the concept of market value for determining value of goods and services for deciding pecuniary jurisdiction has not been accepted by this Commission. In analogy, it seems reasonable to say that the concept of market value cannot be sustained in the cases for refund.
13. Based on the above considerations, I am of the view that the refund on the basis of ready reckoner is not justified in the present case, however, a reasonable rate of interest would be justified on the amount deposited. Looking at the long period for which the amount remained with the appellant and the current bank rates as well as the recent trend of orders of this Commission, I deem it appropriate to order for refund of the deposited amount alongwith interest @ 14% per annum from the date of deposit till actual refund.
14. On the basis of the above discussion, the appeal is partly allowed and the order of the State Commission is modified to the extent that in the alternative of refund, the opposite party would be liable to refund the deposited amount alongwith the interest @ 14% p.a. from the date of deposit till actual payment instead of Rs.71,85,815/- as ordered by the State Commission. The order of the State Commission as modified by this order shall be complied by the appellant/opposite party within a period of 8 weeks. The complainant shall be entitled to proceed against OP after 8 weeks for execution of the order.
...................... PREM NARAIN PRESIDING MEMBER