National Consumer Disputes Redressal
Dr. Dinesh vs Swastic Builders And Ors. on 14 August, 2001
ORDER
D.P. Wadhwa, President
1. This complaint filed on. 8.11.1995 pertains to a building contract and where deficiency in service is alleged against the parties numbering nine.
2. The land on which the building was to come up is owned by Shri Gujrathi Samaj, Nagpur, opposite party No. 2 which is a Public Charitable Trust. Gujrathi Samaj entered into an agreement with Swastik Builders, opposite party No. 1 for construction of the building on its land. Opposite party Nos. 4 to 7 are stated to be the partners of Swastic Builders at the relevant time. Subsequently complainant came to know that the project has been taken over by M/s. Lalgulab Promoters and Developers (P) Ltd., opposite party No. 3 of whose opposite party Nos. 8 and 9 are the Directors. They have also been thus impleaded. Under the agreement between Gujrathi Samaj and Swastic Builders right was given to the Swastic Builders to construct a multi-storeyed building on the land of Gujrathi Samaj with a right to sell the portion of the building to the purchasers. It was left to Swastic Builders to settle the terms and conditions of the sale of various portion of the multi-storeyed building with the willing purchasers and to appropriate itself the amount of consideration received under such agreements,
3. Complainant says that on 30.7.1987 he entered into an agreement with Swastic Builders to buy entire second floor of the proposed building for a consideration of Rs. 22,01,000/-. Various amenities as per the agreement, were to be provided by the Swastic Builders on second floor as complainant wanted to have his own hospital and nursing home being run at that place, he being a medical practitioner. At the time of the agreement complainant paid a sum of Rs. 3,01,000/- to Swastic Builders. Possession of the second floor was to be handed over to the complainant by Swastic Builders on or before 31.7.1988. By this date the registered sale deed was also to be got executed. It is stated that Swastic Builders agreed to pay interest (c) 18% per annum from 31.7.1988 to the complainant on the entire amount which Swastic Builders received from him. Agreement of sale dated 30.7.1987 was subject to the provisions of Maharashtra Ownership of Flats Act and Swastic Builders were duty bound to get the agreement of sale registered under that Act, so the allegations go. It is then alleged that Swastic Builders violated the provisions of the said Act. Complainant further says that Swastic Builders were to provide him certain documents for him to get loan from the Bank. This he said Swastic Builders did not do. Complainant wanted change in second floor and he for that purpose gave plan to Swastic Builders on 21.9.1987, This plan could be sanctioned by the Nagpur Municipal Corporation, where the land is situated, on 25.10.1988, which revised building plan was given to the complainant by Swastic Builders-on 17.2.1989. Complainant alleges that from the very beginning it was apparent that Swastic Builders were not serious and were not interested to hand over the possession of the premises to him within the stipulated period and the delay on tlw part of the Swastic Builders was wilful and purposeful. Complainant then says that he did not make any payment as per the agreement of sale as next instalment was payable only after supply of necessary documents relating to the second floor for him to obtain loan. Since Swastic Builders did not give him the documents, he could not obtain loan to make the payment, On the other hand, Swastic Builders gave him nn amount of Rs. 32,400/- less Rs. 3,600/- towards TDS, as interest on the amount of Ra. 3,01,000/. paid by him at the time of agreement of sale since. the construction could not be completed within the stipulated period and possession not handed over. After this complainant says he gave a sum of Rs. 3.00 lakhs by means to two cheques in the amounts of Rs. 1.00 lakh and Rs. 2.00 lakhs in March and June, 1989. This he said was given as a favour to expedite the construction work though he was not bound to make any payment.
4. Since as according to complainant Swastik Builders were committing breach of agreement of the sale, he on 13.4.1992 filed a civil suit in the Court of Civil Judge, Senior Division, Nagpur. He sought specific performance of the agreement of sale and also claimed damages. Swastik Guilders filed their written statement and it was at this time, complainant says ho came to know that Swastic Builders, a partnership firm, has been dissolved in the year 1991 and project was taken over by M/s. Lalgulab Promoters and Developers Pvt. Ltd., opposite party No. 3. Complainant then said that Swastic Builders filed an appeal in the High Court against the oider granting injunction in his favour which was dismissed by the High Court by order dated 29.9.1993. During the pendency of these proceedings copy of the plaint in the civil suit aforementioned had been filed and we may refer to the relief claimed therein as well as to the cause of action stated by the complainant therein :
"22, The claim of the plaintiff is as under :
(i) A decree for specific performance of the agreement dated 30.7.1987 in favour of the plaintiff and against defendant No. 1.
(ii) Decree for monetary claim quantified at Rs. 42,47,025/- as indicated above.
23. The plaintiff alternatively submits that should the plaintiff be not found entitled to the decree for specific performance, the plaintiff is entitled to refund of the amounts paid by the plaintiff to defendant No. 1 under agreement dated 30,7,1987 and the alternative claim is quantified as under.:
(i) Rs.,6,01,000/- being the amount by the
plaintiff to defendant No, 1 from
time to time,
(ii) Rs.3,63,705/- Interest at the rate of 18% per annum
calcuclated on the said amount from
the date of payment till the date of the suit,
(iii) Rs.39,37,500/- loss suffered by the plaintiff minus
Rs. 36,000/- vide Annex. 1 hereunto.
Rs.49,02,205/-
In addition, the plaintiff is also entitled to recover the losses suffered by the plaintiff - as calculated in Annexure-I.
24. The cause of action for the present suit arose on 30.7.1987 i.e. the date of execution of agreement of sale, the cause of action also arose on 30.9.1987 i.e. the date on which the defendant failed to supply necessary documents to the plaintiff as per agreement, it also arose on 31.7.1988 i.e. the date on which the defendants failed to handover the possession of suit premises to the plaintiff, it also arose on 15.3.1989 i.c, the date on which the plaintiff made further payment of Rs. 1 lac to the defendant towards consideration, it also arose on 6.3.1989 i.e. the date on which the defendant issued letter to the plaintiff and promises to handover possession of the suit premises and execute necessary sale deed etc. on 30.9.1989, it also arose on 1.6.1989 i.e. the date on which plaintiff made further payment of Rs. two lacs to the defendant towards construction, it also arose on 30.9.1989 i.e. the date on which the defendant failed to handover the possession of suit premises to the plaintiff and also failed to execute necessary sale deed in favour of the plaintiff, it also arose on 5.7.1990, 10.10.1990 and 25.10.1990 i.e. the dates on which plaintiff issued legal notice to the defendants and the defendants failed to comply with the same, and also...' in December, 1990 when the plaintiff first noticed that the signboard was removed by the defendant No. 1. The suit is, therefore, well within limitation. The plaintiff did not present the suit earlier as defendant No. 1 was at all times promising that it would perform the agreement dated 307,1987, The defendant Nos. 3 to 8 and also defendant No. 9 have been added in view of the Information given in the paras 3 and 4 of written statement of the defendant No, 1. They are liable for the reliefs being sought for by the plaintiff. Shri Manik Kaswa s/o Lakhand Kaswa is joined as defendant No. 7 because he is appearing for and on behalf of defendant No. 1 from the date of service of suit summons, without filing any power of attorney from any of the partners of defendant No. 1 and he has also not filed, any power of attorney for defendant No. 8."
5. Perhaps not satisfied in civil suit filed by him, the complainant filed present complaint before this Commission on 8.11.1995 claiming various reliefs. We may refer to para 7 regarding reliefs claimed by the complainant, para 8 as cause of action and para 10 prayer finally made in the complaint. These we quote :
"(7) It is respectfully submitted that the complainant is filing this complaint for claiming following reliefs against the opposite party-
(a) The opposite parties may kindly be directed to complete the construction over entire 2nd floor, of Satyam Apartment, situated upon plot No. 8, Wardha Road, Dhantoli, Nagpur and to place the possession thereof to the complainant and further to execute the sale-deed in favour of the complainant. The complainant is ready to pay balance amount on the date of sale-deed and handing over possession to complainant.
(b) The opposite parties except No. 2 may kindly be directed to pay the penal interest @ 18% per annum upon Rs. 6,01,000/- which was paid by the complainant to the opposite party. This amount comes to Rs. 6,88,200/-. The said claim of the complainant is on the basis of agreement made by the complainant with the opposite party No, 1 and after accepting the said term, the opposite party No. 1, has already paid penal interest till March, 1989 as per Annexure-10.
(c) Rs. 76,12,500/- as per Annexure-26 may kindly be directed the opposite parties except the opposite party No. 2 towards the loss suffered by the complainant due to not handing over the possession of the premises within stipulated period, That the said damage is genuine claim of the complainant, and the said damage is suffering by the complainant due to the defective and deficiency in service of the opposite parties and the complainant at present taken the rented premises for earning his livelihood and the complainant is paying the rent to the landlord for the rented premises. It is further submitted that the present area occupied by the complainant through rent is only 2000 sq. ft. This clearly indicates that the claim of the complainant towards the damages is very genuine.
(d) For harassment, mental tension and agony Rs. 5,00,000/- be awarded as a compensation in favour of the complainant and against the opposite parties.
(e) Cost of this complaint amount to Rs. 50,000/- be awarded against the opposite- parties except the opposite party No. 2.
(f) 18% future interest may kindly be awarded on the above mentioned amount from the date of filing this complnint till its full realisation.
(g) Any other relief deemed fit under the circumstances may kindly be granted to the complainant.
(8) That though cause of action for the present complaint arose on 30.7.1987, as per Annexure-1, the cause of action is continuing one as the opposite party has not cancelled the said agreement till today, The cause of action further arose on 6.3.1989, is per Annexure-10, when the opposite party asked the time till 30.9.1909 for completing all the formalities and construction. The cause of action is also continuing in the sense that the complainant hits filed the civil suit on 13.4.1992, and the same is still pending. However, the complainant states that the complainant is willing and ready to withdraw the said civil suit after disposal of the present complaint. Hence, this complaint is within limitation. The cause of action also arose in June, 1989 when, the opposite party accepted Rs. 2,00,000/- from the complainant towards to be sold premises.
(9) ..................
(10) That looking to pecuniary claim of the complaint, this Hon'ble Authority has a jurisdiction to try and decide the present complaint.
PRAYER : It is, therefore, most humbly prayed that-
" 1. it be declared that the opposite parties are engaged in unfair practices by not providing the proper services to the complainant.
2. the opposite parties may kindly be directed to complete the construction over entire 2nd floor, of Satyam Apartment, situated upon Plot No. 8, Wardha Road, Dhantoli, Nagpur and to place the possession thereof to the complainant and further to execute the sale-deed in favour of the complainant,
3. the opposite parties except No. 2 may kindly be directed to pay the penal interest @ 18% per annum upon Rs. 6,01,000/- which was to be paid by the complainant to the opposite party, this amount comes to Rs. 6,88,200/-,
4. the opposite parties except, opposite party No. 2 may kindly be directed to pay an amount of Rs. 76,22,500/-towards the loss suffered by the complainant.
5. for harassment, mental tension and agony Rs. 5,00,000/- be awarded as a compensation,
6. cost of this complaint amount to Rs, 50,000/- be awarded against the opposite parties except the opposite party No, 2
7. 18% further interest on the above mentioned amount may kindly be awarded from the date of filing this complaint till its full realisation,
8. any other relief deemed fit under the circumstances may kindly be granted to the complainant.
6. Two preliminary objections have been raised by all the opposite parties except the second, who owned land (and as would appear from the prayer no claim has been made against opposite party no. 2). These are, (i) that in view of pendency of civil suit which is based on the same cause of action and the complainant has prayed for specific performance of contract and also damages, this complainant would not lie; and (ii) the complaint is barred by limitation.
To understand these very preliminary objections we have set out above in detail the reliefs claimed and the cause of action both in the civil suit and the present complaint.
7. puring the course of arguments complainant who appeared in person stated that he will withdraw the civil suit filed by him.
However, earlier he had stated that he would withdraw that civil suit after decision of the present complaint. Whether the complainant withdraws the civil suit or not, it is his affair and decision on preliminary issues does not turn on that as the fact remains that he had knocked the doors of Civil Court whose jurisdiction is more comprehensive than ours, whereas we are limited by the provisions of the Consumer Protection Act.
8. The fact remains that when we examine the reliefs claimed in the civil suit and in the present complaint, these overlap and if some reliefs which are claimed in the complaint are not in the civil suit, that could be claimed in the civil suit as well. As a matter of fact, civil suit is more comprehensive. In effect, when a civil suit is pending on the same subject-matter, it is not for this Commission to entertain any complaint. If we see para 8 of the complaint which we have reproduced above, no arguments are needed to show that this complaint filed on 8.11.1995 is clearly barred by limitation. There appears to be no justification for the complainant to file this complaint when matter was already sub judice before a Civil Court. We would, therefore, dismiss this complaint with costs amounting to Rs. 10,000/-.
9. Before we conclude, we may add that it has become a practice for many complainants in the complaints to claim damages which has no co-relation with the loss suffered and these inflated amounts are stated with a hope that some amount would become payable. This is a practice which must be discouraged.