State Consumer Disputes Redressal Commission
Madhukar Wamanrao Jadhav vs Sachin Madhukarrao Muley on 14 May, 2024
1 CC/62/2017
CC No : 62/2017
Filed on : 18.10.2017
Decided on: 14.05.2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MUMBAI, BENCH AT AURANGABAD
Madhukar Wamanrao Jadhav Complainant
Age:51yrs Occu.: Service (Adv. Rahul G. Joshi)
R/O. C/o Sarjerao Kundalik Sabhadinde
Anubhuti Appartment, Flat No.13,
Near Gandhinagar,
Bansilal Nagar, Aurangabad
V/s
1. Sachin Madhukarrao Muley Opponent No.1
Age: Major Occu. Business (Adv. U.N. Shete)
R/o Sai Vihar, Infront of Sant Jhon
High School, Kanchanwadi,
Paithan Road, Aurangabad
Through its Shrihari Developers,
Aurangabad.
2. Sambhaji Ramkrishna Atkare Opponent No.2
Age: Major Occu. Business (Ex-parte)
R/o Plot No.13, Radha Krishna,
Parijat Nagar, N-4 Cidco,
Aurangabad.
3. Shri Hari Associates Private Ltd, Opponent No.3
Through (Adv. U.N. Shete)
Sachin Madhukarro Mule,
Age: Major Occu. Business
R/o Sai Vihar, Infront of Sant Jhon
2 CC/62/2017
High School, Kanchanwadi,
Paithan Road, Aurangabad.
JUDGMENT
( Delivered on 14. 05. 2024) Per Milind S. Sonawane, Presiding Member :
The present case is filed by the complainant under Section 12 of the Consumer Protection Act, 1986 ( the ' C.P. Act' for short ).
2. Before we takeover to the pleadings of the parties, it is necessary in this case to refer to its background.
3. The complainant has booked a Twin Bunglow No.8(disputed Bunglow) in the project Sai Vrindavan of the opponents. The consideration of the same was agreed to be Rs.10,50,000/- by way registered agreement to sale dated 04.08.2006.Till Nov.2006 the complainant claimed to have paid sum of Rs.13,80,000/-. It means Rs.3,30,000/- in excess of the agreed consideration. The construction of the bunglow was agreed to be completed by 30/12/2006 and possession was to be given on receipt of entire consideration amount. It was also agreed that, on receipt of the total consideration sale deed will be executed and registered. However, when the same was not given, the complainant filed Consumer Case No.372/2013 before the learned District Consumer Disputes Redressal Commission, Aurangabad (the 'District Commission' for short). against opponent no.1 and 2. In the said case complainant claimed the possession of the bunglow and compensation of Rs.19,10,736/- for the rent and electricity bills he has paid, EMI paid to bank, and for mental and physical harassment.
3 CC/62/2017
4. Opponent no. 1 and 2 appeared before the District Commission and resisted the claim of the complainant by filing their written version. It was contended that, the complainant has not paid the entire amount of consideration. Sum of Rs.90,000/- are still to be paid by him. Therefore, the possession of the bunglow has not been given to him. Besides this, it was also contended that, since the agreement to sale was executed on 04.08.2006 and the case is filed on 20.12.2013, before the District Commission was not within the limitation. Further, since the complainant has claimed the possession of bunglow worth Rs.10,50,000/- and addition to that a compensation of Rs.19,10736/- the case is beyond the pecuniary jurisdiction of Rs.20 Lakhs (then pecuniary limit) of the District Commission.
5. The opponents moved an application before the District Commission praying that, the case filed by the complainant has the valuation more than its pecuniary jurisdiction of Rs.20 lakhs. That application gets dismissed by District Commission on 28/07/2014. The opponents challenged that order before this commission by way of Revision Petition No.52/2014, which has been dismissed by our learned predecessor bench on 05/11/2014. The opponents challenged that order before Hon'ble High Court, Bench at Aurangabad by way of Writ Petition No.8789/2015. It is dismissed on 27/09/2016.
6. The District Commission while deciding the delay condonation application of the complainant held by its order dated 11/02/2015 that, since the possession of the bunglow is not given there is a continuous cause of action for the complainant to file the case. The opponents challenged that order before this commission by filing Revision Petition No. 4 CC/62/2017 24/2015, which was dismissed by our learned predecessor bench on 30/06/2015.
7. Thereafter, on passing all the hurdles in the way, the matter was continued before the District Commission and it was directed by way of judgment and order dated 19/10/2016 to the opponents to execute jointly and severally a registered sale deed of disputed bunglow on completing its construction in favour of the complainant and the complainant to pay the balance amount of Rs.70,000/-. The opponents further directed to pay to the complainant compensation of Rs.9,80,000/-.
8. The opponents challenged the above judgment by way of First Appeal No.1016/2016 before this commission. Our learned predecessor bench decided it on 20/09/2017. It was held that, the case filed by complainant before the District Commission was not within its pecuniary jurisdiction and therefore the judgment in CC No. 372/2013 was set aside and the District Commission was directed to return the complaint to the complainant to be filed before the appropriate commission along with the observation that the time spent in the litigation so far would be condoned.
9. It is therefore, the complainant filed present case before this commission along with the delay condonation application M.A. No. 500/2017. Our learned predecessor bench condoned the delay and admitted the case. It also issued the notice to the opponents. Thereafter, the complainant moved an amendment application, claiming it to be consequential one, praying that the amount of compensation, which was previously claimed before the District Commission, has been increased from Rs.19,10,736/- to 36,00,979/- as the complainant still has to reside in the rented premises and the 5 CC/62/2017 interest on the amount due, went pilling on during the pendency of the case before the District Commission and Appeal before this commission. Further, since it is revealed later to the complainant that, the project developer is Shri Hari Associates Private Ltd, it's name is required to be added in the array of the opponents, as opponent no.3 it needs to be consequentially added. Certain other amendments also have been sought by the complainant, such as addition of the prayer clauses D to G. Our learned predecessor bench allowed those amendments.
10. Now turning to the pleadings of the parties. It is the case of the complainant that, he had booked bunglow no.8 in the project 'Sai Vrindavan' of the opponents. The agreement to sale was executed and registered on 04/08/2006. The consideration agreed was Rs.10,50,000/-. He has paid Rs.13,80,000/- till nov.2006. The possession of the bunglow along with all the amenities was to be given on the payment of entire amount of the consideration. But even after that date, when the possession was not given he approached and requested the opponents to complete the construction and handover the possession. But till today opponents have not done so. This is a gross deficiency on the part of the opponents. He has to stay in a rented premises and pays the electricity bills. He had taken a loan from ICICI Bank and has to pay EMI of the same. He has paid excess amount to the opponents in 2006, the interest thereon is due and payable to him from the opponents. He has thus prayed that, the opponents may kindly be directed -
a. to complete the construction along with amenities and execute and register the sale deed of the bunglow. b. to obtain the completion certificate of the project Sai Vrindaan and that of bunlow no.8 c. to return the 4 cheques 6 CC/62/2017 The complainant further prayed that, the opponents may kindly be directed to pay the compensation for the items mentioned in the following table :-
Sr Amount For What
No (In Rs)
1. 3,30,000/- Excess amount taken than the agreed consideration.
2. 6,53,400/- Interest on excess amount at 18%p.a. as per
agreement to sale.
3. 7,62,400/-(rent) +1,50,000/- Rent paid by him form 15/09/2010 to 31/01/2018
(electricity bills)
4. 6,58,379/- Losses on account interest required to pay the bank
5. 10,00,000/- Mental, physical and economic harassment
6. 47,000/- Amount paid for executing registered sale deed
Total Rs.36,00,979/-
11. The Complainant has filed copy of agreement to sale, money receipts, statement of loan account, rent agreements, electricity bills and receipts, evidence affidavit, evidence affidavit of Dushant Dusane of Civil Consultancy, his Survey Report, photographs ( both inner and outer side) of the disputed bunglow to support his complaint.
12. The opponent No.1 and 3 appeared in the matter and resisted the case of the complainant by filing their written version. Opponent no.2 though duly served not given the appearance. Hence, matter proceeded ex-parte against him. It is contented that, as per the agreement to sale, the balance amount of consideration was to be paid on or before 30/12/2006 and therefore when it is not so paid the limitation period started from that date. The complaint is filed on 18.10.2017 even if the litigation period is to be excluded the complaint is not filed within the limitation. The complainant has not mentioned in the complaint as to when the cause of action arose. There is no cause of action to file the complaint. The agreement to sale has been executed by opponent no.3, which is private company limited and the complainant has not made all of its directors/partners party to the proceedings.
7 CC/62/2017 There is a bar of non joinder of necessary parties to it. The case involves the question as to genuineness of the payment receipts as those are false and fabricated. The same is a complex question, which cannot be tried by this commission in its summary jurisdiction. The complainant has not performed his part of the agreement to sell and neither has shown his readiness and willingness to perform the same. He is not entitle to any relief. The complainant has paid sum of Rs.2,80,000/- on the date of the agreement to sale and thereafter paid Rs.6,80,000/- through the bank loan. He has not paid sum of Rs.90,000/- out of the total consideration amount. He has never approached the opponents with that amount. There is no deficiency in service committed by the opponents. The complainant has not suffered any mental, physical and economic harassment. On the contrary, because he dragged the opponents and their property in to the litigation, they infact have suffered the same. As such, according to the opponents the case being filed with malafied intent, it may kindly be dismissed with cost.
13. Opponent No,1 and 3 so as to support their defense filed evidence affidavit of opponent no.1, copy of the development agreement, declaration u/s 2A of the Maharashtra Apartment Ownership Act, 1970 Judgment dated 20/01/2020 given in RP No.533/2019 by the Hon'ble National Commission.
14. The points for determination along with our findings thereon are as under.
Points Findings
1. Whether the complaint is filed
within the limitation? ... Yes
2. Whether the case is without
8 CC/62/2017
any cause of action? ... No
3. Whether the case can be tried
by this commission in its
summary jurisdiction? ... Yes
4. Whether there is bar of non-
joinder of the necessary parties
to the case? ... No
5. Whether the opponent has
committed deficiency in service to
the complainant? ... Yes
6. What Order? ... As per final Order.
REASONS
15. Before we start our reasoning we must refer to the objections of Adv. Joshi for the complainant that, since long there has been order against opponent no.1 and 3 stating that, if they do not argue the matter on last occasion, it would be decided without their written arguments. However, though this Commission passed such orders, but either of three Member of this Commission have been on deputation since last three months for a week. As such there was no effective sitting on many occasions when this matter was on board. Further we wish that the matter must be decided on merits after hearing both parties properly. Hence, we reject that submission made on behalf of the complainant.
As to Point No.1 and 2 :
16. As these two points are correlated, we are taking them together for adjudication. The ld. Adv.Shete for the opponent no.1 and 3 submitted that, the matter is not filed within the limitation period of two years as required by the provisions of S.24A of the C.P.Act. According to him the agreement to sale took place on 04.08.2006 and the last date for paying the entire amount of the consideration was 30.12.2006. Thus, the 9 CC/62/2017 limitation period of two years therefrom has expired on 30.12.2008. This Commission vide its judgment and order dated 07.10.2017 has condoned the time consumed for the previous litigation in C.C.No.372/2013. However, still the case is not within the limitation. On the other hand ld. Adv. Joshi placing the reliance on the judgment of Hon'ble Supreme Court passed in Civil Appeal NO. 4000/2019 Sumrudhi Co- operative Housing Society Ltd,. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd,. dated 11.01.2022 submitted that, since the possession of the disputed bunglow is still not given by the opponents there is a continuous cause of action to the case of the complainant.
17. We agree with the above submission of Adv. Joshi for the complainant. Hon'ble Supreme Court in the above referred judgment held that, a continuing wrong occurs when a party continuously breaches and obligation imposed by law or agreement and the continuing wrong is when there is failure to obtain occupancy certificate by the builder/promoter. Thus, there is a settled position of law that, when the possession is not given by the builder in all such cases there is a continuous cause of action to the flat purchaser. As such, we answer point no.1 in affirmative.
18. The another point that has been raised by opponent no.1 and 3 is that, there is no cause of action for the complainant to file the case. Now we held in an answer to point no.1 that, there is a continuous cause of action, it is obviously turning out that there is a well founded cause of action to the complainant, because when he booked the disputed bunglow for the consideration and even after allegedly paid more than entire amount of consideration, and still not given possession of the disputed bunglow, it is futile to discuss that, whether 10 CC/62/2017 there is any cause of action for the complainant to file the case or not. Thus, we answer point no.2 in negative.
As to Point No.3 :
19. Opponent no.1 and 3 contended and their Adv. Shete argued that, the receipts those have been produced by the complainant to establish that, he has paid an amount in excess of the agreed consideration of Rs.10,50,000/-. All those receipts are false and fabricated as can be seen from their serial number and from the fact that, those have been issued from January 2006, which is much prior to the agreement to sale, dated 04.08.2006. As such according to him the case involves complex issues to be tried so as to determine whether the receipts are false and fabricated or not. However, on perusal of those receipts we do not found any substance in the said allegation. The agreement to sale dated 04.08.2006 clearly states that, prior to that date the complainant has paid Rs.2,80,000/- only and tallying the amount given by those receipts it can be said that, the allegation that has been made is vague and does not require much complex inquiry in the matter. Therefore, we are of the view that, the same could be tried in the summary jurisdiction of this Commission. Hence, we answer point No.3 in affirmative.
As to Point No.4 :
20. The another technical issue that has been raised by opponent no.1 and 3 in their pleading and their Adv. Shete in his argument that, there is a bar of the non joinder of the necessary parties to the case. He referred us to agreement to sale dated 04.08.2006, pointing out that the same has been entered into the complainant and opponent No.1,2 and 3, whereas the development agreement which is entered into Shri Hari Developers through its partners as opponent No.1 and 2 and two other partners namely Milind Shriram Patil and Gopal
11 CC/62/2017 Pralhad Agrawal. These other two partners are not made a party to the present proceedings. Therefore, according to him there is a bar of non joinder of the necessary parties to the case. Adv.Joshi for the complainant while countering this issue submitted that, the agreement to sale has been entered into by the complainant and present opponents. It is not only immaterial but totally irrelevant for the complainant who is the original land owner for the purpose of dealing with the opponents.
21. We agree to the above submissions of Adv.Joshi for the complainant. The main reason for that is that, the land is purchased, by the partnership firm namely 'Shri Hari Developers' and given it to be developed by 'Shri Hari Associate Pvt.Ltd', the complainant has made a transation with Shri Hari Associates Pvt. Ltd,. and not with a partnership firm of identical name. It is not the record that, Shri Hari Associate Private Ltd,. has other directors also. As per the provisions of law a Private Limited Company can be sued in its name through any of the director. Here the company is sued along with two directors. We do not think that, there is any bar of non joinder of the necessary parties to the present case. Hence, we answer point No.4 in negative.
As to Point No.5 :
22. So far as the issue of whether the opponent has committed deficiency in service to the complainant is concerned, it is the matter of record that, there has been agreement to sale between the parties as to the disputed twin banglow on 04.08.2006. The amount of consideration was Rs.10,50,000/-. The complainant has produced the receipts which shows that, he has paid Rs.3,47,000/- vide receipts no.102,104,999,203, to the opponents till 01.11.2006 and thereafter, by way of cheques Rs.6,80,000/- by 30.11.2016 12 CC/62/2017 (bank statement shows the same). The complainant has also claimed that, he has paid Rs.20,000/- on 22.01.2006 and Rs.1,00,000/- on 01.08.2006 in cash and the opponents have not issued any receipt of the same. As such, according to the complainant till 30.11.2006 he paid Rs.11,47,000/- to the opponents against the consideration of Rs.10,50,000/- . The complainant also claimed that the agreement to sale states that, Rs.2,80,000/- were given on that date. However, the figure that has been mentioned in the agreement to sale clearly referes to the payment made as mentioned above (as those were paid prior to the agreement to sale) and not a separate amount. Therefore, according to us, the complainant has paid Rs.11,47,000./- against the agreed consideration of Rs.10,50,000/- which means Rs.97,000/- in excess of the agreed sum. The opponents, though have taken the stand that, the receipts are fabricated and false and they have not received any amount is cash, but there is no satisfactory proof of the same. On the contrary considering the common course in the dealings of the sale and purchase of the house and flat, the preposition that has been put forward by the complainant appears to be more probable and acceptable in the preponderance of the probabilities, which is the standard of proof for the consumer cases.
23. One more aspect which needs to be mentioned here that, though the opponents builders have raised so many technical issues as well as casted doubts on the version of the complainant, but their conduct in the dealing with the complainant is highly contrary to the law. The sale and transfer of the ownership of the flat and the banglow in the State of Maharashtra in the relevant time is governed by Maharashtra Ownership Flats (Regulation of the Promotion of Construction, sale, Management and transfer) Act 1963 (MOF 13 CC/62/2017 Act). The relevant provisions of the said Act needs to be mentioned which are as follows.
A) S.3 of the Act imposes liability on the promoter builder to disclose all the necessary particulars of the building plans, specifications of construction, amenities, sanctions of the local authorities.
B) S.4 provides that, the promoter builder is under the obligation to enter into agreement to sale and register it with Sub Registrar before accepting the advance and it shall not be more than 20 % of the sale price. C) Such agreement to sale referred to above must be in a 'prescribed format' as laid down under S.4 (1A) of the Act.
D) S.5 of the Act cast a duty on the promoter to maintain separate account of sum taken and apply the same for the purpose for which it is given.
E) S.7 of the Act provides that, the plans and specifications disclosed to the purchaser cannot be later on altered and the defects in the construction if noticed within a period of three years it shall be rectified.
F) S.11 puts the promoter under a duty to convey the title of the property to the purchaser.
G) S.13 of the Act which is the most important provision lays down that, if the promoter without reasonable excuse contravenes the provisions of S.3,4,5,10 and 11 shall on conviction be punished with imprisonment for a term which may extent to three years or a fine or with both.
24. In the present case opponents have taken more than the agreed consideration amount but not executed the agreement to sale in the manner and in the form as contemplated and mandated by the above mentioned provisions of the MOF Act.
14 CC/62/2017 The agreement to sale dated 04.08.2006 is the gross violation of S.4 of the said Act. The agreement to sale nowhere mentions that, what are the plan and specification of the twin banglow, even today they are not before us. According to us, taking a sum of Rs. 97,000/- more than the agreed sum and not giving the possession till today is not only deficiency in service but unfair trade practice also. The opponents appears to have no respect and fear of the law and thereby molested the rights of the genuine home buyer. All these facts constitutes together and demonstrate in volume that, there has been great deficiency in service on the part of the opponents. Hence we answer point No.5 in affirmative.
As to Point No.6 :
25. In view of our findings as to point No.1 in affirmative and 2 in negative it is clear that, the case is within limitation and the complainant has cause of action against the opponents.
Our finding as to point No.3 in affirmative shows that, the case does not involve any such complex issue, which cannot be tried under the summary jurisdiction of this Commission. Finding as to point No.4 makes it clear that, there is no bar of non joinder of necessary parties to the case. The finding as to point No.5 in affirmative shows that, opponents not only gave deficient service to the complainant but also adopted unfair trade practice by not following the imperative provisions of the MOF Act. The complainant has made several prayers. However, all of them are not justified. In the facts and circumstances of the case discussed above the complainant is entitled to a direction to the opponents that, they should jointly or severally complete the construction along with the amenities and execute registered sale deed of the disputed banglow in faour of the complainant within a period of one month from the date of this order. The complainant is also 15 CC/62/2017 entitled to a completion certificate of the said banglow and the project 'Sai Vrindavan'. The complainant has prayed that, the opponents may kindly be directed to pay excess amount (which he claimed to have paid to the opponents) of Rs.3,30,000/- with a interest rate of 18 % p.a. from the date of last payment till realization. However, we do not agree to the above prayer mainly because though the complainant as per our findings recorded above has paid Rs.97,000/- in excess of the agreed consideration but agreement to sale dated 04.08.2006 also stipulates that, the expenses of the sale deed and of obtaining the electricity meter and the service tax are to be bourne by the complainant. Therefore, we are of the view that, the excess sum of Rs.97,000/- may be directed to the opponents to apply for the same. The complainant further sought Rs.7,62,400/- for the rent paid by him from 15.09.2010 to 31.01.2018 and Rs.1,50,000/- for the electricity bills of the rented premises paid by him during that period. He has produced on record all the rent agreements for the above referred period and also the electricity bills of the same. Adv.Shete for opponent No.1and3 objected to these agreements and submitted that, complainant is the Government servant and he gets the HRA for the same. He has not suffered any loss. The above argument is not acceptable, because even if the disputed banglow should have been given in the possession of the complainant, still he would have received the HRA. It is only because of the deficient service the complainant is forced to stay in the rented premises. Therefore, he is entitled to get that sum of Rs. 7,62,400/- along with interest @ 9 % p.a. from Feb.2018 to till the realization. So far as electricity charges which the complainant paid for the rented premises are concerned, those cannot be directed to be paid because, had he been in the disputed banglow the same should have been required to be paid by himself. So that prayer of the complainant cannot be granted.
16 CC/62/2017 The complainant has claimed that, he has suffered the loss on account of interest, he has paid to the bank on loan account because of deficient service are Rs.6,58,379/- and he is entitled to get that sum from the opponents. However, we are not inclined to accept that, he has actually suffered that much of the loss for the want of convincing calculations. Therefore, we are of the view that, those can be taken into account while granting the compensation for mental, physical and economical harassment. In the facts and circumstances of the case discussed above, we are of the view that, granting the complainant compensation of Rs.5,00,000/- on all these counts from the opponents will meet the ends of the justice. Further, in the facts and circumstances of the case it will be just to direct the opponents to pay jointly and severally to the complainant sum of Rs.25,000/- as the cost of the proceedings. Hence, in an answer to point no.6 we pass the following order.
ORDER
1. The opponents are directed jointly and severally complete the construction of the disputed banglow along with the amenities and execute registered sale deed of the same in favour of the complainant within a period of one month from the date of this order.
2. The opponents are directed jointly and severally to obtain the completion certificate of the said banglow and that of Sai Vrindavan Project and hand it over to the complainant within a period of 03 months from the date of this order.
3. The opponents are directed to apply the excess sum of Rs.97,000/- paid by the opponents for the execution of sale deed and obtaining the electricity connection and the service tax to complete the transaction.
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4. The opponents are directed to pay jointly and severally sum of Rs.7,62,400/- to the complainant along with interest @ 9% p.a. from 01 Feb. 2018 till the realization.
5. The opponents are directed to pay jointly and severally sum of Rs.5,00,000/- to the complainant for economic loss (which includes losses on account of interest paid in loan account) and mental and physical harassment.
6. The opponents are directed to pay jointly and severally to the complainant sum of Rs.25,000/- as a cost of the proceedings.
7. The copy of this judgment and order be furnished to the parties free of cost.
N.C.Kumbre Dr.N.A.Chavhan M.S.Sonawane
Member Member Presiding Member
UNK