State Consumer Disputes Redressal Commission
Atul Prravinchandra Shah vs Shri Pradip Ramchnadra Wadke on 16 April, 2009
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI First Appeal no.432/2008 Date of Filing: 11/04/2007 Consumer Complaint .No.41/2001 District Consumer Forum: Raigad Date of Order: 16/04/2009 Atul Prravinchandra Shah, Appellant Propreitor, M/s. Pratik Constructions, (Org.Opp.Party) R/at-Vasant Wadi, Chavdar Tale, Taluka Mahad, District Raigad. V/S 1. Shri Pradip Ramchnadra Wadke, Respondents R/at- Shramsafalya Building, Flat Nos. 1 & 2, Vasturi Naka, Mahad, Tal- Mahad, Dist- Raigad. 2. Shri Narpatsingh Omkasingh Thakur, R/at - Shramsafalya Building, Flat Nos.3, Vasturi Naka, Mahad, Tal- Mahad, Dist- Raigad. 3. Shri Anand Jagannath Sarvankar, Shramsafalya Building, Flat Nos. 4, Vasturi Naka, Mahad, Tal- Mahad, Dist- Raigad. 4. Shri Shridhar Gajanan Vichare, Shramsafalya Building, Flat Nos.6, Vasturi Naka, Mahad, Tal- Mahad, Dist- Raigad. 5. Shri Bipin chandrkant Shinde, Shramsafalya Building, Flat Nos.9, Vasturi Naka, Mahad, Tal- Mahad, Dist- Raigad. 6. Mrs. Anuradha Sunil Dhasti, Shramsafalya Building, Flat Nos.7, Vasturi Naka, Mahad, Tal- Mahad, Dist- Raigad. 7. Shri Ratnakumar Dattatraya Mali, 825/3, Laxmi Arcade, Flat Nos. 1 & 2, Mahad Dist- Raigad. 8. Shri Ranjit Ratnakumar Mali, Laxmi Arcase, Flat Nos. 1 &2, Mahad, Dist- Raigad. 9. Shri Vishwas Tulsidas Patil, Laxmi Arcase, flat No.3, Mahad, Dist- Raigad. 10. Shri Sunil Ravindra Sood, Laxmi Arcase, flat No.4, Mahad, Dist- Raigad. 11. Shri Pradip Annd Harvande, Laxmi Arcase, Flat No.5, Mahad, Dist- Raigad. 12. Shri Nandkumar Murlidhar Nerkar, Laxmi Arcase, flat No.6, Mahad, Dist- Raigad. 13. Shri Nitin Anand Jaitpal, Laxmi Arcase, flat No.8, Mahad, Dist- Raigad. 14. Shri Vivek Janardan Mawade, Laxmi Arcase, flat No.9, Mahad, Dist- Raigad. Corum : Justice Mr.B.B.Vagyani, Hon'ble President Mr.P.N.Kashalkar, Honble Judicial Member.
Mr.S.R.Khanzode, Honble Judicial Member.
Present:
Adv.Shri S.B.Prabhawalkar for the appellant for appellant.
Adv.Shri U.B.Wavikar for respondents.
:- ORDER :-
Per Justice Mr.B.B.Vagyani, Honble President:
We heard Adv.Shri S.B.Prabhawalkar for the appellant and Adv.Shri U.B.Wavikar for the respondents.
Ld.Adv.Shri Prabhawalkar takes us through the important documents placed on record and pointed out the observations of the District Forum. He vehemently argued that direction to complete the incomplete work without payment of remaining part of consideration is improper. On the other hand Ld.Adv.Shri Wavikar strongly supported the order passed by District Forum. The District Forum by clause no.2 of the operative part of the order directed the builder to rectify the defects, which are highlighted by the Court Commissioner in his report. In the alternative the District Forum directed the builder to pay Rs.2,35,195/- to the complainants for rectification of defects. This figure was worked out by the Court Commissioner and therefore, District Forum directed the builder either to rectify the defects on his own or to pay Rs.2,35,195/- to the flat purchasers for getting defects rectified.
The builder in para 54 of the written statement has given the unpaid part of consideration by each of the complainants. The builder is therefore claimed the unpaid part of consideration. Ld.Av.Prabhawalkar pointing out the outstanding figures, which are ranging from Rs. 8,000 to Rs.60,000/-expressed his displeasure with regard to observations of District Forum. The District Forum has considered the aspect of unpaid part of consideration. However, it has directed the builder to approach the appropriate authority to recover the unpaid part of consideration.
We are of the view that the District Forum should have examined the correctness of the claim of the builder with regard to unpaid part of consideration. If something is found due from the flat purchasers to the builder, the District Forum ought to have directed the flat purchasers to pay the unpaid part of consideration to the builder and at the same time the builder should have been directed to rectify the defects. It would be improper to direct the builder to complete the remaining part of construction work by spending himself, when according to him substantial amount is yet to be recovered from the flat purchasers. We do not therefore concur with the said direction of District Forum.
The limitation issue has no meaning. On scrutiny of papers, it is found that flats were delivered to the purchasers in the year 2003 and consumer complaint is filed on 02/04/2004. Consumer complaint is therefore is well within limitation.
Ld.Adv.Prabhawalkar argued that there is intrinsic defect in the consumer complaint itself and therefore, consumer complaint is liable to be dismissed on the account of failure of complainant to obtain permission of District Forum as per Section 12(1)( c) of Consumer Protection Act, 1986. We are inclined to reproduce the Section 12(1)( c) of Consumer Protection Act, 1986 as under:
one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of all, consumers so interested Ld.Adv.Wavikar brought to our notice that the consumer complaint is signed by all the complainants and therefore, permission of District Forum is not necessary because the persons having common interest can very well file one consumer complaint. Section 12 (1) ( c) is infact cannot be pressed into service because complainant on record have not filed the consumer complaint on behalf of other similarly situated consumers. All the persons having grievance against the builder have jointly filed consumer complaint themselves and redress their common grievance. The complaint is signed by all of them. We are of the view that there is no defect as such in the consumer complaint. In the result, we pass the following order:-
:-ORDER-:
1. Appeal is partly allowed.
2. The executing court while executing the order examine the rival contentions of the parties with regard to unpaid payment of consideration. If something is found due to the builder, the said amount is to be deducted from the figure of Rs.2,35,195/-.
Remaining amount is liable to be paid to the flat purchasers by the builder.
3. Similarly, we also want to add clarification in the direction with regard to rectification of defects. The builder is supposed to rectify the defects, which are highlighted in the report of Court Commissioner subject to unpaid balance of consideration by the flat purchasers, which is to be worked out by executing court.
4. The direction in clause no.2 (b) and (c) stands confirmed.
5. No order as to costs.
5. Copies of the order herein be furnished to the parties.
(S.R.Khanzode) (P.N.Kashalkar) (B.B.Vagyani) Judicial Member Judicial Member President Nbh