State Consumer Disputes Redressal Commission
Marcus Dias & Another vs Gloria Miranda & Another on 10 April, 2015
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
FA No.15/15
1. Mr. Marcus Dias,
Proprietor M/s. Melissa Developers,
Major of age, Businessman,
Having office at House No.218,
Opposite Naval Store Depot,
Alto Dabolim, Goa
2. Mrs. Antoniette Dias,
Major of age, businesswoman,
Having office at House No. 218,
Opposite Naval Store Depot,
Alto Dabolim, Goa .........Appellants
V/s.
1. Mr. Glorio Miranda,
Major of age,
Resident of House No.72/A, Falvaddo,
Arossim, P.O. Cansaulim,
Mormugao, Goa
2. Mrs. Antonetta Xavier e Miranda,
Major of age,
Resident of House No.72/A, Falvaddo,
Arossim, P.O. Cansaulim,
Mormugao, Goa .......Respondents
Appellants/OPs are represented by Adv. Shri. A. Suresh Rao
Respondents/ Complainants are represented by Adv. Shri
J. J. V. Pinheiro
Coram: Shri. Justice N.A. Britto, President
Smt. Vidhya R. Gurav, Member
Dated: 10/04/2015
ORDER
2 [Per Justice Shri. N. A. Britto, President] The Opposite Parties in C. C. No. 69/2013 have filed this appeal, and, it is directed against final order dated 27/01/2015 of the South Goa District Forum at Margao.
2. Some facts are required to be stated to dispose off this appeal, and for that, the parties to this appeal are being referred to in the names as they appear in the cause title of the complaint.
3. The OP No.1 is a developer and OP No. 2 is his wife and was a confirming party to the agreement dated 25/03/2011. By virtue of the said agreement dated 25/03/2011, styled as an agreement for construction-cum-sale, the OPs agreed to sell to the Complainant a flat identified as flat no. FF-1, admeasuring 78 sq.mts., in their project to be named as `Melissa Green Valley' for a sum of Rs.16 lacs. As per the said agreement, the said flat was to be handed over to the Complainants within 24 months from the date of the said agreement and the Complainants were to pay to the OPs the said sum of Rs.16 lacs as per Schedule III to the said agreement. A sum of Rs.2.4 lacs was to be paid, and, was infact paid, by the Complainants at the time of execution of the said agreement by cheque, which payment was acknowledged by the OPs in the agreement itself, though a receipt for the same was issued on 5/04/2011. The second and third instalments of Rs.4.8 lacs and 3.2 lacs were to be paid on the completion of plinth level and the completion of the first slab, respectively, and the last instalment of Rs.32,000/- was to be paid at the time of handing over the possession. The parties also stipulated that the time of payment of instalments would be absolute essence of the agreement and in case the Complainants failed to make payments of an instalment to the OPs as stipulated in Schedule III for any reason whatsoever, the OPs would be entitled to send a notice of 7 days to the Complainants for 3 payment of such dues and if the Complainants failed to make the payments within such 7 days (notice period) from the date of receipt of the notice for any reason whatsoever, the agreement would be automatically terminated. The parties also stipulated that the OPs at their entire discretion would have the option without prejudice to their other rights to suspend the construction work, until the instalment which had fallen in arrears was paid together with interest thereon for the delayed period at 18% compounded monthly with further compensation as may be decided by the OPs and consequently the period of completion would stand extended accordingly.
4. The Complainants received a notice dated 23/05/2013 from the OPs acknowledging that the Complainants had paid to them the instalments as per Schedule III to the said agreement. The Complainants were informed that the flat was ready for possession and were called upon to pay the 7th (last) instalment of Rs.32,000/- and service tax of Rs.989/- within a period of 7 days which payment the Complainants did, as reflected by receipt dated 11/06/2013.
5. The Complainants say that when Complainant No. 2 Mrs. Miranda went to make the said payment of 7th and final instalment of Rs. 32,000/- she was told that an additional amount of Rs.44,300/- was required to be paid for additional work carried out to the flat and so also towards the electric and water connection and maintenance charges and Complainant No. 2 Mrs. Miranda readily agreed to pay the said amount on the understanding that the OPs would show the flat for final inspection as the extra work was incomplete when the previous site inspection was carried out and as she had not carried more than Rs.32,000/- of the final instalment, 4 the Complainant No.2 Mrs. Miranda, offered to pay Rs. 44,300/- by cheque which the OPs refused to accept for reasons best known to them and when asked for breakup of Rs.44,300/- the Complainant No.2 was given an unsigned piece of paper wherein the breakup was shown. (i.e. Rs. 14,300/- (extra works) + Rs. 10,000/- + Rs. 10,000/- + Rs. 10,000/- vide annexure D)
6. The Complainants say that Complainant No.2 went to the office of the OPs on 14/06/2013 to pay the said amount of Rs.44,300/- and the meeting started on a fairly cordial note, but according to the Complainants, OP No.2 had a hidden agenda in that the OP No.2 had personal fight/dispute with the sister in law of Complainant No.2 who had also booked a flat in the said complex and OP No.2 insisted that Complainant No.2 should arrange to bring her sister-in-law to the office of the OPs for settlement of the said dispute but Complainant No.2 refused to oblige OP No.2, as Complainant No. 2 had nothing to do with her sister-in-law as also with the personal dispute that OP No.2 had with her sister-in-law and, therefore, OP No.2 then became furious and threatened Complainant No.2 that she would not be given possession of the said flat unless and until Complainant No.2 brought her sister-in- law to their office for a meeting with OP No.2 and this issue generated heated arguments between the two and as a result the main purpose of the visit got drowned in the heated arguments and OP No.1 remained a silent spectator in the said discussions, and as a result the Complainant No.2 returned empty handed.
7. Then there was an exchange of letters between both the parties.
58. The OPs wrote a letter to the Complainants dated 12/08/2013 while the Complainants wrote a letter dated 13/08/2013 to the OPs, through their advocate.
9. The OPs by their letter dated 12/08/2013 again acknowledged that the Complainants had paid to them all the instalments as per Schedule III of the agreement. The Complainants were informed that the flat was ready for possession. At the same time the Complainants were told that the Complainants had to pay maintenance amount "as on page no.20, interest amount as on page no.12, extra work as well as expenses towards obtaining water and electricity connection as on page 25, which has still not been cleared". The Complainants were required to remit the said payments immediately to take possession of the flat and to treat the said letter as notice of demand. The complainant No. 2 was told earlier on 6/8/13, when she went to the office of OP that the amount payable on interest was Rs. 65,948/- and in all Rs. 1,12,748/- were payable (as per annexure E). These payments have also been clarified subsequently by OPs in their written version i.e. Rs.65,948/- towards delayed payment of interest as per clause 2(a) of the agreement, besides maintenance charges of Rs.10,000/-, electricity and water connection charges of Rs.20,000/- and costs of additional works of Rs.16,800/- (which went up from Rs.14,300/- )
10. The Complainants by their letter dated 13/08/2013 informed the OPs that they had paid total amount of Rs.16 lacs and had never defaulted in payment of a single instalment and that the OPs cannot demand interest retrospectively for imaginary delayed payments after having received the 7th and final instalment of Rs.32,000/- and since they had paid the 7th and final instalment of Rs.32,000/- they would be claiming damages of Rs. 1,000/- per day for delayed 6 period commencing from 11/06/2013 until peaceful possession was given to them.
11. The Complainants sent another letter dated 22/08/2013 to the OPs with reference to their letter dated 12/08/2013 and stated that interest was being claimed by the OPs as an afterthought and without any arithmetical details and not because of delay caused in the payment of instalments but because of personal vendetta with the Complainants for refusing to be dragged into their personal feud with the sister in law of Complainant No.2.
12. The OPs through their advocate wrote a letter dated 11/09/2013 stating that the OPs would be forced to recalculate the actual final payment due and payable by the Complainants to the OPs which would be strictly as per the terms of the agreement and that on failure to remit the payments, the OPs would be forced to terminate and cancel the agreements as per the terms appearing therein.
13. The consumer complaint then came to be filed on 8/10/2003.
14. The same has been contested by the OPs who filed their own affidavits and that one Devidas Shivdas Mardolkar who claims to have taken over the physical possession of the flat in question from 23/09/2013.
15. The Lr. District Forum has come to the conclusion that the OPs had no grievance about the delayed payments until they accepted the last payments of Rs. 32,000/-. The Lr. District Forum has also come to the conclusion that the Complainants had produced receipts that they had paid the total amount of the cost of the flat to the OPs. The Lr. District Forum also concluded that although the OPs claimed of sending various reminders to the 7 Complainants the OPs had failed to produce copies of such letters on record to show that the Complainants had defaulted in payments of the agreed instalments. As regards the alleged possession of the disputed flat being taken over by the said Devidas Shivdas Mardolkar, the Lr. District Forum observed that the OPs had not produced any registered document on record and that the oral statement of the said Mardolkar could not be accepted as gospel truth. The Lr. District Forum also came to the conclusion that the last instalment of Rs.32,000/- paid on 11/06/2013 was accepted by the OPs without any protest and therefore they were convinced that the Complainants had regularly paid all the instalments as agreed upon and as such there was deficiency in service on the part of the OPs in not handing over the possession of the flat to the Complainants as agreed upon and further concluded that the OPs had not approached the Forum with clean hands.
16. We have heard the lr. advocate of the parties and perused the record.
17. Shri A. Suresh Rao, the lr. advocate of the OPs would submit that the complaint raises complicated questions of fact and law and as such the Complainants ought to have been directed to approach the Civil Court. Shri S. Rao has placed reliance on Synco Industries vs. State Bank of Bikaner, AIR 2000 SC 568
18. We are not impressed with the submission made. It is to be noted that the case of Synco Industries (supra), although a 3 Judge decision of the Apex court, stood on its own facts. It was a complaint filed against the Bank for damages of Rs.15 crores and additional sum of Rs. 60 lacs claiming that the Bank was not entitled to reduce the loan facilities; and considering the nature of the claim 8 and the prayer for damages it was held that the complaint would require a detailed evidence to be led to prove the claim as well as the damages and expenses and therefore it was held that it was not an appropriate case to be heard and disposed off in summary jurisdiction. This decision of the National Commission was upheld by Hon'ble Supreme Court.
19. On facts of this case, we find that there are neither complicated questions of fact or of law which cannot be decided in summary jurisdiction. In this context, we may refer to another 3 Judge Bench decision of the Apex Court in Dr. J. J. Merchant, 2002 (6) SCC 635 wherein the Apex Court has held that:
"The decisive test is not the complicated nature of questions of fact and law arising for decision. The anvil on which entertainability of complaint by a forum under the Act is to be determined is whether the questions, though complicated they may be, are capable of being determined by summary enquiry i.e. by doing away with the need of a detailed and complicated method of recording evidence. It has to be remembered that the fora under the Act at every level are headed by experienced persons. The National Commission is headed by a person who is or has been a Judge of the Supreme Court. The State Commission is headed by a person who is or has been a Judge of a High Court. Each District Forum is headed by a person who is, or has been, or is qualified to be a District Judge. We do not think that mere complication either of fats or of law can be a ground for the denial of hearing by a forum under the Act."
20. Both the above decisions came again for consideration before a 2 Judge Bench of the Apex court in CCI Chambers Co-operative Housing Society Ltd., 2003 (7) SCC 233 and the 2 Judge Bench held as follows:
9"It cannot be denied that fora at the national level, the State level and at the district level have been constituted under the Act with the avowed object of providing summary and speedy remedy in conformity with the principles of natural justice, taking care of such grievances as are amenable to the jurisdiction of the fora established under the Act. These fora have been established and conferred with the jurisdiction in addition to the conventional courts. The principal object sought to be achieved by establishing such fora is to relieve the conventional courts of their burden which is ever-increasing with the mounting arrears and whereat the disposal is delayed because of the technicalities. Merely because recording of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any forum under the Act to the person aggrieved."
21. The next submission of Shri Suresh Rao, the lr. advocate of the OPs, is that the agreement was terminated by letter dated 12/08/2013 (copy at page 93) as the Complainants were chronic defaulters in remitting the payments of instalments and, lr. advocate submits, that the flat is now in possession of said Devidas Shivdas Mardolkar and since the OPs are not in possession of the same, the only relief which the Complainants could be given is to return the price paid by the Complainants to the OPs.
22. We are unable to accept this submission as well. Letter dated 12/08/2013 is only a notice of demand and by no stretch of imagination, it can be construed as a letter terminating the contract. Even letter dated 11/09/2013 (copy at page 101) cannot be construed as a letter terminating the contract. In this letter dated 11/9/13 the OPs stated that they would be recalculating the actual final payment due and payable by the Complainants to the OPs as 10 on the effective date very soon which would be strictly as per the terms of the agreement and in case of failure to remit the payments within the stipulated time, the OPs would be forced to terminate the agreement. This is the tenor of the letter. It is nobody's case that the OPs have calculated and communicated to the Complainants any payments to be made by them in as much as not even time was set out to pay the amounts earlier indicated to the Complainants to be paid by them failure of which would lead to the termination or cancellation of the agreement. In our view, both the letters cannot be considered to be letters terminating contract between the parties, in as much as any such termination would be illegal, unless it was shown that the Complainants had infact committed default of any of the terms of the said agreement. The version that the flat in question is not in possession of the OPs or that it is in possession of the said Devidas is a version which cannot be believed. The said Devidas appears to be a got up witness and has filed a false affidavit to support the case of the OPs. Neither the OPs nor the said Devidas say for how much the flat has been sold to him. All that the said Devidas says is that he has taken over the physical possession of the flat. We asked Shri Suresh Rao, lr. advocate of the OPs, whether there was any document executed between the parties evidencing the said transaction in favour of the said Devidas, and, Shri. Rao, the lr. adv. has fairly conceded that the OPs have not produced any document in support of the said transaction. Admittedly, the Complainants and the OPs entered into an agreement dated 25/03/2011 which is duly registered. No prudent purchaser would have parted a sum of more than Rs. 16 lacs without a receipt or an agreement for sale or a sale deed. In the absence of any such documents being produced, only oral statements of either of the OPs or for that matter of the said Devidas cannot be accepted in support 11 of the plea that the OPs are not in possession of the suit flat. All that the said Devidas has stated is that a sum of Rs. 1.5 lacs is due and payable as on 15/04/14 without even stating as to for what sum he has purchased the said flat from the OPs. Moreover, after the conclusion of arguments, Complainant No.2 has filed an application with certain photographs to show that the flat in question is closed and unoccupied. The photographs are stated to have been taken on 31/03/15. In our view, the story of the OPs that the OPs have parted with possession of the suit flat in favour of the said Devidas is a story which was rightly not accepted by Lr. District Forum.
23. Next, Shri Suresh Rao, the lr. advocate of the OPs, pointing out to section 14 of the Consumer Protection Act, 1986 submits that the only relief which the Complainants can be given is to return the price paid by the Complainants. This submission is made with particular reference to section 14(1) (c) of the Consumer Protection Act, 1986 without pointing out section 14(1)(e) of the same Act which also provides that the OPs can be asked to remove the defects in goods or deficiencies in services in question. The expression "deficiency" has been defined in section 2(1)(g) of the Act to mean any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service; At this stage it may be noted that the OPs by their letter dated 14/01/15, just prior to passing of impugned order, chose to remit to the Complainants by letter dated 14/01/15 a sum of Rs.15,75,000/- which was not accepted by the Complainants and was returned back to the OPs by the Complainant's letter dated 17/01/2015. In our view, if the OPs 12 have not performed their part of the contract, it would amount to deficiency in service which can be rectified or made good in terms of Section 14(1) (e) of the Act. In other words the OPs can be compelled to perform their part of the contract under Section 14(1)
(e) of the Act.
24. Another submission made by Shri. Rao, relying on Kishanlal Mohta vs. Ram K. Bihari, IV 1993(1) CPR 696 is that no direction for specific performance of the contract can be issued by Redressal Forum under C.P. Act. With respect, we are unable to concur with such a view of the Lr. Rajasthan State Commission. C.P. Act only gives to a consumer an additional remedy which is simple, summary, more speedy and less expensive, and, whatever reliefs can be granted to a consumer by a Civil Court, the same can also be granted by a Forum established under C.P. Act. We may incidentally note that the Apex Court has held in Olympus Superstructures Pvt. Ltd., 1999(5) SCC 651 that even an arbitrator can grant specific performance of a contract relating to immovable property under an award and there is no reason why such a relief of specific performance cannot be granted by a Forum under the Act.
25. Were the Complainants defaulters in payment of instalments? There is no dispute that the amount of Rs. 44,300/- was tendered by the Complainants by cheque but was not accepted by the OPs, first on 11/6/13 and then by cash on 14/6/13. The dispute appears to be only regarding the payment of Rs. 65,948/- by way of interest on delayed payments which nobody knows how it has been calculated.
26. The Complainant No.2 was asked, by virtue of question no.5, as follows:
13"5. I put to you that the second and the third instalments of Rs.8,00,000/- was once again delayed for which repeated oral as well as written reminders was given to you and your husband including letter dated 18.04.11"?
27. The answer given by Complainant No.2 is as follows:
"5. Referring to the Question No.5, I say the allegation is a blatant lie and malicious in nature. I say that the said Agreement was entered into with the OPs on the definite understanding that OPs would arrange the Bank's Loan and that OPs would submit the necessary documents including the title deeds of the project to the Bank for getting the loan sanctioned at the earliest. I say that, accordingly, the second and the third installments were to be paid by raising a Bank Housing Loan of Rs. 8,00,000.00 (Rupees eight lakhs only) from Corporation Bank, Velsao Branch and the remaining FIVE installments, including the FIRST by ourselves. I say that the delay was solely due to the non-submission of relevant title documents and non-furnishing of the clarifications, by the OPs, to the queries raised by the Bank's Legal Adviser/Advocate in respect of the "Title Deeds" of the project property. I further say that, if the delay was on account of us, why did not the OPs threaten to terminate the said Agreement at that time or at least recover "late payment"
interest on these two installments? Nay, it was because the OPs were solely responsible for the delay in the sanction of the said loan. It is, further, submitted that, it is, indeed, preposterous that the very same OPs are now attempting to place the blame at our door. I say that the "so called" letter/ reminder dated 18/04/2011 was neither hand delivered or 14 sent by post to me. I further reiterate that except for the delay in respect of the SECOND and THIRD installments, as explained above, there was no delay at all in the payments of the other FIVE installments including the FIRST. It is just a bogey of falsehoods raised by the OPs to justify their unjustifiable action, by attempting to take undue advantage of the backdated notices."
"5.1 The said loan was eventually sanctioned on 14/07/2011 and the Second and the Third installments of Rs.4.80 lakhs (Rupees four lakhs eighty thousand only) and of Rs.3.20 lakhs (Rupees three lakhs twenty thousand only) were paid by the Bank directly to the OPs on 22/07/2011 and on 8/9/2011 as per the Bank's procedure and as and when demanded by the OPs. It will thus be observed that the delay was solely due to the lethargic attitude of the OPs in responding to the queries of the Bank's advocate."
28. We are satisfied with the explanation given by the Complainants and hold that there was no delay on the part of the Complainants to pay any of the instalments. The OPs have not produced letter dated 18/04/2011 and adverse inference needs to be drawn against them. If there was delay on the part of the Complainants in paying any of the instalments there would have been demand notices issued to the Complainants as contemplated by Clause 2(a) of the agreement. OPs have not produced copies of any such notices. In case the OPs were entitled to Rs. 65,948/- on account of interest because of delayed payment of instalments there would have been a demand notice demanding the same from the Complainant or any event mention about the same would have been made in letter dated 23/5/13 when the complainants were called 15 upon to pay the 7th and last instalment. On the contrary, this letter contains an admission that the Complainants have paid instalments as per Schedule III. Demand for Rs. 65,948/- was made by the OPs clearly by way of afterthought only after 6/8/13, after the issue of settlement of the dispute with the sister-in-law of Complainant No. 2 was raised by OP No. 2 on 14/6/13. In our view, there was no breach of any of the terms of the agreement on part of the Complainants and termination of the agreement, if at all there has been, is illegal and not binding of the Complainants. We have already concluded that there is no letter produced by the OPs terminating the agreement.
29. Although we find there is no merit in this appeal, we find that there is scope to modify the impugned order, as submitted by Shri Suresh Rao the lr. advocate of the OPs, to do complete justice to the parties, on facts of the case. The Lr. District Forum does seem to have taken note of prayer (a) of the complaint nor of prayer (b) of the same. Shri. Pinheiro, the lr. adv. would submit that the compensation for delayed delivery of possession is awarded on the lower side and seeks enhancement of the same, though they have filed no appeal against the impugned order. We proceed to modify the impugned order as follows:
"The OPs are directed to deliver the suit flat to the Complainants under a registered sale deed and to pay to the Complainants a sum of Rs. 5,000/- per month for delayed possession from 25/03/2013 until the possession is handed over to the Complainants. Complainants to be paid cost of Rs.25,000/- as ordered by the Lr. District Forum. The possession is to be delivered under sale deed and compensation paid, within 30 days, failing which the 16 compensation to be paid shall carry interest @ 9% until it is paid."
30. But for the modification of the impugned order, this appeal is dismissed with costs of Rs.10,000/- to be paid by the OPs to the Complainants.
[Smt. Vidhya R. Gurav] [Justice Shri N. A. Britto]
Member President
/lm