State Consumer Disputes Redressal Commission
Shri Vishwas Bhase vs M/S.Akar Enterprises on 28 October, 2010
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASTHRA STATE, MUMBAI Date of filing : 21/02/2002 CONSUMER COMPLAINT NOS. 61 & 62 OF 2002 Date of order : 28/10/2010 Shri Vishwas Bhase R/at Kanakaditya Sahayog Mandir Marg, Ghantali, Thane (W), Thane 400 601. Complainant (C-61/2002) Mrs. Smita Vishwas Bhase R/at Kanakaditya Sahayog Mandir Marg, Ghantali, Thane (W), Thane 400 601. Complainant (C-62/2002) V/s. 1. M/s.Akar Enterprises At Sharad Kunj, Dr.Moos Road, Talaopali, Thane 400 602. 2. Shari Sameer Thakkar Managing Partner of O.P.No.1 R/at Sharad Kunj, Dr.Moos Road, Talaopali, Thane (W) 400 602. Opposite Parties Quorum: Mr.S.R.Khanzode, Honble Presiding Judicial Member
Mr.Dhanraj Khamatkar, Honble Member Present : Complainant in person.
Mr.Pravin Gokhale, Advocate for the O.P.
-: ORAL ORDER :-
Per Mr.S.R.Khanzode, Honble Presiding Judicial Member These two consumer complaints are disposed of by common order since they have involved identical facts and common question of law.
Complainant-Mr.Vishwas Bhase in consumer complaint No.61/2002 is a husband of Mrs.Smita Bhase, who is complainant in consumer complaint No.62/2002. Both of them agreed to purchase by separate agreement dated 18/02/1995 and respectively shop No.2 and shop No.1 in a building known as Vatika situated on plot of land No.15, CTS No.89, Panchpakhadi, Thane and which was developed and constructed by O.P. (hereinafter referred to as developer). As per above referred agreement, complainant-Mr.Vishwas Bhase agreed to purchase shop having area 320 sq.ft. built-up and open terrace for total consideration of `3,20,000/-. Likewise, shop No.1 having built-up area of 400 sq.ft. which is inclusive of common utility of balconies, etc. situated on the ground floor was agreed to be purchased by complainant-Mrs.Smita Bhase for a total consideration of `4 Lakhs. Possession of the respective shops were delivered to the complainant-Mr.Vishwas Bhase and Mrs.Smita Bhase on 11/03/2000. Thereafter, it is alleged by the complainants from both the complaints that shop No.2 of complainant-Mr.Vishawas Bhase is less in area of 145 sq.ft. while shop No.1 of complainant-Mrs.Smita Bhase is less in area of 80.80 sq.ft. These consumer complaints are principally filed to get compensation for less area given by alleging deficiency in service on the part of developer in that respect.
In consumer complaint No.61/2002 complainant-Mr.Vishawas Bhase claimed compensation of `13,29,500/-. Particulars of which are as under :-
1.
Compensation for less area given by the `5,14,500/-
Opposite Party.
2. Loss of earning `5,40,000/-
3. Excess sale price appropriated `1,45,000/-
by the Opposite Party
4. Loss on account of excess stamp ` 26,000/-
duty/registration charges
5. Cost of shutter cover `4,000/-
6. Compensation for mental pain and `1,00,000/-
suffering caused to the complainant --------------
Total : `13,29,500/- ======== In
consumer complaint No.62/2002 complainant-Mrs.Smita Bhase claimed total compensation of `15,05,979/-.
Particulars of which are as under :-
1.
Compensation for less area given by the `5,60,000/-
Opposite Party.
2. Loss of earning `6,48,000/-
3. Excess sale price appropriated `1,60,000/-
by the Opposite Party
4. Loss on account of excess stamp ` 30,000/-
duty/registration charges
5. Cost of shutter cover `4,000/-
6. Refund of MSEB bill paid by the complainant `3,979/-
7. Compensation for mental pain and `1,00,000/-
suffering caused to the complainant --------------
Total : `15,05,979/- ========
The developer in both the consumer complaints denied the claim by filing his written versions. According to the developer, they have not supplied any less area as alleged and the area of each shop of the complainant is inclusive of the amenities.
The respective agreements dated 18/02/1995 (though the complainant mentioned the year 1994, it is not disputed that the agreements are of the year 1995) are not in dispute. Their copies are on record. Referring to the agreement in respect of complainant-Mr.Vishwas Bhase, description of the property purchased is given in Para 5 and more particularly in Second Schedule of the said agreement. In Para 5, built-up area of shop No.2 is mentioned as 320 sq.ft. and it is clarified in bracket that said area is inclusive of common amenities like balconies, etc. This description is little in variance with the Second Schedule wherein built-up area of 320 sq.ft. is mentioned and it is further mentioned that property agreed to be sold is the shop on the ground floor bearing No.1 and open terraces in the building and area of shop is mentioned as 320 sq.ft. built-up area as described in the Red colour in the Sketch (Annexure-A). Annexure-A mentions the actual built-up area of the shop only.
In consumer complaint No.62/2002 likewise, agreement dated 18/02/1995 in Para 5 of the said agreement mentioned shop No.1 having built-up area of 400 sq.ft. and in the bracket mentioned as it is inclusive of common amenities like balconies, etc. and in the Second Schedule of said agreement is left blank. The Map annexed shows that shop No.1 as per built-up area only.
Contention of the developer that said area is inclusive of common utilities and common utilities are shown as inclusive of balconies. In fact on the ground floor shop, there is no question of any balconies. Sketch annexed with the agreement only shows and demarked that shop in relation to the built-up area, no amenities or common utilities are to be included in it. So, the area mentioned of shop Nos.1 & 2 in the respective complaints is to be taken as area of shop which is agreed to be sold. As referred earlier, complainant-Mr.Vishwas Bhase alleged that he had received less area of 145 sq.ft. and complainant-Mrs.Smita Bhase alleged that she had received less area of 80.80 sq.ft. This particular statement as to the calculation of the area is corroborated by the documents of the Thane Municipal Corporation from the Assessment Register and in absence of any other evidence adduced on behalf of developer, there is no reason to not to accept the same.
For the deficit area, certainly, there is a deficiency in service on the part of the developer and complainant-Mr.Vishwas Bhase and Mrs.Smita Bhase are entitled to compensation therefor.
Loss in business cannot be a ground for consumer complaint. There is also no evidence adduced on behalf of either of the complainant to substantiate their claim for compensation on account of loss of business. Further, complainants have not given any evidence or in other words, failed to substantiate their claim of compensation for less area given on the basis of alleged market price. In their complaints only, they have calculated proportionate value of the shop for less area. Complainant-Mr.Vishwas Bhase calculated and claimed sum of `1,45,000/- while complainant-Mrs.Smita Bhase claimed sum of `1,60,000/-.
Considering the price agreed, we find to award compensation to that extent would be proper along with compensation given for additional stamp duty required to be paid and pro-rata or proportionate registration charges. As far as complainant-Mr.Vishwas Bhase is concerned, said compensation is claim at `25,000/- + `1,450/-, total `26,450/-. In addition to it, though no special circumstances are brought on record, considering that the complainant had to undergo certain anxiety and had to bear stress to take a dispute to the Consumer Fora, we find, it would be just and proper to award compensation of `25,000/- for mental agony. Thus, total compensation which can be awarded in case of complainant-Mr.Vishawas Bhase is `1,96,450/-. We hold accordingly.
As far as complainant-Mrs.Smita Bhase is concerned, for the reasons stated above, we find that `1,60,000/-
towards compensation for less area and `30,000/- consolidating to claim for excess of stamp duty and registration charges required to be paid to be just and proper and like her husband Mr.Vishwas Bhase, she should be further entitled to get compensation of `25,000/- for mental agony and thus, she would be entitled to consolidate compensation of `2,15,000/-. We hold accordingly.
When the complaints were firstly heard on 07/10/2010, none remain present on behalf of developer. However, on the date of pronouncement of judgement, Counsel Mr.Pravin Gokhale appearing for the developer was present and filed written notes of arguments. They were duly taken into consideration. He had also amongst the others raised a point of limitation. But, it could be seen that possession of shop was delivered on 11/03/2000 while consumer complaint was filed on 21/02/2002 i.e. within period of two years. Therefore, both the complaints are filed within limitation.
Developer also tried to annex documents as per list along with written notes of arguments which inter alia includes the agreement, which is not in dispute and xerox copy of sanctioned plan, which is not a certified copy and it is also not tendered in evidence as per provisions of Section 13(4) of the Consumer Protection Act, 1986.
Agreements specifically mentioned the built-up area agreed to be sold and which we discussed earlier. There is no question of carpet area, but built-up. Therefore, in the circumstances and background of the present case, we need not to investigate into delay in delivery of possession. Referring to the letter written by the complainant-Mr.Vishwas Bhase and Mrs.Smita Bhase to the developer on 13/03/2000 soon after taking possession of the respective shops which inter alia includes the schedule of the payment made and it could be seen that only on 09/03/2000 they have made the final balance payment and immediately, thereafter, possession was delivered to them. Their case is not for deficiency in service on account of delay in handing over the possession as such. In the instant case, considering the payment made, such case of deficiency in service on delayed possession would not survive.
For the reasons stated above, we hold accordingly and partly allowing these consumer complaints pass the following order :-
-: ORDER IN CONSUMER COMPLAINT No.61/2002 :-
1.
Consumer complaint No.61/2002 is partly allowed.
2. O.Ps. jointly and severally do pay compensation of `1,96,450/- to the complainant-Mr.Vishwas Bhase. This compensation amount be paid within 45 days from the date of receipt of this order and failing which the developer/O.Ps. shall be further liable to pay interest @ 9% p.a. over the said amount from the date of filing of consumer complaint i.e. 21/02/2002 till its realization.
3. Copies of the order be furnished to the parties.
-: ORDER IN CONSUMER COMPLAINT No.62/2002 :-
1.
Consumer complaint No.62/2002 is partly allowed.
2. O.Ps. jointly and severally do pay compensation of `2,15,000/- to the complainant-Mrs.Smita Vishwas Bhase. This compensation amount be paid within 45 days from the date of receipt of this order and failing which the developer/O.Ps. shall be further liable to pay interest @ 9% p.a. over the said amount from the date of filing of consumer complaint i.e. 21/02/2002 till its realization.
3. Copies of the order be furnished to the parties.
(Dhanraj Khamatkar) (S.R. Khanzode) Member Presiding Judicial Member dd.