National Consumer Disputes Redressal
Shri Deepak Annasaheb Patil & Anr. vs Dr. Kaushali Vilas Rokade & Ors. on 7 February, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 734 OF 2014 (From order dated 18.10.2013 in First Appeal No. 56/2013, 57/2013, 168/2013 & 169/2013 of the State Consumer Disputes Redressal Commission, MAHARASHTRA, CIRCUIT BENCH, AURANGABAD) With IA/449/2014 1. Sh. Deepak Annasaheb Patil M/s. Sunil Farm Engineering Company Sunil Plaza, Tuljabhavani Stadium R/o Vikas Nagar, Murud, Taluka & Dist. Latur Osmanabad 413 501 (Maharashtra) 2. Smt. Jayashree Kishanrao Nade M/s. Sunil Farm Engineering Company R/o. Vikas Nagar, Murud, Taluka & Dist. Latur Petitioners Versus 1. Dr. Kaushali Vilas Rokade R/o Akshya Hospital, Sanja Road Osmanabad 431 501 (Maharashtra) 2. The Chairman, Tuljabhavani District Stadium Committee, Osmanabad & 3. The Collector, Collector Office Osmanabad 431 501 (Maharashtra) Respondents AND REVISION PETITION NO. 735 OF 2014 (From order dated 18.10.2013 in First Appeal No. 56/2013, 57/2013, 168/2013 & 169/2013 of the State Consumer Disputes Redressal Commission, MAHARASHTRA, CIRCUIT BENCH, AURANGABAD) WITH IA/449/2014 1. Sh. Deepak Annasaheb Patil M/s. Sunil Farm Engineering Company Sunil Plaza, Tuljabhavani Stadium R/o Vikas Nagar, Murud Taluka & Dist. Latur Osmanabad 413 501 (Maharashtra) 2. Smt. Jayashree Kishanrao Nade M/s. Sunil Farm Engineering Company R/o. Vikas Nagar, Murud Taluka & Dist. Latur Petitioners Versus 1. Dr. Adinath Sopan Rajguru R/o Akshya Hospital, Sanja Road Osmanabad 431 501 Maharashtra 2. The Chairman, Tuljabhavani District Stadium Committee, Osmanabad & 3. The Collector, Collector Office Osmanabad 431 501 Maharashtra Respondents BEFORE: HONBLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER HONBLE DR. S. M. KANTIKAR, MEMBER For the Petitioners in both cases : Mr. J.N. Singh, Advocate PRONOUNCED ON 7th FEBRUARY, 2014 O R D E R
JUSTICE J.M. MALIK
1. This order will decide two revision petitions which arise from the same judgment. The petitioners/OPs, Sh. Deepak Annasaheb Patil & Smt. Jayashree Kishanrao Nade are the partners of M/s. Sunil Farm Engineering Company which transacts the business of construction and development of property. The Chairman, Tuljabhavani District Stadium Committee, Osmanabad and its Collector, Collector Office, Osmanabad, OP3, undertook the project of construction of shopping complex at the Stadium of Osmanabad. On 22.05.2008, OPs 1 & 2 agreed to develop the property of OP3 by construction of shopping complex and the said constructors & developers company was authorized to transfer the shops on lease basis for the period of 30 years in favour of occupiers. The necessary permission of local authorities was obtained.
2. OP 1 & 2 published advertisement in the newspaper inviting the prospective purchasers. Both the complainants, Dr. Kaushali Vilas Rokade and Dr. Adinath Sopan Rajguru applied for purchase of shops bearing Nos.30& 29, measuring 177.00 sq.ft, for a consideration of Rs.6,31,000/-, each, respectively. The payments were made by both the complainants to the OPs 1 & 2, in the sum of Rs.3,33,000/- each. According to the complainants, they had also made payment of Rs.8,000/- and Rs.7,000/-, respectively. The complainants were always ready and willing to pay OPs 1 & 2 to pay the balance amount.
3. However, there was another development in respect of the construction of the shops. OPs 1 & 2, without seeking the consent of the complainants and without serving any notice, made changes in the sanction plan, making additional construction in open space in front of the shops. The complainants were asked to pay extra amount for extra construction at the same rate. They insisted that the shops be handed over to them, as per the agreement.
4. The District Forum, vide its order dated 10.01.2013, directed the OPs 1 to 3 to transfer the shop Nos. 30 & 29, measuring 177.00 sq.ft. each, for a total consideration of Rs.6,31,000/- and out of it, the complainants were directed to pay the residue amount in the sum of Rs.2,98,000/- and Rs.2,91,000/, respectively. OPs 1 to 3 were also directed to return the unencashed cheques to the complainants and OPs 1 & 2 were directed to pay Rs.5,000/- each as costs, to the complainants.
5. The State Commission modified the order and discharged OP3, as it had no role to play in handing over the possession of shops to the complainants. It directed OPs 1 & 2 to handover the possession of shop Nos. 30 & 29, to the complainants, respectively, by accepting the balance amount of Rs.2,90,000/- and Rs.2,91,000/-, respectively. They were also directed to return the cheques and pay costs of litigation of appeals in the sum of Rs.5,000/-, each, to the complainants.
6. We have heard the counsel for the petitioners, at the time of admission of these cases. Our attention was invited towards the agreement. The relevant clause of the agreement, germane to this controversy is :-
3) Developer has reserved rights to change plans. Elevations other minor change as per the direction of land owner Shree Tuljabhawani Dist. Stadium Committee, Osmanabad.
7. Counsel for the petitioners admitted at bar that area of shop of the complainants was more than double of the total area and the OPs have charged enhanced rates for additional construction. The counsel for the petitioners has invited our attention towards the minutes of the meeting held between OP 1 & 2 on the one side and OP3 on the other side. The complainants were not party to the same. The relevant para of the minutes of the meeting is reproduced, as under :-
5. The developer has ready to give the rent for using the additional commercial area regarding that, they have give the rent for additional commercial area.
5.The developer has demanded the various changes out of that, the committee has granted the some changes therefore, the commercial using of carpet area has enhanced and about that enhanced carpet area the developer has binding to give the rent as per the contract and the said change is granted on the condition that, if the developer has constructed the enhance commercial using carpet area same is constructed to residential using carpet area and the said changes has demanded by the developers therefore, no any additional changes is granted or without any change in the financial bid in the contract, the said decision is not accepted by the developers then they should construct without any change of the original map.
8. The argument advanced by the counsel for the petitioners is a strawman intended to divert us from the real issue. The agreement, clearly, specifically and unequivocally mentions that they can make minor changes. It is apparent that they have made major changes without the knowledge of the complainants. The OPs committed an egregious mistake in not bringing this fact to the notice of the complainants. The record reveals that the petitioners have made additional construction of 351 sq.ft. in front of each shop and the total construction of each shop is 528 sq.ft. The sale of the shop during the pendency of the case is not permissible. As per their new demand, they are asking the complainants to pay more than the double amount. They should have taken the complainants consent. It is not known whether the complainants are ready to accept the large constructed piece of land or they are in a position to pay the said amount or whether the large area of the amount will solve their purpose. This reminds us of the following incident. The Judge attempted to play the LEWIS CARROL, whose pronouncement : I will be the Judge, I will be the Jury, said Cunning Old Fury, I will try the whole case and sentence you to death had place only in fictional fantasy.
9. No other argument was advanced before us. It is clear that the petitioners have taken the complainants for a ride.
Petitioners are deficient in service and guilty of unfair trade practice. There is not even a scintilla of doubt in our mind. Both the revision petitions are hereby dismissed with costs of Rs.10,000/- in each case, payable by the petitioners to the complainants, as per Section 26 of the Consumer Protection Act. The said amount be paid to the complainants, in their names, through demand draft, personally, within 90 days from the date of receipt of this order, otherwise, it will carry interest @ 10% p.a., till realization.
10. The petitioners/OPs 1 & 2 are further directed to execute the order of the State Commission, within 90 days, from the date of receipt of this order, else, they will have to pay penalty, in the sum of Rs.1,000/- per day, to the complainants, till the compliance of the said order. The period of lease is only 30 years and what is the use of entering into an agreement, which is going to lapse, on each and every day. Copies of this order be sent to both the parties.
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(J. M. MALIK, J) PRESIDING MEMBER ....
(DR.
S. M. KANTIKAR) MEMBER dd /