State Consumer Disputes Redressal Commission
Shri. Chhaganlal K. Oswal vs Mrs. Manik A. Phule And Ors. on 16 March, 2017
A/01/986 & A/01/1065 1/9
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Appeal No.A/01/986
(Arisen out of order dated 20/02/2001 in Complaint No.680 of 1994 of District
Pune)
Shri Nilesh Anant Phule,
R/at Shreeprasad Society,
Parvati,
Pune 411 009. .......Appellant(s)
Versus
Mr.Chhaganlal Khangarji Oswal,
R/at 38/6, Erandwane, Dharati Society,
Flat No.2, Galli No.10,
Prabhat Road, Pune 411 004. .......Respondent(s)
Appeal No.A/01/1065
(Arisen out of order dated 20/02/2001 in Complaint No.680 of 1994 of District
Pune)
Mr.Chhaganlal Khangarji Oswal,
R/at 38/6, Erandwane, Dharati Society,
Flat No.2, Galli No.10,
Prabhat Road, Pune 411 004. .......Appellant(s)
Versus
1. Mrs. Manik Anant Phule
R/at Shri Prasad Society,
Parvati,
Pune 411 009.
2. Shri Nilesh Anant Phule
R/at Shri Prasad Society,
Parvati,
Pune 411 009. .......Respondent(s)
A/01/986 & A/01/1065 2/9
BEFORE: Hon'ble Mr. Justice A.P. Bhangale, President
Hon'ble Mr. D.R. Shirasao, Judicial Member
PRESENT: Mr.Manoj Pimpalgaonkar, Advocate for the appellant
in A/01/986 & for Respondnet in A/01/1065.
Mr.Chhaganlal Oswal - respondent in A/01/986 and
Appellant in A/01/1065.
COMMON ORDER
Per Hon'ble Mr.D.R. Shirasao - Judicial Member:
1. Being aggrieved by judgment and award passed by the Ld.District Consumer Disputes Redressal Forum, Pune in Complaint Case No.680/1994 directing opponent no.2 to pay amount of Rs.40,950/- to the complainant along with interest on that amount @12% per annum along with costs of litigation, opponent no.2 - Nilesh Anant Phule has filed First Appeal No.A/01/986 and complainant has filed First Appeal No.A/01/1065.
2. Brief facts of the case are as under:
Complainant Chhaganlal K. Oswal had filed Complaint against opponents, Smt.Manik Anant Phule and Mr.Nilesh Anant Phule, claiming different reliefs against them. Complainant submitted that he had purchased flat bearing no.16 on 3rd floor of the building admeasuring 485 sq.ft. built-up area excluding the area of balconies @Rs.450/- per sq.ft. situated on land bearing survey no.42, Parvati, Pune. He submitted that the total consideration of the flat was Rs.2,18,250/-. The possession of the flat was to be given on or before 31st December, 1991. He had deposited amount of Rs.50,000/- with the opponent and balance amount was to be paid on the date of taking possession of flat. He submitted that for that purpose he had obtained loan from bank and had made arrangement of consideration for purchase of flat. He submitted that opponent A/01/986 & A/01/1065 3/9 had not given possession of the flat as agreed on 31st December, 1991. However, opponent had given possession of that flat to him on 09/11/1993 by accepting balance amount of consideration. He submitted that at that time he had seen that much of the work of the flat was not properly done by the opponent. Hence, he filed complaint against opponents claiming different reliefs against them. Complainant submitted that opponents should make repairs of the flat or to give amount of Rs.15,000/- for repairs of the same. He had also claimed interest for delayed possession of the flat given to him. He submitted that opponent had not given area of the flat to him as agreed and he had given possession of the flat admeasuring 393.85 sq.ft. excluding the area of balconies to him. He submitted that the cost of the same is Rs.1,77,233/- and as such opponent had taken amount of Rs.41,017/- excess from him. He claimed refund of that amount along with interest on that amount. He had also claimed interest on different amounts which he was required to pay as he had obtained loan from bank and he was required to pay the same on different counts.
3. Opponent no.1 contested the complaint by filing written statement on record. Opponent no.1 submitted that at that time she was mother of opponent no.2 and his legal guardian. Entire transaction had done by her husband in the name of opponent no.2. Hence, she submitted that she is not concerned with that transaction. On the basis of agreement executed by opponent no.2, no liability can be fastened on her. She submitted that at the time of submission of plan permission was granted for constructing flats of 485 sq.ft. built-up area. Accordingly, construction of building was done. She submitted that complainant was having knowledge of the same. She submitted that at that time number of agreements of different flats were prepared and it was wrongly mentioned in the agreement that area of flat of 485 sq.ft. excluding balconies is to be given to the complainant. She submitted that as she had not gone through details of the agreement she had no knowledge of the mistake that had taken place while drafting agreement. However, she submitted that complainant had A/01/986 & A/01/1065 4/9 knowledge about the same and he had never taken any objection about the same. She submitted that because of that mistake complainant again claimed additional area of flat from the opponents. She submitted that the complainant had agreed to give balance amount of consideration on the date of taking possession of flat. She submitted that the construction of flat had already been completed on 31/12/1991. However, complainant had no amount with him and he had not taken possession of flat at that time and had taken the same subsequently in the month of March, 1993. Opponent no.1 specifically denied that the construction of the flat was not as per the agreement and much of the work of the flat remained to be constructed. She submitted that at the time of taking possession complainant had not taken objection about the same and had not refused to take possession of the flat. Hence, she submitted that the complainant was given area of the flat as agreed. The delayed possession was due to fault of the complainant. Hence, she submitted that the complaint filed by the complainant against the opponents is false and the same be dismissed.
4. Considering the evidence on record of complainant and opponents and documents filed on record, the District Forum by passing order on 20/02/2001 partly allowed the complaint directing the opponent no.2 to pay amount of Rs.40,950/- to complainant for less area of flat given by them to complainant along with interest on that amount along with costs of litigation. However, the Ld.District Forum rejected all other claims of complainant against the opponents. Being aggrieved by the same opponent no.2 - Nilesh Anand Phule has preferred appeal bearing No.A/01/986 and complainant himself has preferred appeal bearing No.A/01/1065.
5. Heard Ld.Advocate appearing for the opponent no.2. He submitted that the husband of the opponent no.1 and father of the opponent no.2 was looking after the entire transaction of construction of building. He submitted that the agreement was executed by opponent no.1 on behalf of the opponent no.2. However, she was not having detailed knowledge about the same. He submitted A/01/986 & A/01/1065 5/9 that in this case there is dispute of portion of balconies only. He submitted that the area of 485 sq.ft including area of balconies was to be given to the complainant. However, inadvertently it is mentioned in the agreement that the area is exclusive of balconies. He submitted that the complainant had knowledge of the same and hence, he claimed that much area from the opponents and claimed refund of amount for that much area of the flat. He submitted that the construction of flat was also ready. The complainant had to pay balance amount of consideration and obtain possession of the flat. However, he was not having funds and hence, he had not taken possession of the flat. Hence, he submitted that for delayed possession opponents are not responsible and hence, complainant cannot claim interest on that count. He submitted that the construction of the house was as per agreement and no repairs were required to be made. In that respect no document has been filed on record by the complainant. He submitted that, as rest of the prayers made by the complainant against the opponents were not sustainable, the Ld.District Forum had rejected the same. He submitted that as complainant is not entitled to get total area of flat of 485 sq.ft. excluding portion of balconies he is not entitled to get an amount of Rs.40,950/- from opponent no.2. Hence, he submitted that the Ld.District Forum had not considered this fact properly. Hence, he submitted that appeal be allowed. Order passed by the ld.District Forum be set aside and complaint filed by the complainant be dismissed.
6. Complainant was present in person before the Commission. We heard Complainant. He submitted that the agreement in respect of purchase of flat was in between the complainant and the opponent no.2 and opponent no.1 had signed the same on behalf of opponent no.2. Said agreement was also registered. Hence, he submitted that contents of agreement will prevail. He submitted that in agreement it is specifically mentioned that area of the flat will be 485 sq.ft. excluding portion of balconies. Hence, he submitted that, that much portion of flat is required to be given to the complainant. However, he A/01/986 & A/01/1065 6/9 had given the flat to him of 393.85 sq.ft. As per agreement the total cost of the flat was Rs.2,18,250/-. As less area of flat was given to him he is entitled to get amount of Rs.40,950/- for the same along with interest on that amount. He has specifically denied that construction of flat was ready as agreed by opponents and he had not taken possession of the same as funds were not available with him. He submitted that he had also obtained loan from the Bank and amount of consideration was available with him. However, opponents had not given possession of flat to him as agreed and had given the same after two years. He submitted that hence he is entitled to get interest on the amount of consideration for that period. He also submitted that the construction work of flat was also not proper and many of the repairs were required to be carried out in that flat. He submitted that he is entitled to get amount for repairs of that flat. He also submitted that rest of the claims made by him against the opponents are also genuine and the same are required to be given to him by the opponents. Hence, he submitted that appeal filed by him be allowed and the claims rejected by the Ld.District Forum be given to him.
7. Perused evidence of witnesses filed on record, documents relied on by them. On perusal of the same it has become clear that opponents agreed to sell flat bearing no.16 on third floor of the building admeasuring 485 sq.ft. exclusive of area of balconies situated on land bearing Survey n o.42, Parvati, Pune. In that respect agreement was executed by opponent no.2 in favour of the complainant and opponent no.1 had signed the same on behalf of the opponent no.2. Hence, opponent no.2 is liable for the consequences arising out of that agreement with the complainant. In this case it is admitted fact that the complainant has already taken possession of flat and the area of the flat of which he has taken possession is admeasuring 393.85 sq.ft. It is the contention of the opponent that it was agreed to give flat to the complainant of area fo 485 sq.ft. including area of balconies. However, it was wrongly mentioned in the agreement that it is exclusive of area of balconies. It is the contention of A/01/986 & A/01/1065 7/9 opponents that complainant was having knowledge of the same. However, we are of the opinion that when agreement was reduced into writing and the same was registered, the contents of the agreement will prevail in between the parties. As per agreement opponent was required to give possession of the flat to the complainant admeasuring 485 sqf.t excluding the area of balconies. However, he has not given area of the flat to that extent and the area of the flat which was given to the complainant is of 393.85 sq.ft. only. As per the agreement the rate of purchase of flat was Rs.450/- per sq.ft. Accordingly for less area of flat the opponents are required to pay an amount of Rs.40,950/- to the complainant along with interest on that amount. We are of the opinion that the Ld.District Forum had rightly considered the same. Hence, appeal filed by the opponent/appellant is to be dismissed.
8. The complainant has prayed that the Ld.District Forum had rejected his other claims and the same be given to him. He has mainly prayed for interest for delayed possession of the flat given to him. He had also claimed amount of Rs.15,000/- for repairs of the house as it was not in proper condition at the time of taking possession of the flat. He has also claimed interest on different counts. We are of the opinion that as per the agreement the possession was to be given on 31/12/1991. It is the contention of the opponent that the flat was ready but complainant had not taken possession of the same as he was not having rest of the amount of consideration with him. However, in that respect the opponent has not adduced any evidence on record. There is no evidence on record that for want of consideration the complainant had not taken possession and he had taken possession of the same in the year 1993. Under such circumstances, we are of the opinion that the complainant is entitled to get interest from 31/12/1991 till 09/11/1993 when he had taken possession of the flat on the amount of sale consideration excluding amount of Rs.40,950/- for which separate relief has been granted in favour of the complainant. It is the contention of the opponent that construction of the flat was as per agreement A/01/986 & A/01/1065 8/9 and no repairs were required to that flat. He submitted that for that purpose no evidence has been adduced by complainant on record. However, we are of the opinion that the complainant has mentioned number of facts in his application supported by his affidavit in respect of repairs to be made in the flat. We are of the opinion that when opponent had agreed to give possession of the flat to the complainant it must be given in proper condition. Hence, we are of the opinion that the complainant is entitled to that amount. The amount claimed by the complainant is of Rs.15,000/- on different counts. We are of the opinion that complainant is entitled to get the same. However, in respect of rest of the reliefs claimed by the complainant there is no sufficient evidence brought on record by the complainant and hence, he is not entitled to get the same. Hence we are of the opinion that appeal filed by the complainant will have to be allowed partly. Hence, we proceed to pass the following order:
ORDER
(i) Appeal filed by the opponent no.2 bearing No.A/01/986 is hereby dismissed.
(ii) The appeal filed by the complainant against the opponent bearing No.A/01/1065 is hereby partly allowed.
(iii) The order passed by the Ld.District forum against opponent no.2 is hereby confirmed.
(iv) The Opponent no.2 is hereby directed to give interest @18% per annum on the amount of consideration of flat to the complainant excluding amount of Rs.40,950/- in respect of which separate relief has been granted to the complainant from 31/12/1991 till 09/11/1993.
(v) The opponent no.2 is also hereby directed to pay amount of Rs.15,000/-
to the complainant for making repairs of the flat.
A/01/986 & A/01/1065 9/9(vi) The opponent no.2 is hereby directed to give additional amount to the complainant as directed above within a period of two months from the date of passing of this order otherwise he will have to pay interest on that amount @9% per annum till realization of the amount.
(vii) Amount if any deposited by the appellant in A/01/986 be sent to Consumer Disputes Redressal Forum, Pune.
Pronounced on 16th March, 2017.
[Justice A.P.Bhangale] President [D.R. Shirasao] Judicial Member ep