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Manoj Khushaldas Gandhi v/s M/s. Prakash Estates & Others

    Consumer Case No. 577 of 2015

    Decided On, 15 October 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. PREM NARAIN
    By, PRESIDING MEMBER

    For the Complainant: Rajeev Sharma, Abhishek Birthray, Deepesh, Advocates. For the Opposite Parties: Priya Kumar, Adhish Srivastava, Advocates.



Judgment Text

This consumer complaint has been filed by the complainant Manoj Khushaldas Gandhi against opposite parties M/s. Prakash Estates & Ors.

2. Brief facts of the case are that the opposite parties entered into a development agreement with the mother of the complainant. It has been alleged by the complainant that as per the development agreement six flats were to be given to the complainant’s family. The opposite parties have given five flats to other heirs of the mother and he is the sixth heir, but opposite parties have not given flat to the complainant. It has been further alleged in the complaint that the opposite party has not paid the corpus and inconvenience allowance to the complainant as per the provisions of the development agreement.

3. The complaint has been resisted by the opposite parties on the ground that the complainant has not produced the certificate of his being legal heir of the party which entered into the development agreement with the opposite parties. It has been stated that the corpus and inconvenience allowance had already been paid to the mother of the complainant and all other 5 heirs have taken possession of the flat and have not raised any objection in respect of the payment of corpus and inconvenience allowance. Opposite parties have further stated that there are certain dues as per the provisions of the development agreement, which are to be paid by the complainant. It has been requested to dismiss the complaint on these grounds. Both the parties filed their evidence by way of affidavit, which have been taken on record.

4. Heard the learned counsel for the parties and perused the record. Learned counsel for the complainant stated that first of all there should be no question of producing herein Succession Certificate because the opposite parties have already given flat to other heirs and only the complainant is left. Complainant is also asking for the payment of corpus and inconvenience allowance as per the development agreement. Learned counsel stated that the objection of the opposite parties in respect of corpus and inconvenience allowance is that the same was paid to the mother and there is no objection from any of the heirs except the complainant and therefore, this is a matter that can only be adjudicated by the civil court and this Commission has no jurisdiction to decide the same. Learned counsel agreed with the assertion of the opposite parties and stated that he will be taking up this matter separately in the civil court and therefore, he will not further argue on this aspect.

5. Learned counsel for the complainant further stated that it is wrong to say that the opposite parties sent information to enter into the agreement for allotment of flat. When the opposite parties had the address of the complainant, they should have sent this information directly to the complainant, however, they sent it through brothers which never reached to the complainant. Thus, the complainant is entitled to compensation for delay in handing over the possession.

6. Coming to the question of possession of the flat and demands made by the opposite parties, learned counsel stated that the complainant is ready to pay as per the development agreement and the opposite parties should handover the peaceful and vacant possession of the flat. Learned counsel further stated that in their reply and their affidavit, the opposite parties have accepted that a flat is reserved for the complainant, however, the same has not been delivered on the ground of non-payment of certain charges. Thus, the opposite parties cannot raise a new question of heirship. The learned counsel further alleged that the opposite parties are unnecessarily charging maintenance fee when the flat is not under the possession of the complainant. The complainant is ready to pay maintenance charges from the date the possession is taken over by the complainant.

7. On the other hand, learned counsel for the opposite parties stated that the complainant has not filed any proof that he is legal heir of the person, who entered into the agreement with the opposite parties. It was pointed out by the learned counsel that there is no question of paying any corpus and inconvenience allowance to the complainant as the same was already paid to the mother of the complainant when she was alive. Moreover, if the complainant is denying the same, this Commission lacks jurisdiction to decide the matter as this is a civil matter and can only be decided by the civil court as lot of evidence would be required for deciding the same. Coming to the question of possession, learned counsel for the opposite parties stated that the flat is ready and the possession can be delivered to the complainant provided he submits his papers regarding his succession certificate and he also pays the dues. She further stated that all the charges being asked from the complainant are based on the development agreement.

8. Learned counsel for the opposite parties stated that it is not true that the opposite parties are not letting the complainant to go inside the flat. The complainant is free to inspect the flat, however, there is no question to obtain certificate from legal Metrology as the flat dimensions and other parameters are already given in the agreement and the complainant may verify himself.

9. The opposite parties sent request to the complainant to enter into an agreement for allotment of the flat, however, the complainant instead of entering into the agreement started raising various issues which were not relevant for allotment and possession of the flat, therefore, the complainant cannot claim any compensation for delay in possession as he himself is responsible for the delay.

10. I have carefully considered the arguments advanced by the learned counsel for the parties and have examined the record. Admitted position is that as per family settlement, five heirs have already been provided flat each by the opposite parties and they have already taken possession and have no dispute with the opposite parties in respect of either possession of the flat or in respect of corpus and inconvenience allowance. The complainant has already agreed to the assertion of the opposite parties that the matter in respect of corpus and inconvenience allowance can only be decided by the civil court and the same may be relegated to the civil court. So far as other question of the possession of the flat is concerned, the complainant is willing to take the possession and opposite parties are willing to hand over the possession. The only dispute is regarding charges to be paid by the complainant to the opposite parties. Both parties have agreed that the charges are required to be paid as per the development agreement. Thus, the opposite parties also cannot demand more than what is permissible under the development agreement except for registration charges for the conveyance deed of the flat. The complainant has also agreed to pay as per the development agreement and opposite parties have also stated that they are ready to accept the payment as per the development agreement. I also do not see any merit in the demand of the complainant that certificate of legal Metrology be obtained by the opposite parties in respect of the dimensions of the flat. The opposite parties have agreed that the complainant may visit and inspect the flat and can get the dimensions of the flat himself or his architect.

11. The complainant has raised the issue of maintenance charges also. It is accepted principle that maintenances charges are to be paid from the date of actual possession. Therefore, in this case also, the opposite parties are entitled to charge maintenance charges from the date of actual possession if there is no claim regarding maintenance charges in the development agreement.

12. So far as the delay in handing over the possession is concerned, both the parties have made their rival contentions for delay. As this is not a purchased flat and the complainant’s entitlement is on the basis of the family settlement for a developed property under the development agreement, delay cannot be compensated in terms of interest on the paid amount. The opposite parties have admitted that the offer of possession letter was sent on the address of complainant’s brother, whereas the letter should have been sent on the complainant’s address. Thus, clearly the major delay has been caused by the opposite parties. In the facts and circumstances of the case, I deem it appropriate to allow lump sum amount of Rs.5,00,000/- as compensation.

13. Based on the above discussion, the following order is passed:

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R 14. Consumer Complaint No.577 of 2015 is partly allowed and the opposite parties are directed to hand over possession of the flat No.701 to the complainant within a period of 45 days from the date of receipt/service of this order after receiving the payment from the complainant as per the provisions of the development agreement. (a) The opposite parties shall pay a compensation of Rs.5,00,000/- (rupees five lakhs only) to the complainant. However, both the parties were at liberty to adjust the same in the payment of charges to be made by the complainant. (c) The maintenance charges will be taken from the date of actual possession if there is no contrary provision in the development agreement. (d) The complaint in respect of corpus and inconvenience allowance against the opposite parties is dismissed as not pressed. However, liberty is granted to the complainant to approach the civil court in this regard if so advised.
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