B.A. Shaikh, Presiding Member
1. This is a complaint filed under Section 12 read with Section 17 of Consumer Protect Act, 1986.
2. The case of the complainant as set out in the complaint in brief is as under.
The opposite party (for short O.P.) No.1 is a partnership firm. It carries business of construction and selling of the flats. O.P. Nos.2, 3 & 4 are its partners. O.P.No.1 floated a flat scheme at Nagpur called as 'Imperial Annex' and offered the proposed flat of that building for sale to the prospective purchasers. The complainant entered into registered agreement of sale with O.P. No.1 for flat No.103 of the said building for total consideration of Rs.19.00 Lacs. The market price of the said flat was Rs.11.75 Lacs. But the complainant paid consideration of Rs.19.00 Lacs. Thus he paid excess amount for providing extra facilities namely glazed tiles, 20 litres geysers in bathrooms, air conditioners, modular kitchen, furniture, Sofa set, double bed with mattresses, bed-sheets, pillows and other necessary furniture and soft furnishing and oil paints in all the rooms. The O.P.No.1 had agreed to give the possession of the completed flat within 15 months from the date of agreement. The agreement was entered into between them on 08.04.2010 and possession of the flat was thus to be delivered to the complainant by July 2011. It was also agreed that if the possession is not handed over by July 2011, the O.P.No.1 will pay damages @ Rs.25,000/- per month from August 2011 for the delay. The O.Ps did not hand over the possession as per agreement despite of making repeated requests by the complainant to them. The complainant sent notice dtd. 17.09.2012 to the O.Ps requesting them to handover the possession of the flat, execute the sale-deed of the flat and to pay damages for delay till December 2012 amounting to Rs.3.50 Lacs within 15 days. They did not give its reply to the complainant though they received the notice. Therefore, the O.Ps rendered deficient service to the complainant. The complainant prayed that the direction be given to the O.Ps to complete the construction of the flat in all respects and deliver its possession to the complainant and execute registered sale-deed of the said flat in favour of the complainant and to pay him damages of Rs.4.25 Lacs at agreed rate of Rs.25,000/- per month from August 2011 till December 2012 i.e. for 17 months and also to pay further damages of Rs.25,000/- per month from January 2013 till possession of the flat is delivered and sale-deed is executed. The complainant alternatively prayed that direction be given to the OP. to refund consideration of Rs.19.00 Lacs and registration expenses of the agreement amounting to Rs.1.00 Lac i.e. Rs.20.00 Lacs with interest @18% p.a. from 08.04.2010 till its realisation by the complainant and also to pay him damages of Rs.25,000/- for not giving him flat and over the escalation of price of the flat since year 2010 and not to create third party interest in the flat and to pay him cost of Rs.25,000/-.
3. O.P.Nos.1 to 4 resisted the complaint by filing their common reply. They raised preliminary objections about none maintainability of the complaint on the ground that no relationship is existed as service provider and the consumer in the between them and the complainant and that remedy available to the complainant is under Specific Relief Act. They admitted that the registered agreement of sale was entered into between them and the complainant in respect of the flat described in the complaint and its total price is fixed at Rs.19.00 Lacs as per said agreement. However, it is their case in brief that they purchased the land owned by the complainant in pursuance of the registered sale-deed dtd.18.03.2010 for total sale consideration of Rs.51,01,000/- together with residential flat bearing No.103 valued at Rs.19.00 Lacs, which was agreed to be given by them to the complainants. Accordingly, they constructed the building known as 'Imperial Annex' comprising of 30 flats / apartments on the aforesaid land. The value of the flat was adjusted in the market value of the aforesaid land as above. However, the complainant had agreed to pay separately electricity meter charges, drinking water connection charges, registration charges of the sale-deed and other charges levied by the Corporation from time to time and registered agreement to sell was entered into between both parties in respect of that flat on 08.04.2010 and construction was to be completed within 15 months i.e. by August 2011. Accordingly, the construction came to be completed by August 2011. They had called upon the complainant number of times to take possession of the flat and to get the sale-deed executed on payment of legal charges, local body taxes and extra work carried out in the flat as per direction of the complainant. The complainant did not pay Rs.40,000/- towards electric meter charges and Rs.10,000/- for drinking water connection and other charges and Rs.36,000/- for vitrified tiles and fitting charges. Rs.8,000/- towards green marble otta, Rs.20,000/- towards semi plastic distemper charges alongwith 1% LBT charges on market value of the flat, Rs.7,000/- towards execution of the sale-deed. Thus, the complainant avoided to make payment of Rs.1,21,000/- alongwith 1% LBT on market value of the flat and other taxes. The O.Ps are ready to execute the sale-deed of the flat after receipt of the aforesaid dues. Therefore, they have not rendered deficient service to the complainant. Hence, they requested that complaint may be dismissed with cost.
4. The complaint filed his evidence affidavit in support of the complaint. He also filed the following documents-
Registered Agreement of Sale dtd.08.04.2010, Notice dtd. 17.09.2012, Postal receipt & acknowledgement about said notice. The complainant also filed rejoinder to the complaint. He also filed copies of documents namely registered sale-deed dtd. 22.03.2010, which in respect of the sale of land on which the scheme comprising of flats is constructed, three affidavits of the O.Ps, who had undertaken in those affidavits to complete the construction within 15 months from 22.03.2010. The complainant also filed Written Notes of Arguments and additional Written Notes of Arguments alongwith citations.
5. On the other hand, the O.Ps filed evidence affidavit of O.P.No.2 – Jagdish Jayantilal Patel in respect of their defence. The O.Ps also filed four photographs of the disputed flat to show that its construction is fully completed. They also produced copy of the bill showing item-wise extra work and their total value and further showing total amount of Rs.2,88,014/- as due from the complainant on various items. The O.Ps also filed Written Notes of Arguments.
6. We have also heard the complainant in person and learned advocate of the O.Ps and we have also perused the aforesaid material placed before us by both parties.
7. The complainant reiterated his case in his argument as set out in the complaint and denied the aforesaid case of the O.Ps. He also relied on the observations made in the following cases:-
i. Lalit Kumar Gupta & Ajay Kumar Gupta Vs. M/s D.L.F. Universal Ltd. – III (2002) CPJ 54 (NC)
In that case delivery of possession of the dwelling unit was delayed and therefore direction was given to pay interest @ 20% p.a. over the deposited amount for the period of delay.
ii. A.G. Developers Vs. Amar Kumar Chabra & Anr., IV (2012) CPJ 426 (NC)
In that case proper sanction plan for building construction was not obtained by the appellant. The builder was enjoyed possession of the flat of that unauthorised building. He was also enjoying substantial amount of the consideration paid by the respondent. Therefore, deficiency in service was proved and therefore compensation and damages were awarded.
iii. Faqir Chand Gulati Vs. Uppal Agencies Pvt Ltd & Anr., (2008) 10 Supreme Court Cases 345.
In that case agreement was entered about building construction between landowner and builder. Agreement required the builder to construct the apartment building on owner’s land and share the constructed area with owner with consideration of entire cost incurred and services rendered by him. There were deficiencies / defects in the constructed share of land owner. Therefore, consumer complaint was filed by the land owner against the builder. It is held that the complaint is maintainable.
iv. Umesh Kumar Vs. The Improvement Trust, Through its Officers, The Executive Officer and the Chairman, 2014 (4) CPR 667 (NC).
It is observed that the parties are bound by terms & conditions of the agreement.
v. Sh. Prabir Chatterjee Vs. Sh. Sunirmal Chakraborty, 2015 (1) CPR 650 (NC)
It is observed that the complainant is not bound to pay for additional area which the builder constructed of his own without any instructions from complainant.
vi. M/s Krish City, through its Managind Director Vs. Laxmi Garg, 2015(1) CPR 395 (NC)
In that case the O.P. was directed to pay delay charges of Rs.49,335/- to the complainant and to give possession immediately and execute the sale-deed within 30 days and in case of failure to pay penalty of Rs.500/- per day with cost of Rs.25,000/- besides the costs imposed by the District Consumer Forum.
vii. Carlos Felix Barretto & Ors. Vs. Shetty Coastal Development Pvt Ltd., 3024(2) CPR 15 (Mum.)
It is held that the builder cannot harass the buyer after receiving money.
8. On the other hand, the learned advocate of the O.Ps in his argument reiterated the aforesaid case of the O.Ps and in addition to that he submitted that though the construction of the flat was completed within time and as the charges towards extra work and towards other charges as specified in reply by O.Ps were not paid by the complainant, possession was not given to the complainant and sale-deed was not executed. He, therefore, submitted that as the complainant has intentionally withheld the amount legitimately due from him, the O.Ps have suffered heavy monetary loss and therefore, the complaint may be dismissed with heavy cost.
9. So far as the maintainability of the complaint is concerned, we find that the agreement entered into between the complainant and the O.Ps is not joint venture about the construction of the building. But the agreement is pertaining to hiring of services of the O.Ps by the complainant for construction of flat in a multi-storeyed building at the cost of Rs.19.00 Lacs, which was to be adjusted in the part price of the land owned by the complainant. Therefore, though the complainant is previous landowner, he is a consumer of the O.Ps, who are the builder and service provider as contemplated under Consumer Protection Act. Hence, the complaint is maintainable before this Commission.
10. It is not disputed that entire price of the flat, in question, fixed as per agreement dtd.08.04.2010 entered into between both the parties is Rs.19,01,000/- and the O.Ps have already received that price as adjusted towards the part of the price of the land, which was sold by the complainant to the O.Ps by registered sale-deed dtd.22.03.2010.
11. Admittedly, the possession of fully completed flat was to be delivered as per agreement by the O.Ps to the complainant till the end of the month of July 2011 and sale-deed was also to be executed as per that agreement till July 2011. Moreover, admittedly, the possession of the flat is not given alongwith sale-deed to the complainant even after the expiry of said period of 15 months from the date of agreement to sell.
12. It is a case of the O.P in short that though they did extra work in the flat as per request of the complainant as specified in their reply filed before this Commission and though as per agreement and the brochure supplied to the complainant, he was required to pay additional charges, the complainant did not pay the same and hence, possession was not delivered and sale-deed was not executed.
13. It is the case of the complainant that he did not ask for any such extra work but Rs.19,01,000/- was paid towards the price of the flat including the extra amenities and facilities.
14. However, it is pertinent to note that the O.Ps never demanded any such amount towards extra work done by them, from the complainant by writing any letter or giving any notice in writing to him. They have not given any explanation for not demanding the same in writing from the complainant. Moreover, even they have not given reply to the notice of the complainant which was given to them by him before filing of the complaint. Thus the O.Ps at an earliest opportunity did not demand any such extra amount from the complainant by giving him reply of his notice.
15. There is also no document to show that the complainant had asked the O.Ps to do extra work in the flat. Therefore, if it is accepted that the O.Ps have done some extra work in the flat, they as of right, cannot claim cost of extra work from the complainant, which was done by them without consent of the complainant about payment of extra money for extra work.
16. Therefore, we hold that the defence raised by the O.Ps, cannot be accepted that possession of the flat was not delivered to the complainant because of non payment of extra money for extra work done by them in the flat.
17. Moreover, we also find that as per agreement of sale dtd.08.10.2010 it is the liability of the complainant / purchaser to pay Corporation taxes, cess and expenses for the sale-deed. Moreover, the said agreement also shows that the specific and other particulars of the flat are given in brochure attached with the agreement. As per that brochure the purchaser / complainant will have to bear the charges for the following purposes -
i. Registration, Stamp Duty / Service Tax and document preparation charges.
ii. Electrical Substation net work and meter charges extra.
Drinking water net work and meter charges extra.
Extra work to be done with extra payment in advance.
Extra land and extra terrace will charge extra.
Any other Government taxes will be charged extra as applicable.
18. Thus, the complainant is liable to pay charges for aforesaid items Nos.1, 2, 3 & 6 only. As observed above, the complainant is not liable to pay charges for item at Sr.Nos.4 & 5. However, the brochure is not clear as to when and how the aforesaid charges for items at Sr.Nos.1, 2, 3 & 6 were to be paid by the complainant to the O.P. Moreover, neither agreement to sell nor the brochure shows the exact amount to be paid by the complainant to the O.P. towards the said items. It is also found that the O.P. never demanded in writing any such specified amount towards those items from the complainant. Hence, mere production of the bill, showing the amount dues from the complainant, is not sufficient, in the absence of any demand in writing prior to date of the complaint.
19. It is also not the case the case of the complainant that he is not liable to pay charges for aforesaid items at Sr.Nos.1, 2, 3 & 6 of the brochure. Hence, it cannot be presumed that the complainant refused to bear those charges for getting possession of the flat and the sale-deed. We, therefore, hold that non-delivery of possession of the flat and for not executing the sale-deed of the flat in favour of the complainant, the O.Ps have rendered deficiency in service to the complainant. Therefore, we hold that the complaint is entitled to damages towards the delay in delivery of the possession of the flat to him.
20. We find that complainant has also not showed his readiness to pay charges of items at Sr.Nos.1, 2, 3 & 6 of the brochure. Hence, considering the area of the flat and location, we find that the complainant is entitled to damages of Rs.5,000/- per month for delay in delivery of the possession of the flat to the complainant. Moreover, the complaint is also entitled to compensation of Rs.25,000/- towards physical & mental harassment and cost of Rs.10,000/-. Accordingly, we proceed to pass the following
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order. ORDER i. The complaint is partly allowed. ii. The complainant shall deposit with this Commission Rs.40,000/- towards electric meter charges, Rs.10,000/- towards drinking water connection and the necessary expenses required for registration of the sale-deed including service tax, document preparation charges and other Government taxes and there-upon issue notice about the same to the opposite parties by Registered Post A.D. giving intimation to them about the same. iii. The Demand Draft of the aforesaid amount be drawn in the name of opposite party No.1, at the time of execution of the sale-deed and delivery of possession of the flat and it be handed over to the complainant, who shall handover the same to the opposite parties at the time of actual execution of sale-deed and delivery of possession of the flat. iv. The opposite parties, within one month of receiving that notice from the complainant, shall deliver the possession of the flat to the complainant and shall execute the sale-deed of the same as per registered agreement of sale dtd.08.04.2010 in favour of the complainant. v. The opposite parties are entitled to receive the amount deposited with this Commission by the complainant at the time of execution of the sale-deed. vi. The opposite parties shall pay damages @ Rs.5,000/- per month for the delay in possession of the flat w.e.f. 01.08.2011 till the possession of the flat is delivered by the opposite parties to the complainant as above. vii. The O.Ps shall also pay compensation of Rs.25,000/- towards physical & mental harassment and cost of Rs.10,000/- towards litigation charges to the complainant. viii. Copy of the order be furnished to both parties free of cost.