C.K.V.SUBRAMANIAN vs RAMESH R.KALYANKAR

WE are proceeding to dispose of this complaint itself on the basis of material available before us and also on hearing the learned Advocates for the parties. (For brevity''s sake hereinafter the complainant is referred to as "Flat purchaser" and O.P. as "Builder").

THE complainant has filed this complaint with the factual background as under : THE parties herein entered into an agreement on 15.6.1996 whereby the Builder agreed to construct bungalows for flat purchaser after paying total consideration of Rs. 10,16,500/-. THE said agreement forms part of the complaint as Annexure. THE agreement contained usual terms as we notice such as total construction cost description of bungalow to be constructed as also site, payment schedule and delivery of possession. The total agreed consideration was Rs. 10,16,500/- and delivery within twelve months. The payment schedule has been mentioned in Para No. 2(a) to (k) of the terms.

The bungalow was to be constructed in Sector 14, CIDCO Colony, New Panvel and particulars of bangalow to be constructed is furnished in Para 2 of the agreement. The same are A-6, area of 1250 sq. ft.

IT is the case of the complainant from time to time, he, the flat purchaser paid diverse amount to the Builder, Rs. 3,02,000/- out of total consideration agreed. The particulars of payment are The Builder issued an allotment letter which is at Page 40 of the compilation on 22.4.1996 to the flat purchaser confirming the deal between the two parties as also agreed to deliver possession etc. The receipts issued for payment forms part of exhibit to the complaint.

IT is the case of the complainant that there was no progress made in the construction work of the bungalow by the Builders and that the same kept him on guard and he became apprehensive about the completion of the project by the Builders. Correspondence came to be exchanged between the parties which also forms part of the complaint. The flat purchaser, therefore, addressed a letter page No. 70 dated 20.4.1998 to the Builder recounting as to what transpired prior to the said letter regarding payment etc. and non-delivery of the possession of the flat as also completion of the construction, as nothing turned out that the complaint herein has been filed.

IT is to be stated that as required under the law and rules there is no regular and proper written statements as such filed by and on behalf of the Builder. In that no affidavit has been filed by and on behalf of the Builder/O.P., which is more crucial and vital formality, like statutory formality in answer to the case and claim of the complainant in the complaint. Instead one application has been filed with written say by Mr. Ramesh R. Kalyankar, one of the Directors of the O.P. which is in the record of proceedings and from which it is noticed that the objection by way of preliminary objection have been taken about maintainability of the complaint as consumer dispute before this Commission. Inter alia it has been urged that the claim in the complaint does not fall within pecuniary limit of this Commission and, therefore, the same should not be entertained.

HOWEVER, it needs to the stated that the said point need not detain us any longer, as in the complaint, besides refund of the amount paid by the flat purchaser to the Builder towards consideration, alleging deficiency against him a claim of a sum of Rs. 4,00,000/- as damages has been made. It is to be stated that in the event of grievance of deficiency in service, same being proved, as provided under Section 14(2) of Consumer Protection Act, 1986, the party claiming damages is to be compensated with payment of compensation. The total claim made by is for Rs. 7,02,000/- which would fall squarely within the pecuniary jurisdiction of this Commission. Since there is no affidavit filed which is must, as laid by the Supreme Court in the case of Lata Construction and Ors. v. Dr. Rameshchandra Ramniklal Shah & Ors., reported in III (1999) CPJ 46 (SC)=X (1999) SLT 77, the case and claim of the complainant in support of the complaint are set out in the complaint is to be taken as remained unchallenged and uncontroverted by and on behalf of the O.P./Builder.

The following points would arise for determination : (1) Whether the complainant is a consumer within the meaning of Section 2(i)(d) of Consumer Protection Act, 1986 ? (2) Whether the complainant proving the O.P./Builder being deficient in rendering services ? (3) Whether the complainant is entitled to damages has claimed ?

Our findings of the above points are : 1. Yes. 2. Yes. 3. Yes. 4. As per final order.

WE take up (1) and (2) for consideration together for avoiding overlapping discussion thereof, apart from the fact that there is no effective and proper challenge as such to the case and claim of the complainant as averred in the complaint, which is supported by voluminous evidence in the form of agreement, allotment letter, receipts evidencing payments etc., and duly corroborated by the pleadings by and on behalf of the O.P. the said aspects have not been seriously disputed. Considering the nature of transaction as obtained in the matter herein, we wish to state that the same would clearly fall under the category of "Housing Construction" as defined under Section 2(i)(11) of Consumer Protection Act, 1986. It is to be stated that the kind of services viz. Housing Construction has been incorporated by the Legislature by amendment in 1993 under Section 2(i)(o) which defines services. The kind of transaction obtained in the matter herein would fall under the said category. As far as deficiency is concerned, it is noticed that the complainant has paid Rs. 3,02,000/- to the Builder. It is the case of the complainant that no construction has been commenced by the Builder on the site. This has been disputed and denied by the O.P. Inasmuch as it was asserted by the Builder having constructed upto plinth level, but, as stated, no proof made available in support thereof.

IT is to be stated that out of total consideration of Rs. 10,16,500/-, the flat purchaser has paid a sum of about Rs. 3,00,000/- which is also one-third of the consideration. As the position stands construction has not been completed for that matter progressed as averred by the flat purchaser and which is also reflected from the correspondence. He was ready and willing to discharge his obligations under the contract but there was no progress in the construction. Therefore, he became apprehensive and did not release further amount. We, therefore, hold the Builder being deficient in not completing construction and delivering the bungalow. Under Section 14(2) of Consumer Protection Act, 1986, the complainant will be entitled to compensation. Point No. 3 :

ON the point we wish to make reference to our judgment passed in the identical case of M/s. Paranjpe Constructions v. Nilesh Ram Marathe in Appeal No. 584/1998 in C. No. 365/1995 decided on 20.6.2001 reported in 2001 (3) ALL MR (Journal), wherein after surveying the law as also case of law, we have held that non-construction and failure to deliver the flat within stipulated time would constitute deficiency in service under Section 2(1)(g) of Consumer Protection Act, 1986.

THAT being so, we are of the view that while granting relief it will be appropriate that the amounts paid by the complainant to the O.P./Builder is refunded with adequate compensation. Section 8 of Flat Ownership Act, 1963, prescribes payment of interest at 9% p.a. But the same will be in a normal course of circumstances and not as obtained in the matter herein. Therefore, we order that the Builder to refund the amount with interest at the rate of 9% p.a. from the dates of respective payments as will be indicated in operative part of the order. Since the deficiency stands proved, we also order payment of Rs. 15,000/- as compensation which the Builder-O.P. pay to the complainant and in addition a sum of Rs. 3,000/- towards cost. ORDER 1. It is held that the O.P./Builder deficient in rendering services to the complainant. 2. O.P./Builder ordered to refund a sum of Rs. 3,02,000/- to the complainant with interest at the rate of 9% from the date of payment as indicated herein till realisation. Date of payments made Amount 14.4.1996 42,000/- 15.6.1996 1,00,000/- 21.8.1996 1,00,000/- 16.6.1997 50,000/- 11.11.1996 10,000/- 3,02,000/- 3. O.P./Builder shall pay compensation to the complainant quantified to Rs. 15,000/-. 4. O.P./Builder shall pay cost quantified to Rs. 3,000/-. 5. Eight weeks'' time from today is granted to the O.P. for compliance of our order. 6. Office shall furnish copies of the order to the parties. Complaint allowed.