Gharge -Salunkhe Associates And Ors. vs Shivaji Pandurang Sawant And Ors.

THIS order shall decide the above mentioned two cross revision petitions which have been filed by both the parties in respect of the same judgment rendered by the State Commission, on 23.09.2014. RP 115/2015 was fixed for 18.05.2015, but at the request of the parties, it was requisitioned for today and arguments were heard in both these revision petitions.

M /s. Gharge -Salunkhe Associates, the OP, constructed tenements at Sitara. The building consisted of 3 -storeys with six flats on each floor. Mr. Shivaji Pandurang Sawant and Mrs. Sheela Shivaji Sawant, the complainants, purchased flat No. G -106 and wanted to purchase one room adjacent to G -105. The said room was to be purchased at the cost of Rs. 3,15,000/ -. Both the fora below have come to the conclusion that the complainants have paid a sum of Rs. 1,00,000/ - towards this room, though, according to the complainants, they have paid a sum of Rs. 2,00,000/ -. The OP did not handover the possession of the said one room. The plea raised by the OP is that there is no such agreement that a room in flat No. G -105 is to be sold in favour of the complainants. It was pointed out that, on the contrary, the said flat has been sold to third -party, namely Mr. Mahendra Mohanrao Gharge by registered document dated 07.05.2011. It was contended that under these circumstances, it was not possible to execute any conveyance in respect of one room from Flat No. G -105.

THE District Forum partly allowed the complaint and directed the OP to execute the Sale Deed in respect of area of 197.87 sq.ft. from Flat No. G -105 on receiving Rs. 1,15,000/ - from the complainant after obtaining requisite permissions from the municipal authorities and also to execute Sale Deed in respect of Flat No. G -106 and quantified the compensation to be paid to the complainants by the OP in the sum of Rs. 50,000/ - and imposed costs in the sum of Rs. 5,000/ -.

BOTH the parties preferred appeals before the State Commission. The State Commission partly allowed the appeal filed by the OP and dismissed the appeal filed by the Complainant. It ordered: - "Appeal by the opponents bearing No. FA 14/189 is partly allowed and appeal bearing No. FA 14/349, by the complainant is dismissed. Impugned order is modified, as under: -

Opponents are directed to execute within one month the Sale Deed in respect of Flat No. G -106 on receiving a sum of Rs. 55,000 from the complainant. The Opponent shall also execute within one month the sale deed in respect of one room in flat No. G -105 and deliver possession thereof on receipt of a sum of Rs. 1,15,000/ - from the complainant after getting necessary sanction from the municipal authorities.

The Opponents shall pay, within one month to the complainant compensation of Rs. 50,000/ - towards mental and physical harassment and shall also pay costs quantified at Rs. 5,000/ -."

We have heard the counsel for the OP and complainant No. 1, in person. The State Commission observed, as under: -

"It appears from the evidence placed on record that the opponents had, in fact, filed Special Civil Suit No. 556 of 2011, against the complainant, seeking recovery of possession of flat No. G -106, in which the complainant had also filed counter -claim. The suit is not shown to have disposed of as yet".

WHEN the civil suit is pending between the parties, the fora below should not have arrogated to themselves, the powers which they do not have. Since the civil court is seized of the matter, it is expected that all the disputes pending between the parties in respect of Flat No. G -106 would be decided, by it, therefore, the fora below had no jurisdiction to try that part of this case. Consequently, we set aside the orders passed by the fora below in respect of Flat No. G -106. Both the parties will be at liberty to place their case before the Civil Court, as per law.

NOW , we turn to Flat No. G -105. The complainants have placed on record, payment due receipt in their favour, issued by the OP and a summary of civil work. Its relevant portion runs, as follows: - "Summary of civil work

Site : Sri Sri Dnyankamal Residency

Client : Shri Sawant Sir

Date : 10.07.2009

It clearly goes to show that OP took amount in respect of G -105, bed No. 1. The non -execution of the agreement after accepting the huge amount from the complainants is itself a deficiency on the part of the OP. It clearly goes to show that it was taking the complainants, for a ride. The OP was having the benefit of both the worlds. He was accepting the money from two buyers at the same time. He intentionally did not execute the deed of Bed No. 1, Flat No. G -105. The terms and conditions of the Agreement of sale of one room were never disclosed to the complainants.

IN a case, titled Samarth Associates Engineers & Builders & Ors. Vs. Ramesh Ramchandra Lokhande, Revision Petition No. 4729 of 2013, decided by this Bench, on 10.09.2013, we came to the conclusion that the terms and conditions of the plot must be informed to the consumer, otherwise, it will amount to deficiency in service. We also, further, placed reliance on the judgment passed in Belaire Owners'' Association Vs. DLF Ltd. & Ors., Case No. 19/2010, vide supplementary order dated 03.01.2013, wherein the Competition Commission of India, held: - "31. The terms of the agreement to be entered into with the allottee were never shown to the allottee at the time of booking of the apartment. These terms and conditions of the agreement were prepared and framed by the company unilaterally without consulting the buyer. Once the company had already received considerable amount from the applicants/buyers, this agreement was forced upon the allottees and the allottee had no option but to sign the agreement, as otherwise the agreement provided for heavy penalties and deduction from the money already deposited by the allottees with the company, which itself was an abuse of dominance. The appropriate procedure would have been that a copy of the agreement which DLF proposed to enter with the allottee should have been made available to the applicants at the time of inviting applications".

A Special Leave to Appeal (Civil) Nos. 36667 -68 of 2013, was filed against the judgment and order passed in Revision Petition No. 4729 of 2012, wherein the Hon''ble Apex Court, vide its order dated 16.12.2013, dismissed the same. Both the fora below have accepted the case of the complainants in this respect and have given just and reasonable grounds. Another deficiency on the part of the OP that is discernible is that he has interpolated the documents. The State Commission has observed, as under: -

"In the second para, no flat number was initially mentioned. Here too, there is an interpolation mentioning flat number as G -105 initiated by Mr. Sudhir Gharge. Learned counsel for the opponents sought to place reliance on signatures of the complainant in the margin of the page. But they are not against the alterations made but indicative of the page being a part of the agreement. The agreement itself would show that the complainant did seek one room from flat No. G -105 and that the complainant wanted to obtain loan from financial institution for purchasing such a room. Now, act of opponents referred to in second para of this very agreement on which they rely, about providing some receipts, just to accommodate the complainants, would be indicative of their accepting the proposal of the complainant to purchase one room from flat No. G -105 and, therefore, it would not be open to the opponents to say that there was no such agreement of selling one room from flat No. G -105".

THE deficiency on the part of OP stands established. However, it must be borne in mind that the complaint was filed on 24.12.2012, i.e., after the third -party right had been created. If the Op is made to comply with the order passed by the fora below, it would entail a long procedure and the third party will be unnecessarily disturbed and harassed. Though the act of the OP is not excusable, yet, we thing that the complainants can be compensated with adequate compensation and costs. It is also doubtful, whether, the municipal authorities will allow to have such like arrangements. At the same time, the prices of residential accommodation have gone up, by leaps and bounds. Consequently, we modify the order passed by the State Commission and direct the OP to pay a sum of Rs. 3,50,000/ - as compensation, to the complainants, instead of one room in Flat No. G -105. The said amount be paid to the complainants, within a period of 90 days from the date of receipt of copy of this order, otherwise, after expiry of said 90 days, it will carry interest @ 9% p.a., till its realization. Due to the bizarre conduct of the OP, we further impose costs of Rs. 25,000/ -, which be deposited with the legal aid account of this Commission, through demand draft, within 90 days'' from the receipt of copy of this judgment, otherwise, it will carry interest at the rate of 9% p.a., till realization. Both the revision petitions stand disposed of.

PARTIES will be bound by the order passed by the Civil Court in respect of Flat No. G -105. Orders passed by the fora below in that context are hereby set aside.