GOVIND KALIDAS MAHAJAN vs ANIL PUNDLIK THORAT

FOR brevity''s sake the complainant herein is referred to as "Flat-purchaser" and O.Ps. as "Builders".

THE flat purchasers have filed this complaint claiming sum of Rs. one lakh with 24% interest from the builders being the consideration paid to them. The sum of Rs. 2 lakhs towards the deficiency in service by the builders in non-construction of the flat plus a sum of Rs. 2 lakhs towards the negligence, and sum of Rs. 2 lakhs towards mental agony, and Rs. 20,000/- towards the cost. Few facts -

The flat purchasers and the builders entered into agreement on 26.5.1994 whereby builders agreed to sell one flat being No. 4 to the flat purchaser for total consideration of Rs. 1,80,000/-. The construction was to take place in Jalgaon at Dhake Colony. The flat purchasers paid a sum of Rs. 1 lakh towards the construction leaving balance thereunder of Rs. 80,000/-. The agreement came to be executed on 31.5.1994 which forms part of complaint being Exh. A which mentions the above amount received by the builders. The balance amount of consideration was to be paid on the date of handing over of the possession. However, no possession was given within the stipulated time and the date of possession was extended till 30.6.1995 by the parties. However, builder did not give the possession to the flat purchasers even within the extended period.

ON the other hand, according to the flat purchasers, the builders sold away the said flat to some third parties and made huge profits. According to the flat purchasers, this is in breach of the contract as also the contrary to the provisions of Maharashtra Ownership of Flats Act. The correspondence came to be exchanged between the parties and since the same did not yield any result, the flat purchasers have filed this complaint.

IN response to the Show Cause Notice, the builders have appeared and also filed their written-statement in which the contentions raised are - (i) Pendency of civil suit filed by flat purchasers against them in the Civil Court. (ii) The Commission had no jurisdiction to entertain the complaint, and (iii) On merits, as far as payment of Rs. 1 lakh, the same was not paid towards consideration but it was advanced to the builders as a loan and the agreement dated 31.5.1994 referred to above relied upon the flat purchasers is not an agreement for sale of flat but it''s a loan agreement.

We have heard the submissions made on behalf of both the parties as also perused the pleadings and the related documents mentioned herein above. The following points arise for our consideration - (i) Whether complaint is not maintainable in view of pendency of civil suit in the Civil Court ? (ii) Whether complaint not maintainable before this Commission ? (iii) Whether complainant/flat purchaser proved the builders being deficient in service ? (iv) What relief, the complainant is entitled to ?

OUR findings on the aforesaid Points are as under : (i) No. (ii) No. (iii) Yes. (iv) As per Final Order.

REASONS : Point (i) - The claim in the suit filed before the Civil Court, Jalgaon by the complainants against the builder is Suit No. 295/1997 for recovery of amount from the builders who are defendants in the said suit being the consideration payable in respect of plot of land which the family of the complainant has sold to the builders. That being so, the contention raised by and on behalf of the builders about the pendency of the suit would not operate as impediment or bar in entertaining the complaint. This is so because the matter in issue in the said suit and the complaint herein are different and distinct and in no way, there is any nexus with each other. (ii) This aspect has not been specifically elaborated or explained by the builders as to why this Commission would lack jurisdiction of entertaining and trying the present complaint. It is sought to be vaguely suggested that the flat purchaser/complainant, as stated, has made inflated claims in all respect and that being so on realistic evaluation, the monetary claim could be less than Rs. 5 lakhs and, therefore, the State Commission cannot entertain this complaint because of lack of monetary jurisdiction. (iii) However, all said and done, in the complaint, the complainant had made the claim which is exceeding the sum of Rs. 5 lakhs and that being so whether the claim is genuine or otherwise or even inflated, one has to read the complaint in the matter herein as it stands for the purpose of determination of pecuniary jurisdiction of any Forum, and if so done, considering the extent of claim, it is held that this Commission has jurisdiction to entertain the complaint. (iv) The execution of the agreement dated 31.5.1994 which is a crucial document in the context of controversy in the complaint herein has been admitted by the builders. The builders have admitted execution thereof. If one reads the said agreement, there is even no remote whisper to indicate that the said agreement is a loan agreement as tried to be made out at this stage. The agreement specifically mentions the flat purchasers and builders, payment of consideration, description of the flat, the date of delivery of possession by the builders and nowhere there is a reference made that it is a loan agreement. (v) Furthermore, except bare assertion on the part of the builders with regard to the said document, nothing is made available which would appear even reasonably probable to hold that the said document is an agreement of loan. On the contrary, if one reads the said agreement it would leave no doubt whatsoever that it''s an agreement for sale of flat by the builders to the complainant. (vi) The said agreement also clearly mentions, the complainant flat purchaser having paid Rs. one lakh towards the consideration. The said agreement also mentions the balance of Rs. 80,000/- was to be paid by the flat purchaser at the time of possession. As is the case, possession has not been handed over to the flat purchaser/complainant and thus there is a failure to discharge contractual as also statutory obligation by the builders which would certainly constitute deficiency in service within the meaning of Section 2(1)(o) of the Consumer Protection Act, 1986. The Point No. (ii) also stands answer in favour of the complainant. (vii) Since the flat purchaser succeeds in establishing the deficiency in service on the part of the builders, the O.Ps. herein, the consequence follows that the complainant/flat purchaser will be entitled to the reliefs as claimed in the matter herein. (viii) That being so, it will be legitimate as also reasonable to order the refund of the amount with interest as also compensation. Hence the following order : ORDER (1) It is held that O.Ps. are deficient in rendering services to the complainants. (2) The O.Ps. are ordered and directed to jointly and severally the sum of Rs. one lakh to the complainants with 18% thereon till realisation w.e.f. 1.6.1994. (3) The O.Ps. shall pay compensation jointly and severally to the complainants, quantified at Rs. 25,000/-. (4) The O.Ps. shall also pay jointly and severally cost to the complainants, quantified at Rs. 5,000/-. (5) Six weeks'' time to O.Ps. for the compliance. (6) Copies to be furnished to the parties and to the District Forum.

Complaint allowed.