HIRA CONSTRUCTION vs LATE SAVITRIBAI DATTATRAY KHANDAGALE

WE are proceeding to dispose of this appeal at the stage of its admission itself on hearing the learned Advocates for the parties as above and on perusal of the material available in the appeal paper book.

RESPONDENTS are present through their Advocate in response to the notices before admission issued by us on 18th August, 2003. (For brevity''s sake ''appellants'' arer hereinafter referred to as ''builders'' and respondents as ''Flat Purchasers''). The builders have filed this appeal against the order dated 22nd April, 2003 passed by District Forum, Raigad holding the builders deficient in the matter of delivery of possession of flat in question and so holding has ordered the builders to pay compensation of Rs. 70,000/- plus pay a sum of Rs. 100/- per day as an additional compensation.

It is noticed that one Savitribai Dattatray Khandagale since deceased was the tenant of premises in old building,which the builders took over for development by constructing a new building.

THE arrangement was reached between the builders and the deceased flat purchaser whererby builders agreed to provide premises to the deceased flat purchaser in lieu of and in consideration of surrending the old premises. It so transpired that the builders proceeded in the construction and building also became ready. However, dispute arose between the deceased flat purchaser and her brother-in-law Mr. Shivram Bama Khandagale, which was carried to the Civil Court being Suit No. 65/1992. It appears that the said Shivram Khandagale also put his claim over the premises in question. The said suit it appears came to be dismissed on 29th February, 1996.

THE deceased approached the District Forum alleged deficiency of non-handing over the possession, etc. During the pendency of the dispute she died and the present respondents have been brought on record as legal heirs and representatives being sons and married daughter. The builders appeared before the Distrtict Forum and filed the written statement highlighting the flat that because there was dispute between the deceased flat purchaser and her brother-in-law Shivram Khandagale and pendency of the suit in Civil Court, possession could not be made over. We, however find there is no proper advertence by the District Forum in the impugned judgment of the contents of the written statement of builders which was indeed necessary in view of recent judgment of the supreme Court in the case of Charan Singh v. Healing Touch Hospital and Others. reported in the Supreme Court Cases III (2000) CPJ 1 (SC)=VI (2000) SLT 867=(2000) 7 SCC 668, wherein the Apex Court has clearly laid down that the Consumer Fora while resolving the consumer disputes must do so by applying well settled principles of law and on consideration of relevant material placed before it and its order should be reasoned order reflecting that there is detailed advertance to the relevant material placed before it. However, sadly this is wanting in the matter herein.

WE may make reference to the correspondence prior to the complaint, in particular builders'' Advocate notice dated 23rd June, 1997 to the Advocate of the complainant. Copy whereof is at page No. 32 to 34 in this appeal paper book.

IN the said notice, there is a clear indication given that possession of the flat could not be made over because of the pendency of the civil dispute between the deceased complainant and her brother-in-law Shivram Khandagale. The said notice also contains offer that the builders had no objection and they are ready and willing to hand over the possession as per their arrangement. It is strange that even District Forum did not find it necessary to refer to the contents of the said notice.

Since the deficiency was alleged against the builders, it was necessary for the District Forum to consider whether in the facts/situation, the conduct of the builders-O.Ps. herein or action or omission on their part was activated and motivated with deliberate intention to deprive the complainant-flat purchaser of the benefits of the arrangement between them. Section 2(1)(g) of Consumer Protection Act, 1986 defines deficiency and it is necessary to take into consideration whether there were factors which prevented the O.P. from taking certain action, if such circumstance exists then the same would not amount to deficiency in services. It is undisputed position that there was conflicting claimant to the flat in question leading to the filing of the suit in Civil Court.

THEREFORE, we have our reservations about the findings as rendered by the District Forum totally ignoring and overlooking the case as set forth by the builders in defence. However, across the learned Advocate for the builders-appellants stated that the flat earmarked is ready and builders are ready and willing to hand over the possession to the org. complainants. However, he stated that findings rendered by the District Forum that he being deficient and award of compensation of Rs. 70,000/- as also Rs. 100/- per day as a recovering compensation was not justified. We find substance in the submission as made. Particularly when we have reached to the conclusion that the findings rendered by the District Forum holding builders deficient in services were not justified. All said and done, we partially allow this appeal and pass the order as under: ORDER 1. Builders-appellants shall hand over the possession of the flat in question to the respondents-flat purchasers within 3 weeks from today i.e., on or before 18th March, 2004 2. In view thereof, order of compensation of Rs. 70,000/- vide operative Clause No. (2) stands set aside as also the payment of compensation @ Rs. 100/- as provided in operative Clause No. 4(a) also stands set aside. 3. Order of cost of Rs. 2,000/- stands confirmed. 4. If the possession is not made over within the stipulated period as above by the O.Ps.-builders, we order that it will be open to the complainants-flat purchasers to take necessary action for execution of the order of possession as above which would get merged into the order of the District Forum impugned in this appeal. 5. In addition, on such failure, builders-O.Ps. shall be liable to pay compensation to the complainants-flat purchasers quantified at Rs. 30,000/-. 6. As far as this appeal is concerned, no order as to costs. 7. Copies to be furnished to the parties.

Appeal partially allowed.