NIRMAL DEVRAJ PUNMIYA & 2 ORS vs RAMKRISHNA GANGADHAR SHANBAG

Delay condoned.

By this First Appeal, under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"), Partners of a Real Estate Developer Firm, namely, M/s Manibhadra Enterprises & Developers, the Opposite Parties in the Complaint under the Act, call in question the correctness and legality of the order dated 29.10.2015, passed by the Maharashtra State Consumer Disputes Redressal Commission at Mumbai (for short "the State Commission") in Complaint No. RBT/CC/15/444. By the impugned order, the State Commission has directed the Appellants herein to pay to the Respondent/Complainant a sum of 37,61,124/- together with interest @ 9% p.a. from January, 2006 till realization, on or before 31.12.2015. In case of failure on the part of the Appellants to comply with the said directions within the stipulated period, the State Commission has also directed the Registrar (Legal) to verify the fact and furnish a report to it for proceeding against the Appellants accordingly under Section 27 of the Act.

At the outset, it may be noted that it is the second round of litigation. Previously, in the first round, by way of First Appeal No. 212 of 2009, the matter was carried up-to this Commission by the Complainant. The said Appeal had been filed against the order dated 18.04.2009, passed by the State Commission in original Complaint Case No. 9 of 2006. By the said order, while partly allowing the Complaint, the State Commission had directed the Appellants to pay to the Complainant sums of 3,06,000/- and 25,000/- as rent and compensation for mental agony respectively, within 45 days, with a default stipulation of payment of interest @ 18% p.a. till realization. The State Commission had also awarded litigation costs of 10,000/- in favour of the Complainant. Insofar as the claim for compensation equivalent to the price of the flat was concerned, the State Commission had observed that since it was related to and based upon alleged breach of the terms of the agreement, the same could not be looked into. Further, as regards the claim of 40,50,000/-, towards arrears of compensation for 81 months @ 50,000/- per month in terms of agreement dated 12.08.1995, the State Commission had observed that since the agreement was disputed and allegation of fraud, etc., had been levelled by the Appellants, the issue was complex and hence could not be settled before the Consumer Fora. On consideration of the rival submissions of the parties, this Commission, vide order dated 12.05.2015, allowed the aforesaid Appeal, preferred by the Complainant and remanded the matter back to the State Commission holding thus:- " In our view, bearing in mind the uncertainty about the completion of the building, because of pending litigation between the Respondents and the Legal heirs of the owner of the adjacent property, without going into the question of the alleged interpolation on the agreed rate of compensation, it would be just and fair to award compensation to the Appellant, in lieu of the flat, on the basis of the market price of flat as on 08.04.1999, the date on which, according to the Respondents, the possession of the flat was to be delivered, by enhancing the said amount by Comparative Housing Price Index, issued by the National Housing Board, as on the date of filing of the complaint with simple interest @ 9% p.a. from the date of filing of the complaint till realization. The amount so arrived and payable to the Appellant, would be in addition to the amount already awarded by the State Commission."

It appears that the order has attained finality as no other order has been brought to our notice.

The afore-extracted view was arrived at by this Commission and a limited remand was made to the State Commission on the following set of facts:- 5.1 The Complainant was a tenant of one Late Laxman Dhondo Phadake, owner of the land and building, bearing Tika No.3, CTS No. 276-B/2, situated at Mohammed Ali Road Jawahar Baug, Thane. A room admeasuring approximately 324 sq. ft. carpet area on the ground floor of the said building was in his occupation. On 03.03.1995, an Agreement for Sale-cum-Development of the said land was entered into between the Appellants, through Appellant No.1, and the owner of the land. On 15.12.1997, a registered Irrevocable Power of Attorney was also executed by the said owner in favour of Appellant No.1, vesting onto him several rights to do any act, deed and thing, as may be required to give practical effect to the intents of the aforesaid Development Agreement and to deal with the tenants, residing in the said Building. As per the aforesaid documents, the Appellants were required to develop the said property by demolishing the existing structure standing thereon and constructing a new building consisting of flats and shops, to be sold on ownership basis to the prospective purchasers.

5.2 According to the Complainant, Appellant No.1 had agreed to sell to him one flat on the second floor, admeasuring 516 sq. ft. built up area, in the new building, to be constructed on the said land, on ownership basis for a concessional consideration of 1,00,000/-. The said amount was to be paid as consideration for the additional area, i.e. area over and above the tenanted premises, as the existing built up area admeasuring 324 sq. ft. was to be given to the Complainant free of cost, in lieu of his surrendering the tenancy rights. Accordingly, on 12.08.1995, a Purchase Agreement was entered into between them, inter alia, stipulating delivery of possession of the new flat within 24 months from the date of taking over the possession of old tenanted premises, with provision for payment of 50,000/- per month by the Appellants to the Complainant by way of compensation/damages in case the deadline was missed.

5.3 On 07.07.1996, the Appellants entered into a Development Agreement with the owners of neighbouring plot belonging to Mrs. Vijaya Ramachandra Phadake, the Sister-in-Law of the said Laxman Dhondo Phadake, for development of the property in question by amalgamating the property belonging to Mrs. Phadake. It appears that after the plans were sanctioned by the Municipal Corporation, the Appellants started construction work. However, the construction work above the plinth level had to be suspended as the Municipal Corporation refused to take cognizance of the unregistered Power of Attorney executed by the owner of the neighbouring plot, i.e. Mrs. Phadake. They were advised to have the Power of Attorney registered, but before the needful could be done, Smt. Phadake passed away, giving rise to litigation between her legal heirs.

5.4 It is also the case of the Complainant that on 20.12.1996, another Agreement, providing for rent of 3,000/- per month for the temporary accommodation and security deposit of 30,000/- by the Appellants to the Complainant, was also entered into between them. On 10.01.1997, Appellant No.1 had executed an Indemnity Bond, undertaking to indemnify the Complainant if there was any failure on the part of the Developer Firm to comply with the agreed terms and conditions.

5.5 As per the terms and conditions of the aforesaid Purchase Agreement, the Complainant had vacated the tenanted premises on 08.04.1997 and the Appellants paid to him the rent of 3,000/- for the temporary accommodation between the period April, 1997 and February, 1999, besides security deposit of 30,000/-. Thereafter, as asked by the Appellants, the sums of 30,000/-, paid by the Appellants to the Complainant as security deposit and 25,000/-, paid by them subsequently, were adjusted towards the rent up-to the month of September, 2000, whereafter, the Complainant did not receive any amount from the Appellants.

5.6 Since the Appellants had failed to deliver possession of the flat within the stipulated time and had also not paid compensation @ 50,000/- per month as well as rent @ 3,000/- per month for the alternate accommodation after September, 2000, the afore-noted original Complaint came to be filed before the State Commission. The Complainant had prayed for directions to the Appellants to deliver possession of the allotted flat within fixed limited time; pay compensation as agreed, under the Sale/Purchase Agreements, towards the damages, along with arrears towards the agreed rent for temporary accommodation, shifting charges, cost of litigation or in the alternative, compensation @ 3,500/- per sq. ft. in lieu of the said flat, along with arrears and dues of agreed rent for the temporary accommodation along with compensation for failure to complete the construction within the stipulated period.

As afore-noted, the first round of litigation in First Appeal No. 212 of 2009, preferred by the Complainant, culminated in the order dated 12.05.2015 passed by this Commission, the afore-extracted direction was issued. In furtherance of the said order, the State Commission took up the matter again and by the impugned order has computed the total amount of compensation payable to the Complainant at 37,61,124/- observing thus:- "(6) There is no dispute raised on behalf of the opponents that the market price as on 08.04.1999 was Rs.1850/- per sq. ft. This price is to be enhanced by a comparative housing price index issued by National Housing Board as on filing of the complaint. Complaint is filed in month of January, 2006.

(7) It is submitted and not controverted at Bar, though opponents advocates made some other calculations to reduce the claim that, the price index issued by National Housing Bank as per National Banking Act corresponds to and accepted as price index issued by the National Housing Board.

(8) As on January, 2006, the price index issued by National Housing Board as per complainant was 3.94. By a simple mathematics, market price of the flat as on 08.04.1999 of Rs.1850/- per sq. ft is to be multiplied by the factor 3.94 which comes to Rs.7,289/-. This basic price of the flat is to be multiplied to the sq. ft. area for deriving at basic cost which comes as [Rs.7,289/- x 516 sq. ft. = Rs.37,61,124/-]. Rs.37,61,124/-. This amount carries the interest @ 9% p.a. from the January, 2006 till its realization. For the purpose of clarification, since we are granting time to the opponents till December 2015 we hereby give following calculation assuming that opponent will take full term upto December, 2015 for making payment of the decretal sum that is to say principal sum of Rs.37,61,124/- and interest @ 9% p.a. for complete 10 years i.e. amounting to Rs.71,46,135/- [Rs.37,61,124/- + interest Rs.33,85,011/- (interest from January, 2006 to December 2015)."

Hence, the present Appeal.

Having heard Ld. Counsel for the parties, we are of the opinion that order impugned in the Appeal does not suffer from any illegality, factual or legal.

As stated above, the order dated 12.05.2015, passed by this Commission in First Appeal No. 212 of 2009, having attained finality, the only issue to be decided by the State Commission was to compute the quantum of the compensation payable to the Complainant in lieu of the Flat, on the basis of its market price as on 08.04.1999, the date on which the possession of the flat was to be delivered to him. In order to avoid any controversy in future with respect to the basis for such compensation, it was directed that the market price shall be determined on the basis of the Comparative Housing Price Index, issued by the National Housing Board, as on the date of filing of the complaint. Having carefully perused the compensation made by the State Commission in the afore-extracted paragraph 8 of its order, we are of the view that the amount determined to be payable to the Complainant is in accord with the direction issued by this Commission in its order dated 12.05.2015. We are unable to persuade ourselves to agree with the stand of the Appellants that the ready reckoner and prevailing market rate in the year 2006, as per the letter dated 25.06.2015, the compensation payable comes to 23,57,5291/- as against the amount of 37,61,124/- computed by the State Commission. The basis adopted by the State Commission in arriving at the said amount is sound and cannot be said to be illegal. As regards the plea that the flat, with area of 516 Sq. Ft., was to be provided to the Complainant on his paying to the Appellants a sum of 1,00,000/-, now sought to be raised in the Appeal, suffice it to say that no such plea having been urged and dealt with in the order dated 12.05.2015, it is too late in the day to permit the Appellants to rake up this controversy at this stage. In view of the above, the appeal fails and is dismissed accordingly, leaving the parties to bear their own costs.