Om Khemraj Gahlot vs Krishnat P Bagade

BOTH these revision petitions arise out of one order of District Forum as well as State Commission; hence, decided by common order.

THESE revision petitions have been filed by the petitioner against the order dated 7.5.2008 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ''the State Commission'') in Appeal No. 2044/06 Om Khemraj Gahlot Vs. Krishna P. Bagade and Anr. by which, while allowing appeals partly, order of District Forum allowing complaint was modified.

BRIEF facts of the case are that complainants/respondents filed two Complaint Nos. 232 and 290 of 2003 before District Forum. In Complaint No. 232 of 2003, complainant/respondent booked Flat No. B -302 measuring 340 sq. ft. carpet area for Rs.4,60,000/ - and agreement was executed on 11.5.2001. Complainant paid Rs.4,50,000/ - to OP/petitioner and possession of the flat was to be delivered within 18 months from the date of booking. At the time of casual inspection, complainant found area of flat as 308 sq. ft. It was further submitted that inspite of receipt of substantial amount of consideration, OP has not delivered possession of the flat. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. In Complaint No. 290 of 2003, complainant booked Flat No. B -103 measuring 338 sq. ft. for Rs.4,56,686/ - and agreement was executed between complainant and OP to give possession within 18 months. Complainant paid full amount. He further alleged that he paid Rs.1,28,500/ - in cash excess to the OP. At the time of casual inspection he found that Flat was measuring only 308 sq. ft. and possession has not been given to him. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted both complaints and denied receipt of Rs. 1,28,500/ - in cash as excess amount from complainant Gulab Dhanawade. It was further submitted that he received Rs.3,50,000/ - from complainant Mr. Krishnat Pandurang Bagade. It was further denied that area of the flat has been reduced. Learned District Forum after hearing both the parties allowed both the complaints by one order and directed OP to pay interest on received amount @ 15% p.a. till actual delivery of possession and further directed to refund Rs.43,286/ - in Complaint No. 232 of 2003 and Rs.40590/ - in Complaint No. 290 of 2003 and further allowed Rs.50,000/ - for mental agony, Rs.5,000/ - as cost of the litigation to both the complainants. Appeals filed by OP were partly allowed by learned State Commission vide impugned order and learned State Commission quashed order of refund of Rs.40590/ - to the complainant in Complaint No. 290/2003 and reduced amount of Rs.43,286/ - to Rs.21,643/ - in Complaint No. 232 of 2003 and further directed complainant in Complaint No. 232 of 2003 to pay Rs.10,000/ - to OP on delivery of possession of flat and rest of the order of District Forum was affirmed against which these revision petitions have been filed. Earlier petitioner filed one revision petitioner challenging both the orders, but as per direction of this Commission on 12.12.2013, petitioner filed separate revision petition.

HEARD learned Counsel for the petitioner and authorized representative of respondent and perused record.

LEARNED Counsel for the petitioner submitted that as per Commissioner''s report, area of both the flats was as per agreement; even then, learned District Forum committed error in allowing interest on deposited amount till delivery of possession and in awarding compensation and cost and learned State Commission further committed error in dismissing appeals on these counts. It was further submitted that OPs had already taken possession of flats illegally and made necessary improvements; hence, revision petitions be allowed and impugned order be set aside. On the other hand, authorized representative of respondents submitted that they have not taken possession of the flats so far and order passed by learned State Commission is in accordance with law; hence, revision petitions be dismissed.

PERUSAL of impugned order reveals that during pendency of appeal, with the consent of both the parties, learned State Commission appointed Town Planner of Navi Mumbai Municipal Corporation as Court Commissioner to ascertain carpet area of the flats. It was further observed that report of Court Commissioner was balanced one and after complete reliance on the report, impugned order was passed. Authorized Representative of respondents could not substantiate their argument that report of Court Commissioner was not proper and at the same time, they have not challenged order of State Commission. In such circumstances, report of Court Commissioner is to be given due weightage.

AS far Flat No. B -103 is concerned; total carpet area of the flat to be given was 338 sq. ft. whereas, as per Commissioner''s report it was found to be 339.37 sq. ft. Learned State Commission also observed that purchaser had received 1 sq. ft. more area than the agreed carpet area and rightly quashed order of District Forum directing to refund Rs.40590/ - to the complainant. As far Flat No. B -302 is concerned, as per agreement, 340 sq. ft. of carpet area was to be given, but as per report of Court Commissioner, area of flat was 322.80 sq. ft. Court Commissioner further observed that Plaster of paris (POP) was applied to all the walls except the walls of bathroom and one wall of kitchen platform. It was further mentioned that wall in living room along with the side of flowerbed was also constructed. Thus, it appears that some changes have been made by the complainant or by some other person at his request as no builder would apply POP on the walls and change walls without any agreement, particularly, when same construction was to be built on all the floors. In such circumstances, it can be held that on account of application of POP on the walls and on account of reconstruction of wall in living room, carpet area of flat might have reduced by 17.20 sq. ft. and in such circumstances, it cannot be held that OP reduced carpet area from the carpet area agreed to be given and no deficiency can be imputed on the part of OPs with respect to reducing carpet area of the flats.

ONCE we come to the finding that carpet area of the flat does not stand reduced, there was no occasion for grant of compensation and cost to the complainants. Learned State Commission while observing that in Complaint No. 290 of 2003 complainant received 1 sq. ft. more area; even then, confirmed order of District Forum allowing compensation and cost to the complainant which is apparently not correct. In such circumstances, order directing grant of compensation and cost to the complainant is liable to set aside.

AS far interest on deposited amount from the date of deposit till delivery of actual possession is concerned, petitioner has submitted in memo of revision petition that complainants obtained key of the flats by misrepresentation for getting interior work done and they retained keys forcibly. It has further been mentioned that complainants had made alterations in the walls and applied POP. Perusal of Commissioner''s report also reveals that some structural changes have been made in one flat and POP has also been applied. In such circumstances, it can be inferred that complainants have already taken possession of flats from OP and complainants are not entitled to get any interest on deposited amount from OP and this direction of District Forum upheld by State Commission is also liable to struck down.

I do not find any deficiency on the part of OP in reducing carpet area of the flats and it appears that complainants in the garb of reduced area did not take possession of the flats legally which they ought to have taken in time. In such circumstances, revision petitions are to be allowed.

CONSEQUENT LY , revision petitions filed by the petitioner are allowed and impugned order dated 7.5.2008 passed by State Commission in Appeal No. 2044/06 Om Khemraj Gahlot Vs. Krishna P. Bagade and Anr. and order of District Forum dated 31.8.2006 in Complaint No. 232 of 2003 - Krishnat Pandurang Bagade Vs. Om Khemraj Gahlot and in Complaint No. 290 of 2003 Shri Gulab Sahebrao Dhanawade Vs. Om Khemraj Gahlot are set aside and complaints stand dismissed with no order as to costs.