ONKAR SHANKARRAO SHINDE vs FATEHPURIA CONSTRUCTIONS

THIS complaint has been filed together by there complainants against the builders M/s Fatehpuria Constructions. The complainants jointly alleged that they had hired the service of opposite party for construction of the flats each for them on plot No. 133 in Pande Layout in Nagpur Town. The complainants were the owner of the plot and had their shares in the land. As against the value of their shares, opposite party agreed to allot the flats to complainant No. 1 for a consideration of his undivided share in the land of Rs. 85,000/-, complainant No. 2 for a consideration of her undivided share of Rs. 1,70,000/- and complainant No. 3 for a consideration of his undivided share of Rs. 85,000/-. The complainants alleged that they had entered into agreement with opposite party on 3.11.1987. Under the terms of the agreement, the flats were to be placed in possession of the complainant within 12 months from the date of agreement. The opposite party also agreed in para 10 of the agreement that if he fail Is to place the complainants in possession, the penalty of Rs. 500/- per month for the delay in giving possession will be paid to the complainants Nos. 1 & 3 and Rs. 1000/- per month to complainant No. 2. The complainants alleged in this complaint that till the filing of this complaint i.e., 12.10.1993, the flats were not fully constructed and thus there has been inordinate delay to hand over the possession of the flats to complainants. The complainants therefore alleged the serious deficiency in the service of opposite party .and claimed Rs. 50,000/- each towards compensation. In addition to above, the complainants have prayed for possession of their respective flats, cost for completion of incomplete work and also claimed interest. Thus, there is total claim of Rs. 5,84,000/- made in this complaint.

THE opposite party filed its written version dated 11.1.1994. Inter-alia, opposite party raised the preliminary objection about the maintainability of this complaint, on the grounds that this is the transaction of sale of property for a fixed consideration and therefore this consumer dispute is not maintainable under the Consumer Protection Act. We do not agree with this contention for the simple reason that the agreement dated 3.1.1987 executed between the parties. In Paras-3-a, sb & c, is clearly mentioned that the complainants will not invest any amount in the development and construction of the flats, but in lieu of their shares in the said plot for a total consideration of Rs. 5,10,000/-. THE opposite party has agreed to give the said consideration in the form of the flats of different dimensions and value for Rs. 85,000/-, Rs. 1,75,000/- and Rs. 85,000/- to the complainants Nos. 1, 2 & 3, respectively. Thus, the terms and conditions of the agreement clearly spelt out the hiring of service of opposite party by the complainants for the development of their flats and for the construction of the flats. Besides the area occupied by the aforesaid three flats, the opposite party was free to construct and sale the rest of the flats to different persons. THErefore, it is very apparent that the complaints hired the service of opposite party for construction of the flats. In view of the decision of Supreme Court of India in the case of Lucknow Development Authority v. M.K. Gupta, [III (1993) CPJ 7 (SC)=1993 C.R. (Constn.) 5]. THE transaction in question is fully covered under the provisions of C.P. Act and hence this Commission has jurisdiction to decide this consumer dispute on the allegations of deficiency in the service of opposite party. Merely because there is agreement for development and sale of the property, this jurisdiction of this Commission cannot be restricted. Another contention raised by opposite party is about the limitation. According to opposite party, the agreement is dated 3.11.1987 and the flats were completed on or before 3.11.1988 and therefore the complaint was filed beyond the limitation. This objection is also meaningless inasmuch as the cause of action still survives as the complainants are not placed in possession of the flats and the construction work is also incomplete.

The opposite party having admitted the contents of paras 1, 2, 3, 4 &5. The only point that survives for consideration is whether there are deficiencies in the promised service by the opposite party. It is very a/pparent the allegations made by the complainants that the flat not yet fully constructed by opposite party. There is other circumstance which proves the deficiency is that the date of hearing on 29.3.1994, Shri Kulkarni, the learned Advocate appearing for opposite party informed this Commission that he will peruse opposite party to get three flats fully constructed as per the specification within the per se three months and place the complainants in possession. This circumstance crystalised the issue that the construction of the flats were incomplete and the complainants were not placed in possession. Thereafter on the next date of hearing none appeared for opposite party and therefore we proceeded ex-parte against opposite party. Finally on 6.10.1994 we heard Smt. Chiddarwar, the learned Advocate for complainant. She has filed the affidavit of complainant No. 1 and stated that opposite party has miserably failed to fulfil the undertaking given before this Commission to complete the construction and place the complainants in possession, whereas opposite party remained absent.

CONSIDERING the aforesaid facts and circumstances, we are fully satisfied that there has been deficiency in the service of opposite party viz. incomplete construction and not giving possession to the complainants. The losses caused to the complainants are very apparent. There has been inordinary delay in placing the complainants in possession even after filing of this complaint. The complainants therefore deserves compensation for the delayed possession. We, therefore, pass the following order: ORDER Complaint is allowed. The opposite party viz. M/s. Fatehpuria Construction, Nagpur is directed to hand over possession of the respective flats to each complainant as it is and where it is basis within 30 days from the receipt of this order. The complainants are at liberty to get the incomplete constructions work completed strictly in accordance with the terms of the agreement, and specification and maintain the faithful accounts for the same. The complainants are also at liberty to claim the amount spent for the incomplete construction through the legal process if so advised. The opposite party also shall pay to complainants Nos. 1 and 3 interest at the rate of 18% per annum by way of compensation over the amount of Rs. 85,000/- from the date of payment till the complainants are actually placed in possession. Similarly, complainant No. 2 shall pay interest at the rate of 18% per annum over the amount of Rs. 1,70,000/- from the date of payment till the complainant is placed in possession. In addition to above, each of complainant be paid Rs. 1,000/- towards costs. The rest of the claims of the complainants are rejected. Complaint allowed with costs.