RAJ RAJESHWAR NATH BHARGAVA vs SHEWALKAR DEVELOPERS (P) LTD.

NONE present on behalf of either appellant or the respondents. This is the consistent position in the past. On three occasions; it is noticed, under our directions, office of this Commission has intimated the dates of final hearing of the appeal to the parties. However, there is no response. The matter was before us on 28.9.2000 and 28.2.2001 for final hearing and on which dates none apeared and, therefore, matter was adjourned to 28.9.2001. On that date also none appeared and the matter was adjouned to 22.1.2001. Thereafter on 18.4.2001, 13.9.2001, 19.3.2002 and 28.8.2002, on all these dates, none remained present, despite intimating the dates of hearing.

THE consumer dispute is pending since 1994, initially before the District Forum, Nagpur and since 1996 before this Commission and the reasons for the same are that all the parties are not serious and diligent in prosecution. The Consumer Protection Act, 1986 obliged the Forum to dispose of the consumer dispute with expeditiously. Recently the Hon''ble Supreme Court of India, in the case of Dr. J.J. Merchant v. Shrinath Chaturvedi, III (2002) CPJ 8 (SC)=IV (2002) SLT 714=(2002) CTJ 757, dated 12.8.2002, has taken very serious note of the fact that the Consumer Fora established under Consumer Protection Act, 1986 have not been ensuring speedy disposal of consumer disputes and they adjourn the matters with easiness on just demand. The Apex Court has strongly deprecated the said practice.

In the circumstances, we are proceeding to dispose of this appeal on consideration of the material as obtained in the matter herein. We have requested Mr. P.C. Marpakwar-Advocate to assists as amicus curie, in the matter. He was made available a set of appeal paper book.

(HEREINAFTER for brevity''s sake appellant is referred to as ''Flat purchaser'' and respondents as ''Builders''). The flat purchaser is the appellant in this case who is the original complainant and although the findings as recorded by the District Forum in impugned order of this appeal are in favour of the flat purchaser, yet he is required to approach this Commission by filing this appeal against the said order. On consideration of material available before us and in particular, on and after going through the impugned order and grounds of appeal as set out in the memo of appeal, the flat purchaser is justified in filing of this appeal as pointed out hereinafter.

FEW relevant facts : This is a dispute of the usual nature between the flat purchaser and the builder, the deficiency in services alleged against the builder are also a common nature and usual type. That is to say, despite the flat purchaser paying entire amount of agreed consideration of the flat, there is refusal on the part of the builder to deliver the possession and demanding extra amount towards the escalation cost and the payment of escalation being made condition precedent for handing over the possession. The District Forum considered the rival contentions of the parties has held rightly, builder being deficient in rendering the service vis-a-vis the flat purchaser. The District Forum has also held the payment towards alleged escalation of the cost of the flat was the distinct issue and cannot be mixed up with the performance of contractual obligation. Further it has clarified that the builder would be at liberty to adopt their remedy in that behalf. Notwithstanding, the District Forum has passed an order in its operative clause, which for sake of proper appreciation is reproduced herein below to have proper idea thereof. It would be noticed from the reproduced paragraph of the operative clause of the order that the District Forum was fully convinced and satisfied that the builders were deficient in rendering service. They have received the entire consideration from the flat purchaser and yet as agreed, the possession of the flat was not made over to the builder.

THAT being so, as provided under Section 14(1) of Consumer Protection Act, 1986, it ought to have or either it was under statutory obligation to issue an order to the opposite party directing him to do various things as enumerated in Sub-clauses (a) to (i) of the said Act. Sub-clause (d) thereof postulates award of compensation for any loss or injury suffered, while Sub-clause (e) thereof provides for removal of the defects or deficiency in the service in question.

HAVING appreciated the factual aspects in this matter in a proper perspective, there is obvious failure on the part of the District Forum to pass appropriate order under Section 14(1) of Consumer Protection Act, 1986 for remedying the deficiencies vis-a-vis, flat purchaser. In any event, if the deficiency in service was established and in this case, it has, as provided in Sub-clause (e) of Section 14(1), it would have taken steps to grant the appropriate relief in the circumstances to the complainant.

It would be noticed that, the complainant has claimed the possession of the flat and he has made strong grievance about the delayed possession, which the builders have agreed to have 1.11.1994.

THEREFORE, taking into consideration all these facts, we are of the view that, proper order in the circumstances would be that the builder should be ordered and directed to hand over the possession of the flat in question to the complainant as per the Agreement between the parties and for delayed possession, which would constiture deficiency in service, payment of adequate compensation. We do not appreciate the manner in which the District Forum has directed itself in passing the order, as appearing in the operative part thereof reproduced hereinabove, which did not satisfy the complainant/flat purchaser, who has succeeded in it. The Consumer Forum which exercises statutory power and judicious authority, must ensure, in discharge of their duties in settlement of consumer disputes, which would result in giving benefit and justice to the consumer litigants.

THAT being so, we are allowing this appeal to the extent of operative clause of the impugned order of this appeal and substitute our order as under : ORDER 1. The findings of the District Forum holding builders/opposite parties deficient in rendering services to the complainant/flat purchaser, are upheld. 2. The opposite parties/builders are ordered and directed to hand over the possession of the flat to the complainant/flat purchaser after completion of the construction in all respects and making it fit and suitable for occupation within 8 weeks of the receipt of the order herein. 3. The builders shall pay interest at the rate of 18 per cent per annum on the sum of Rs. 4,50,000/- for delayed possession of the flat with effect from 1.11.1994 till the handing over of the possession. 4. Since the interest has been awarded at the rate of 18 per cent per annum, no separate award is made as compensation. 5. In the event, opposite parties/builders fail to hand over the possession as ordered above vide Clause No. 2, the opposite parties shal refund the amount of Rs. 4,50,000/- to the complainant with interest at the rate of 18 per cent per annum from the date of payment i.e., 1.11.1992 towards the price, till realization. 6. The opposite parties shall also pay compensation to the complainant an amount of Rs. 50,000/-. 7. The appeal herein stands disposed of with no order as to costs. 8. Office shall furnish the copies of the order to the parties. 9. We record and appreciated over the assistance extended by learned Advocate P.C. Marpakwar. Appeal disposed of.