Tulshiram Dadu Thorat vs Bappanada Narshimhan

REVISION petition nos. 600, 1306 and 1307 of 2013 are against the same impugned orders of the Maharashtra State Consumer Disputes Redressal Commission, (''the State Commission'') dated 20.09.2012 in Appeal no. A/ 08/ 1288, A/ 08/1579 and A 08/1288. Since all the three revision petitions emanate from the same impugned order, it is proposed to dispose of all three revision petitions by a common order. The facts of the case are taken from RP no. 600 of 2013.

THE facts of the case are that Shri Bappanada Narshimhan respondent herein was the proprietor of M/s Annapi Construction Co. The respondent had agreed to sell the flat no. 1504 ad -measuring 570 sq ft. situated on the 15th floor of the Building known as Mahesh Tower, situated at Bhaktti Dham Complex of the respondent for Rs.5,13,000/ -. Accordingly, an agreement for sale of the flat was entered and executed on 01.10.2001 between the respondent and the petitioner herein. In accordance with the terms and conditions of the said agreement for sale, the petitioner has paid from time to time, a sum of Rs.4,82,400/ - towards the cost of the said flat to the respondent. The details of the amount paid are as follows: JUDGEMENT_124_LAWS(NCD)4_2015.htm

THE respondent vide his letter dated 15.02.2003 had demanded the amount of instalment to be paid up to on completion of 2nd slab. However, thereafter, the respondent did not inform anything to the petitioner about the progress of the construction work. The petitioner enquired about the progress of construction work by sending various letters to the respondent and requested him to get registered the "Agreement of Sale" of the said flat. However, the respondent did not give any response to it. When the petitioner himself went to see the progress of construction work, neither the respondent nor the officer of the respondent gave any information about the progress of construction work. As per the agreement for sale, entered and executed by and between the respondent and the petitioner, it was agreed by the respondent to hand over the possession of the said flat by completing the construction work on or before 31.10.2003. The time of handing over the possession of the flat, mentioned in the agreement, was the important condition of the contract. The respondent has not intimated anything to the petitioner about the progress of the construction work of the building. Similarly, the possession of the agreed flat was not handed over to the petitioner till 31.10.2003 as per the terms and conditions stipulated in the contract. Therefore, the petitioner wrote a letter dated 03.12.2004 to the respondent and requested him to hand over the possession of the flat and if the respondent fails to hand over the possession of the agreed flat it was intimated to the respondent that petitioner will have no alternative but to initiate legal action against the respondent. The respondent replied the above stated letter through his Advocate''s letter dated 06.12.2004 and intimated the petitioner that Shri Laxman Dhanji Shinghni, the person who had signed the agreement for the sale of the said flat, has left the services of the respondent and whereabouts of the said Shri Laxman D Shindhani was not known to the respondent. The respondent vide said letter intimated to the petitioner that to resolve the grievances of the petitioner, the petitioner may meet the respondent with the copies of the relevant documents. Petitioner vide his Advocate''s letter dated 31.12.2004 replied to the said letter of the respondent and intimated the respondent that he was ready to give details of the payment made from time to time, if the respondent intimated the fixed time and place of the meeting. However, thereafter there was no communication from the respondent. Under such circumstances the petitioner served a notice upon the respondent through his Advocate on 26.03.2005 and demanded the possession of the agreed flat as per the terms and conditions of the said agreement for sale or to pay appropriate compensation, if the respondent was not in a position to give the possession of the agreed flat and demanded the compensation in lieu of the said flat, as per the prevailing market rate along with interest @ 21% on the said amount. In spite of receiving the said notice the respondent neither gave the possession of the agreed flat nor paid the compensation amount to the petitioner. Therefore, the petitioner has filed this complaint and requested to direct the respondent to hand over the possession of flat no. 1504 as stated in the agreement or to pay the compensation amount of Rs.28,30,376/ - to the petitioner.

INITIALLY the petitioner had filed the present complaint before the State Commission, Maharashtra. The State Commission returned the said complaint to the petitioner and ordered the petitioner to file the said complaint before the appropriate forum vide order dated 01.09.2005. After the said order, the petitioner has filed the said complaint before the District Forum, Suburban District.

THE respondent filed his reply on the complaint of the petitioner and denied conceding the demand of the petitioner and stated that though there was no deficiency in service of the respondent and they had not indulged in any unfair trade practices, even then intentionally to harass the respondent the petitioner had filed this complaint. Therefore, it was liable to be dismissed. The petitioner had filed police complaint against the respondent. On investigation, the police found that there was no negligence on the part of the respondent. Therefore, the police did not take any action against the respondent.

ACCORDING to the respondent, the petitioner was not a consumer. Therefore, the District Forum had no jurisdiction to entertain and try the complaint. Similarly, the issues raised and legal questions involved in the complaint were complicated in nature, and the District Forum should not try the matter. The agreement, on the basis of which the petitioner had filed the complaint, was not registered. Therefore, the complaint application should be dismissed. The petitioner had filed the complaint on a misunderstanding. The complaint was false and wrong hence, liable to be dismissed. Similarly, the complaint application was time barred and hence, liable to be dismissed. As per the contention of the respondent, the demand of the petitioner was out of the pecuniary jurisdiction of the District Forum, (demand of the petitioner means the compensation of Rs.28,30,386/ - demanded by the petitioner) and therefore liable to be dismissed.

ACCORDING to the respondent the person who has signed the agreement for sale was Mr Laxman Dhanji Shinghani, Developer, who was residing at 3/10 Moti Baugh, Nauroji Lane, Ghatkoper (W), Mumbai 400 086 and was not made a party to this complaint, therefore, the complaint was liable to be dismissed.

ACCORDING to the respondent, there was no agreement between the respondent and the petitioner. Present complaint was based on misunderstanding. The compensation cannot be demanded on the basis of market rate in respect of the building constructed under the slum eradication scheme. It had made clear by the State Commission in their order dated 01.09.2005 that the cost of the property mentioned in the complaint was less than 20 lakhs, and the petitioner has paid only Rs.4,82,000/ -. Therefore, the present complaint application was returned to the petitioner. However, the petitioner has demanded unreasonable high compensation.

ACCORDING to the respondent, out of the total amount of Rs.4,82,000/ - claimed to have been paid by the petitioner only Rs.2,97,000/ - was received by him and the amount of Rs.1,71,000/ - + Rs.14,000/ - was not received by him.

ACCORDING to the respondent, he owns many properties in Bhandup area and plans for construction of many buildings and had submitted to the concerned authority. Therefore, it was difficult for the respondent to give explanation on the contents of paragraph nos. 2 and 3 of the complaint application. However, the respondent denied all the allegation of the petitioner that respondent was deficienct in providing services.

PETITIONER cannot ask/ demand the possession of the flat because slum eradication authority has stayed on construction of building on the said plot of land. The respondent has denied the other allegations made in the complaint application by the petitioner and said that the complaint was liable to be dismissed.

THE District Consumer Disputes Redressal Forum, Suburban District, Bandra (East) Mumbai (''the District Forum'') vide its order dated 28.08.2008 while partly allowing the complaint observed as under: "It is observed that as per the agreement for sale dated 01.10.2001 the opponent had decided to sell flat no. 1504, ad -measuring 570 sq.ft., of 15th floor of Mahesh Tower Building situated at Bhaktti Dham Complex for Rs.5,13,000/ - to the complainant and in accordance of the said agreement the complainant had paid Rs.4,82,000/ - to the opponent. However, the opponent has not constructed the said proposed building. Therefore, the complainant cannot ask or demand the possession of the said flat from the opponent. Therefore, issue no. 2 is answered negative.

On this issue, if the opponent is not in position to hand over the possession of the agreed flat then the complainant has requested to direct the opponent to pay sum of Rs.28,30,386/ - as compensation for the loss caused. The complaint in paragraph no. 15 of the complaint has shown Rs.19,95,000/ - as the cost of the said flat, as per market rate prevailing, plus Rs.20,000/ - as other miscellaneous expenses totalling to Rs.20,15,000/ -. Similarly, the complainant has further demanded Rs.7,00,386/ - towards interest on the above said amount @ 12% per annum for the period starting from 31.10.2003 to May 2005 and Rs.15,000/ - towards the cost of litigation and Rs.1,00,000/ - towards compensation for loss caused thus totalling to Rs.28,30,286/ -. The opponent has denied the above said demand of the complainant to pay compensation for loss caused. The complainant has not submitted any documentary proof to show that the cost of the similar type of flat in the said area is Rs.19,95,000/ -. On this issue, the opponent had stated that due to the things, which are beyond his control, he could not construct the said building. Therefore, the opponent further states that the complainant cannot demand compensation. The opponent had decided to sell flat no. 1504 of 570 sq. ft to the complainant. However, the opponent cannot give the possession of the said flat to the complainant after constructing the said building. The complainant has paid Rs.4,82,000/ - to the opponent towards the cost of the said flat as per the said agreement for sale. The advocate of the complainant has demanded interest @ 21% per annum on the above said amount and in support of the said demand cited the judgment of State Consumer Commission of Kerala State viz. Gems K Dayniyal and others Vs Jailaxmi Buildings Pvt. Ltd.,2002 2 CPJ 150. In the above matter since the builder has not handed over the possession of the agreed flat within the stipulated time to the complainant, the Commission has directed the opponent to refund the entire money of the complainant along with interest @ 18% per annum to the complainant. As per the agreement for sale entered and executed by and between the opponent and complainant the possession of the agreed flat was to be given on or before 31.10.2003. It cannot be denied that since year 2003 to up till now there is terminus rise/ increase in the cost or price of the flats.

Considering all the above things, it is felt reasonable to refund the amount of Rs.4,82,000/ - which was paid by the complainant to the opponent to the complainant along with interest @ 18% per annum on it from 31.10.2003 plus Rs.1,00,000/ - as compensation for the loss caused to the complainant. Similarly, it is felt reasonable to pay Rs.1,000/ - towards the cost of litigation to the complainant. Therefore, the issue no. 3 and 4 are answered accordingly.

For the reasons stated above the complaint application is partially granted and accordingly, the order is passed as below:

Complaint application is partially allowed.

Opponent should pay to the complainant sum of Rs.4,82,000/ - along with interest @ 18% per annum on it since from 31.01.2003 till the date of payment of entire amount to the complainant.

The opponent should pay Rs.1,00,000/ - to the complainant towards the compensation for the losses caused and Rs.1,000/ - towards cost of litigation."

DISSATISFIED and aggrieved by the order of the District Forum, two appeals were filed before the State Commission one by the petitioner/ complainant as Appeal no. A/08/1288 and another by respondent/ opposite party as Appeal no. A/08/1579.

THESE two appeals takes an exception to an order dated 28.08.2008 passed in consumer complaint no. 383 of 2005 Tulsiram Dadu Thorat vs Mr Bappanand Narshimhan Proprietor M/s Annappi Constructions Co., by Additional Mumbai Suburban, District Forum. Not satisfied with the impugned order, the petitioner/ complainant Tulsiram Dadu Thorat preferred appeal no. 1288 of 2008 while respondent/ opponent Mr Bappanand Narshimhan proprietor of M/s Annappi Construction Co. preferred an appeal no. 1579 of 2008.

THE State Commission dismissed appeal no. A/ 08/1579 filed by the respondent/ opposite party and appeal no. A 08/1288 filed by the petitioner/ complainant was partly allowed. The State Commission held as under: "Forum considered grant of interest @ 18% per annum considering the escalation of the price of flats. As per the agreement dated 01.10.2001, per its clause 6, on default the builder could demand interest @ 21% per annum from the flat purchasers. Applying the same ratio, it would be just and proper to award interest @ 21% per annum on the amount directed to be refunded to the complainant. Forum did not consider this particular clause in the agreement. Therefore, we held accordingly and partly allowing the appeal of the complainant and finding no merit in the appeal of the respondent following order is passed:

Appeal no. A/08/1579 filed by the original opponent stands dismissed and appeal no. A/08/1288 filed by the original complainant is partly allowed;

In the impugned order, paragraph 2 of the operative part, rate of interest payable should be read as 21% per annum and that too from the respective dates of payments made as stated in paragraph 6 of the complaint viz.

S no. Receipt no. Date of Payment Cheque no. Amount in Rupees 1. ACC/MLD/SO/15 18.03.1993 013284 25,000/ -

ACC/MLD 24.10.1996 248603 1,65,000/ -

ACC/MLD 28.12.1996 254765 35,000/ -

NIL 14.10.2001 Cash 1,71,000/ -

ACC 11.02.2002 134361 57,600/ -

ACC 15.12.2002 188691 14,400/ -

Not issue 17. 02.2003 208921 14,400/ - TOTAL 4,82,400/ -

Rest of the order is maintained".

HENCE , the present revision petitions.

WE have heard the learned counsel for the parties and have carefully gone through the records of the case. Whereas the learned counsel for the petitioner states that the State Commission has committed an error in not granting specific performances dated 01.10.2001 when the execution and contains of the said agreement are proved or in alternative to direct the respondent builder to provide an alternate flat of similar dimensions in the same locality where the complainant, i.e., the buyer had booked the said flat along with 18% interest per annum on the amount paid by the purchaser (Appellant) in instalments, from the dated the OP required to give the possession of the agreed flat or compensate the purchaser (i.e., the applicant/ appellant) at the current market rate, if the respondent builder is not in position to give possession of the agreed flat.

THE District Forum and the State Commission committed an error in presuming that specific performance of the agreement was not possible and the compensation granted was sufficient to compensate/ satisfy the demand, legitimate right and losses likely to be caused to the applicant/ appellant -complainant instead of asking the respondent - OP to perform the said agreement for sale specifically.

THE District Forum and the State Commission, Maharashtra have committed an error in coming to the conclusion or wrongly came to the conclusion that since the respondent (i.e, the original OP) has not completed the construction work of the proposed building, and therefore the applicant complainant cannot seek/ demand possession of the agreed flat from the respondent (OP), i.e., the specific performance of the agreement, in spite of the fact that the District Forum has not accepted the contention of the original OP that Government has stayed the construction of the said building.

LEARNED counsel for the petitioner argued that the petitioner was not happy with the refund of money and interest but wants an alternate flat of similar dimensions in the same locality where the petitioner had booked the flat.

ON the other hand, the learned counsel for the respondent contended that he had only two issues against the impugned order of the State Commission. Learned counsel for the petitioner argued that there was no deficiency of service on the part of the respondent and the respondent was prevented in completing and delivering the possession of the flat as the State Government had directed not to proceed with any work of building approved. Hence, he opined, in the circumstances the interest @ 21% awarded by the State Commission was very high. He has also stated that the State Commission had erred in assuming the last payment dated 17.02.2003 was paid by cheque, hence, there was no reason to disbelieve the complainant about making such payment. Further the counsel for the respondent stated that the petitioner has no claim for Rs.1,71,000/ - alleged to have been paid by cash on 14.10.2001 as there is no receipt.

WE have carefully gone through the complaint filed by the petitioner wherein he has given the details of payment made by him. When he was asked to produce any evidence in support of the fact that he had paid Rs.1,71,000/ - on 14.10.2001 by cash, he was unable to produce the same. Hence, the petitioner/ complainant has failed to prove his case that he had made payment of Rs.1,71,000/ - by cash on 14.10.2001. We also agree with the District Forum and the State Commission that the petitioner/ complainant is not entitled to any alternate flat in the same locality and the only possibility under the given circumstances was refund of the amount paid by him to the respondent with interest as compensation.

IN view of the above, we dismiss the revision petition no. 600 of 2013 filed by the original complainant and partly allow the revision petition nos. 1306 and 1307 of 2013 filed by the opposite parties. The respondents/ OP should refund Rs.3,11,400/ - (Rs.4,82,400 -1,71,000) along with interest @ 21% to be paid from the respective dates of payment as stated in paragraph 6 of the complaint.