UDAY R.MANERIKAR, MRS.VEENA UDAY MANERIKAR vs VASANT T.KARODE

THIS petition is by builders who were opposite parties in the complaint filed by the respondent-complainants. They are aggrieved by the order of the State Commission which in turn affirmed that of the District Forum allowing the complaint and acting the petitioners to hand over possession of the property built by the petitioners under agreement dated 4.5.1991 between the petitioners and the complainant. District Forum had also awarded compensation of Rs. 41,000/- by way of damages and also interest @ 18% per annum on this amount if it was not paid. There was further direction of the District Forum to the petitioners to pay Rs. 2,000/- per month to the complainants from the date of filing of the complaint till vacant possession of the premises was handed over to the complainants. Cost of Rs. 3,000/- was also imposed by the District Forum.

STATE Commission in appeal against this order by the petitioners affirmed the order of the District Forum but reduced the interest from 18% to 15% and granted further time to petitioners to hand over possession of the premises to the complainants. The operative portion of the order of the State Commission is as under : "Appeal is partially allowed as under : (1) Operative part of the order which directs the Builder to hand over the possession to the complainants stands confirmed with modification that 4 months.'' time is granted to the appellant for compliance of the said part of the order. (2) Compensation of Rs. 41,000/- as awarded by the District Forum stands confirmed with modification that rate of interest to be read as 15% p.a. (3) Award of Rs. 2,000/- per month from 18.6.1993 till handing over possession with interest, etc. stands set aside. (4) Award of cost of Rs. 3,000/- is retained. (5) Appellant shall pay cost in this appeal quantified at Rs. 2,000/- to the respondent.

It is not disputed that under the agreement dated 4.5.1991 under which petitioners agreed to construct row houses for the complainants. A sum of Rs. 3,10,000/- was paid by the complainant to the petitioners and possession was to be handed over by 31.12.1991. Out of this a sum of Rs. 10,000/- was towards cost for obtaining electric meter, etc. House could not be completed as per the agreement and possession was not handed over to the complainants although entire cost of construction had been paid by the complainant to the petitioners. Principal contention of the petitioners before us and also before the State Commission was that for specific performance of agreement complainants had already filed a suit in the Civil Court and, therefore, they could not seek parallel remedy by approaching the District Forum under the Consumer Protection Act, 1986 (''Act'' for short). State Commission had noticed that at the time the civil suit was filed position of law under the Act was not clear if housing could come within the scope of deficiency in service. It was later that Supreme Court held that housing does come within the purview of a Forum under the Act and as a matter of fact, Act was also amended subsequently. It is further pointed out that complainants have waited for 8½ years for them to get relief in the Civil Court and that there had not been any progress in the civil suit. They, therefore, complaining deficiency in service approached the District Forum. State Commission was of the view that the District Forum rightly entertained complaint and passed the order which was modified by the State Commission in the appeal filed by the petitioners.

PETITIONERS had received full amount of consideration for building the row houses for the complainants. It cannot be heard to say that Consumer Forum under the Act had no jurisdiction when a party had already approached the Civil Court. There is no error in the order of the State Commission. In any e we do not find this is a fit case for us to exercise our jurisdiction under Clause (b) of Section 21 of the Act. This petition is, therefore, dismissed.