VINAYAK PURUSHOTTAM DUBE THROUGH vs JAYASHREE PADMAKAR BHAT & ORS.

These two revision petitions have been filed under Section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 8.4.2008, passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (hereinafter referred as State Commission'') in First Appeals Nos.2570/2006 and 1115/2007, vide which, the order passed by the District Consumer Disputes Redressal Forum, Kolhapur dated 16.10.2006 in Consumer Complaint No.184 of 2005, was modified.

Briefly stated, the facts of the case are that the complainant- Vinayak Purushottam Dube and now his legal representatives are owners of the property, bearing City Survey No. Ward C, 1465/1 and 1465/2, Kolhapur. By virtue of an agreement dated 30.7.1996 with the OPs, the complainants entrusted the right of development of the said property to the opponents subject to certain conditions. It has been stated that the OPs agreed to provide them a total built up area of 5600 sq. ft. in the form of 8 flats, which were to be constructed by the OPs on the said property. In addition, they agreed to pay an amount of Rs.6,50,000/- to the complainants, out of which, Rs.1.5 lacs was to be paid at the time of execution of agreement, and the same was received by the complainants. It was also stipulated that if the payment was not made in time, the OPs will be liable to pay 18% interest on the said amount. It has been alleged in the consumer complaint that the OPs did not pay the balance amount of Rs.5 lacs to the complainants. Moreover, the construction had also not been made in accordance with the terms and conditions of the agreement. The completion certificate for the residential flats had not been procured and the compound wall around the property as per the sanctioned building plan had not been constructed. The space shown for parking of the vehicles was not capable of being used as such, due to defective construction and inadequate height etc. The complainants have listed various short-comings in the construction made by the OPs and sought directions through the complaint to the OPs to pay the balance consideration of Rs.5 lacs, alongwith 18% interest. They also sought direction to remove various defects in the construction made by the OPs, besides, demanding a sum of Rs.1 lac as compensation for mental agony etc.

The complaint was resisted by the OPs by filing a written statement before the District Forum, in which they denied the allegations levelled by the complainants and stated that the transaction between the complainants and OPs was a commercial one and hence, it was outside the purview of the consumer fora. It was also stated that they had already delivered possession of 8 flats to the complainants plus additional area of 560 sq. ft. They also stated that they had spent an amount of Rs.3 lacs for providing additional and better facilities and amenities than those provided in the agreement. The complaint, therefore, should be dismissed as being baseless.

The District Forum after taking into account the contentions raised by the parties, partly allowed the said complaint and ordered as follows: "ORDER

The complaint is partly allowed.

The Opponent to pay Rs.1,65,000/- (One Lakh Sixty Five Thousand) to the Complainants alongwith the interest @ 18% p.a. from 1/5/1997 till the payment of the said amount.

The Opponent to pay Rs.1,85,000/- (One Lakh Eighty Five Thousand ) to the Complainants alongwith the Interest @ 18% p.a. from 31/8/1997 till the payment of the said amount.

The Opponent to pay Rs.1,50,000/- to the Complainants at the time of Conveyance of the said property.

The Opponent to pay Rs.1,000/- as cost of the Complaint to the Complainants."

Being aggrieved against the said order, both the parties challenged the same by way of appeals before the State Commission, which were decided by impugned order. The State Commission partly allowed the said appeals and ordered as follows:

" ORDER in A-2570/2006

Appeal filed by the developer is partly allowed.

Clause Nos.2 & 3 of the operative part of the order dated 16/10/2006 are hereby quashed and set aside. Rest of the clauses of the final order are confirmed.

ORDER in A-1115/2007

Misc. Appeal No.1478/2007 is allowed. Delay is condoned on payment of cost of Rs.2,000/- to be paid to the other side.

Appeal filed by the org. complainants is partly allowed.

O.P./Developer is hereby directed to obtain and to hand over Completion Certificate to the complainants.

O.P./Developer is hereby directed to execute Conveyance Deed in favour of complainants/Co-op. Housing Society."

During the pendency of the petition, the complainant- Vinayak Purushottam Dube died and his legal representatives have been brought on record, who are his wife and two sons.

During hearing before me, the learned counsel for the complainants pointed out that a sum of Rs.6.5 lacs was payable by the opposite parties, out of which Rs.1.5 lacs was paid at the time of agreement. The balance amount of Rs.5 lacs was payable to them in instalments. A sum of Rs.1.65 lacs was payable within four months from the date of sanction of the plan by the Kolhapur Municipal Corporation and a sum of Rs.1.85 lacs was to be paid within 8 months from the date of sanction of the plans. The last payment of Rs.1.50 lacs was agreed to be made at the

time of execution of the conveyance deed in favour of the proposed cooperative housing society. It was an admitted fact that the local authority sanctioned the building plan on 31.12.1996. The sum of Rs.1.65 lacs was, therefore, payable by 1.5.1997 and Rs.1.85 lacs was payable by 31.8.1997. Since the amounts had not been paid by the OPs, interest @ 18% per annum was also liable to be paid on these amounts. The learned counsel for the complainants stated that the State Commission had taken an erroneous view that the payment of Rs.1.65 lacs and Rs.1.85 lacs allowed by the District Forum had become time barred and hence, were not payable. The learned counsel argued that the overall position at the final stage of execution of the conveyance deed has to be seen. According to the learned counsel, it was a case of continuous cause of action and there could not be any piece-meal litigation between the parties, by which the proceedings were to be initiated for payment of instalments due from time to time. In support of his arguments, the learned counsel has drawn attention to the terms and conditions contained in the development agreement between the parties. It has been stated in the said agreement that any part of the property could not be conveyed, unless and until, the owners had received the entire sale price of the said property and the developer had conveyed to the owners the portion of the premises agreed to be constructed for them.

Per contra, the learned counsel for the opposite parties stated that the possession of the flats had been given to the complainants in the year 1999 and hence, the complaint filed by them was barred by limitation under Section 24 A of the Consumer Protection Act. He further stated that additional area of 560 sq. ft. had also been given to the complainant, in addition to the 8 flats. The completion certificate had also been obtained by them. Therefore, the complaint deserved to be dismissed.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me. It is an admitted position between the parties that following the development agreement between the complainants and the OPs, the OPs were required to provide 8 flats, measuring a total area of 5600 sq. ft. to the complainants and also a sum of Rs.6.5 lacs in instalments. It has not been denied by the complainants that they have already received the possession of the 8 flats. It is also admitted that a sum of Rs.1.5 lacs was received at the time of execution of agreement. The issue for consideration at the moment is about payment of rest of the balance amount and interest thereon as well as the execution of the conveyance deed, obtaining of completion certificate and providing various amenities/facilities as stipulated in the agreement. Coming to the payment of the compensation, it is clearly laid down that out of the balance of Rs.5 lacs, Rs.1.65 lacs was to be paid after four months of sanctioning of the building plan by the Local Municipal Corporation which was sanctioned on 31.12.1996. The payment of the other instalment of Rs.1.85 lacs was to be made within 8 months of the sanction of this building plan and the balance of Rs.1.5 lacs was to be paid at the time of execution of conveyance deed. This is also admitted that these amounts were not paid by the OPs to the complainants. The State Commission have taken the view that the payment of instalments of Rs.1.65 lacs and Rs.1.85 lacs had become barred by limitation. However, I do not find any reason to agree with the contention of the State Commission that these two amounts are not payable due to limitation factor. The agreement between the parties has to be taken as a whole and hence, the contention of the OPs that there is no continuous cause of action, is without any force. The District Forum rightly allowed the payment of amounts of Rs.1.65 lacs and Rs.1.85 lacs alongwith interest @ 18% per annum from the date of default in making payments of the instalments. I do not find any reason to disagree with the conclusion arrived at by the District Forum in this regard. The plea taken by the State Commission that transactions were barred by limitation is perverse in the eyes of law, because the transaction between the parties has to been seen as a whole. The direction given by the State Commission in the impugned order regarding the amounts of Rs.1.65 lacs and Rs.1.85

lacs, is therefore, set aside and the order passed by the District Forum for payment of Rs.1.65 lacs alongwith interest @ 18% w.e.f. 1.5.1997 till realization, and payment of Rs.1.85 lacs alongwith interest @ 18% per annum from 31.8.1997 is, therefore, upheld. The rest of the direction given by the State Commission for payment of Rs.1.50 lacs at the time of executing of conveyance deed and Rs.1,000/- as cost of litigation is also upheld.

Further, the State Commission vide impugned order have given the direction that the OP/Developer should hand over the completion certificate to the complainants and also to execute conveyance deed in favour of the complainants/Cooperative Housing Society. The State Commission also gave direction that the OP/Developer would construct a compound wall in terms of clause no.4(k) of the development agreement and to give separate access in terms of schedule 2 of the development agreement. The OP/Developer was also asked to provide electric connection to the complainants. At the time of hearing before me, the OP/Developer has not challenged any part of the direction given to them and the same are in accordance with the development agreement between the parties. The direction given by the State Commission to this effect vide impugned order are, therefore, upheld. Based on the discussions above, these two revision petitions are disposed of by upholding the order passed by the State Commission with the modification that the complainants shall also be entitled to be given the amounts of Rs.1.65 lacs and Rs.1.85 lacs alongwith interest in accordance with the order passed by the District Forum.

There shall be no order as to costs.