CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE, MUMBAI



First Appeal no.1431/2008 @ Date of Filing: 11/11/2008

Misc.Application No.2012/2008-Delay

Consumer Complaint No.192/2007

District Consumer Forum: Pune Date of Order: 08/06/2009



Shri Yashwant Aatmaram Limaye, Appellant

28, Hanuman Society, In front of D.N.C. (Org.Complainant)

High School Gate, Nandivali Road,

Dombivali(E)-421 201.

V/S.

Shri Mahesh Prabhkar Limaye, Respondent

Plot No.30, Happy Colony, (Org.Opp.Party)

Galli No.1, Kothrud,

Pune- 411 029.



Corum : Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member.

Smt.S.P.Lale, Hon’ble Member.



Present: Appellant in person.

Adv.Shri K.K.Waghmare for respondent.



:- ORDER :-

Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member:



This appeal is directed against the order/award dated 29/04/2008 passed in consumer complaint 192/2007 Shri Yashwant Aatmaram Limaye V/s. Shri Mahesh Prabhkar Limaye by District Forum, Pune (Forum below in short). Consumer complaint on alleged deficiency in service stood dismissed and feeling aggrieved thereby, original complaint preferred this appeal. There is delay of about 6 months in filing the appeal and hence the application for condonation of delay is also filed.

It is the case of the appellant that development agreement dated 07/11/1997 between he himself, his brother and sisters on one part and M/s. Vimal Enterprises, a proprietary concern through proprietor- Shri Mahesh Prabhakar Limaye on other part. Shri Mahesh Prabhakar Limaye is a builder and developer. The said agreement had taken place in respect of ancestral property of the family situated at Pune. It is a grievance made by the complainant, as could be seen from his affidavit since copy of the complaint is not on record and as it appears, was not filed even before the Forum below, that as per the development agreement he was to receive a flat having carpet area of 156 sq.ft. along with toilet but instead thereof had received a flat having carpet area of 120 sq.ft. only. He also made a grievance about delayed possession and that his way to the terrace is obstructed. Possession was delivered to him sometime in the month of Marhc-2003. Consumer complaint is filed on 08/10/2007.

Respondents/opposite parties denied all averments made in the consumer complaint stating that there is no deficiency in service on his part and as agreed 150 sq.ft. built up area with toilet was handed over to the complainant. The allegations as to the delay in handing over the flat were denied. About the key of the terrace, keeping the aspects of security in mind, opposite party showed its willingness to hand over the keys to the complainant. About completion certificate, he had submitted that he had taken all necessary steps and the matter is with the Municipal Corporation.

Forum below holding that there is no deficiency in service as alleged and further holding that complainant failed to establish the claim for compensation of Rs.9 lakhs, dismissed the complaint.

We heard appellant in person and Adv.Shri K.K.Waghmare for respondent. Perused the record.

There is delay of 6 months and 5 days in filing the appeal. However, it appears that due to his old age the complainant it took time to obtain the copy and to take necessary steps in order to file the appeal. He had even moved the State Commission about his inability to file the appeal. The delay being unintentional and not deliberate we find that it is satisfactorily explained and hence, allow the application for condonation of delay bearing Misc.Application No. 2012/2008.

Coming to the merit of the appeal, it could be seen that in an impugned order a reference to the compensation to Rs.9 lakhs claimed by the complainant is made. However, when we made enquiry from the appellant/complainant about the copy of complaint, he had answered to us that the copy of affidavit, which is produced in the appeal paper book is in fact a complaint and there is no separate copy of the complaint. Said affidavit is dated 18/07/2007. Nowhere therein there is any reference to claim for compensation of Rs. 9lakhs. Therefore, we accept the statement on its face value made in the impugned order/award by the Forum below to the effect that the complainant made a claim for compensation of Rs.9 lakhs, which he failed to substantiate or establish.

In the affidavit dated 18/07/2007, supra, it is mentioned that the complainant had received a possession of his flat as per development agreement in the month of March-2003. If he had any grievance about the less area received, the consumer complaint filed in the year 2007 in that respect is clearly time barred. Obviously, he has not made even application for condonation of delay while filing consumer complaint. Therefore, the consumer complaint on this count is not tenable.

As far as issue as to deficiency in service on the ground of non handing over the completion certificate is concerned, the development agreement does not make any provision or caste any obligation in that respect on respondent/opp.party. The respondent/opp.party also submitted that it had submitted all the papers with the Municipal Corporation but the completion certificate is yet to be received. Therefore, consumer complaint in respect of alleged deficiency in service for handing over the copy of completion certificate in the background of given circumstances, cannot be entertained.

Thus, we find the appeal is devoid of any substance and holding accordingly, pass the following order:-







:-ORDER-:

1. Appeal stands dismissed.

2. In the given circumstances both the parties are left to bear their own costs.

3. Copies of the order herein be furnished to the parties.





(S.P.Lale) (S.R.Khanzode)

Member Presiding Judicial Member