(Passed on 23.10.2015)
Per Mr B A Shaikh, Hon’ble B A Shaikh
1. This is a complaint filed under Section 12 read with Section 17 of Consumer Protection Act, 1986. The case of the complainant as set out in the complaint is as under.
- Opposite party (for short O.P.) No.1 is a builder & developer and O.P.Nos.2 to 5 are its various functionaries. The complainant booked row-house with the O.P. for a total consideration of Rs.56,31,163/-. Possession of the said row-house was agreed to be given to the complainant within 38 months from the date of booking i.e. from 17.09.2007. The complainant paid in instalments the entire amount of consideration of Rs.56,31,163/- to the O.Ps. However, they have not made construction of the said row-house and thus failed to perform their part of contract. The O.Ps have published the pricelist of the row-house, showing its price of Rs.78.96 Lacs. The value of the row-house is thus increased by Rs.22.96 Lacs. The complainant wrote various letters to the O.Ps and personally met them also and requested them to complete the construction of the row-house and give its possession to him. As he received no positive response, he filed the present complaint against the O.Ps, praying for direction to the O.Ps to refund him Rs.56,31,163/- with increased value of Rs.22.96 Lacs i.e. total Rs.79,27,163/- with interest @ 24% p.a. from the date of booking till its realisation or in alternative to complete the construction of the row-house within 60 days alongwith all common amenities and to handover its vacant possession to him and to execute sale-deed thereof in his favour and also to pay him compensation of Rs.5.00 Lacs and cost of Rs.1.50 Lac with interest and also to pay further compensation of Rs.1.00 Lac per month till handing over the possession of the row-house to him.
3. The complaint is resisted by the O.P. Nos.1 to 5 by filing their common written version. They admitted that the complainant booked row-house with them on 17.09.2007 and paid in instalments total consideration of Rs.56,31,163/- as stated in the complaint. They also admitted that the possession of the row-house was to be given to the complainant within 38 months of the said booking but it is not given to him due to changes in the Government policies, which resulted into delay in giving the possession. It is their case in brief that due to changes brought by the Government in their project, they had to take permission from time to time from concerned authorities and they have to go by rules framed by the Government. Therefore, they are not responsible for the delay. There is a clause No.17 in the agreement that if the delay is caused due to circumstances beyond control of the O.Ps, the date of handing over the possession of the row-house shall be automatically extended. Moreover the complaint is not maintainable as per arbitration clause of the agreement and the complainant is not covered under the definition of consumer as he invested money for commercial purpose and the Civil court can decide the questions involved in the complaint. Therefore, it is prayed by the O.Ps. that the complaint may be dismissed.
4. The complainant filed copies of documents, namely allotment letter, letter issued by the O.Ps about details of row-house, letters of reminders issued by the complainant to the O.Ps, payment receipts, statement of payment, advertisement of the O.P. and pricelist. The O.Ps adduced no evidence. Advocates of both parties filed Written Notes of Arguments. We have perused the complaint, reply / written version of O.Ps, aforesaid documents filed by the complainant and Written Notes of Arguments filed by the advocates of both parties.
4. The learned advocate of the complainant, during the course of hearing, took us through the documents filed on record and submitted that the O.Ps have not proved their defence and therefore, the complaint may be allowed.
5. On the other hand, the learned advocate of the O.Ps reiterated the aforesaid defence of the O.Ps and submitted that the complaint may be dismissed.
6. It is, thus, not disputed that despite of booking of row-house made by the complainant with the O.Ps on 17.09.2007 and receiving full consideration of Rs.56,31,163/- from the complainant, the O.Ps have not made construction of that row-house within stipulated time of 38 months. The O.Ps have come with a lame excused that due to some changes made by the Government in the project, they had to take permission from the authorities from time to time and therefore construction could not be completed. There is no document in support of the excuse of the O.Ps and therefore, there is no substance in the submission of O.Ps that due to the circumstance beyond their control they could not deliver possession of row-house to the complainant within stipulated time.
7. The O.Ps are service provider and the complainant is a consumer within the meaning of definition given in the Consumer Protection Act, 1986. Moreover, there is no evidence to show that the complainant invested money for commercial purpose with the O.Ps. It is also well settled law that despite the clause of arbitration in the agreement, the complainant before the Forum is maintainable. Thus, we find that all the defences raised by the O.Ps as above in their written version / reply, are baseless and cannot be accepted.
- We, also find that the complaint is maintainable before this Commission. Moreover, the entire consideration of row-house has been already paid by the complainant to the O.Ps. Therefore, he is entitled to possession of the row-house with all amenities and also registered sale-deed in his favour. If due to some legal imkpediments the O.Ps are unable to deliver possession of the row-house and to execute the sale-deed in favour of the complainant, then they are liable to refund aforesaid amount with interest @ 15% p.a. Moreover, they are also liable to pay escalation price of the row-house in case of refund of the price. It is not disputed that from the date of booking i.e. from 17.09.2007 there is very high escalation in the price of the row-houses at Nagpur. According to the pricelist published by the O.Ps the present price of the row-house is Rs.78.96 Lacs and therefore there is increase in the price of row-house by Rs.22.96 Lacs. However, we find that the escalation price is to be fixed at Rs.20.00 Lacs to be paid by the O.Ps to the complainant in case of refund of aforesaid amount to the complainant. Thus, we hold that the O.Ps have rendered deficient service to the complainant by not handing over the possession of the row-house with sale-deed to him as per terms of the agreement. Hence, the following order is passed.
ORDER
i. The complaint is partly allowed as under.
- O.P.Nos.1 to 5 are directed to handover the possession of the row-house with all amenities to the complainant within a period of three months and to execute the sale-deed of the same in favour of the complainant within a period of three months from the receipt of the copy of this order. The complainant shall bear the expenses of registration of sale-deed.
- If the O.Ps, due to any legal difficulties, are unable to handover the possession of the row-house to the complainant and to execute the sale-deed then they shall refund Rs.56,31,163/- with interest @ 15% p.a. from the date of complaint i.e. from 19.10.2013 till its realisation by the complainant.
iv. The O.Ps shall also pay to the complainant Rs.20.00 Lacs as a compensation towards escalation of the price of the row-house, if the possession of row-house with sale-deed is not handed over to him as above.
v. The O.P. Nos. 1 to 5 shall also pay to the complainant compensation of Rs.1.00 Lac towards physical & mental harassment and cost of Rs.25,000/-.
vi. Copy of the order be furnished to both parties free of cost.
