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MAHARASHTRA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MUMBAI
Hon’ble Mr. Justice M.S. Rane, President & Mr. V.K. Date, Member
KRISHNA D. SINGH—Appellant
versus
LUNAR CONSTRUCTION CO.—Respondent
Appeal Nos. 1789 & 1878 of 1999 and Complaint No. 223 of 1997—Decided on 3.9.2003
Counsel for the Parties :
For the Appellant :Mr. A.V. Patwardhan, Advocate.
For the Respondent:Mr. J.M. Baphna, Advocate.
The main legal point established in the judgment is the application of the principles of assessment of damages and compensation under the Indian Contract Act and the determination of pecuniary jurisdiction based on the value of the subject-matter of the dispute.
Headnote:
Consumer Protection Act - Flat Purchaser vs. Builder - Consumer Protection Act, 1986, Section 2(1)(g), Section 14(1)(d), Section 2(1)(o), Section 73 of Indian Contract Act - The court discussed the deficiency in service under Section 2(1)(g) of the Consumer Protection Act, 1986, and the principles of assessment of damages and compensation under Section 73 of the Indian Contract Act. The court also emphasized the determination of pecuniary jurisdiction based on the value of the subject-matter of the dispute.
Fact of the Case:
The flat purchaser filed a complaint against the builder for not delivering possession of the flat despite receiving the agreed consideration. The District Forum awarded possession of the flat and a sum of Rs. 7,00,000 as compensation to the flat purchaser.
Finding of the Court:
The court found the builder deficient in rendering services to the flat purchaser and upheld the award of possession. However, the court found the compensation awarded to be unreasonable due to lack of sufficient data and referred to the principles of assessment of damages and compensation under the Indian Contract Act.
Issues: The issues included non-delivery of possession, determination of compensation, and the pecuniary jurisdiction of the District Forum.
Ratio Decidendi: The court held that non-delivery of possession despite receipt of consideration constituted deficiency in service under the Consumer Protection Act, 1986. The court emphasized the need for furnishing substantiated evidence for claiming damages and compensation and reiterated the determination of pecuniary jurisdiction based on the value of the subject-matter of the dispute.
Final Decision: The court allowed the appeal with modifications, confirming the possession of the flat and directing the builder to pay interest on the consideration amount. The court also ordered the builder to refund a specific amount and dismissed the builder's appeal.
Mr. Justice M.S. Rane, President—Both these appeals are cross appeals arising against the one and same order of the District Forum, Thane being dated 7.8.1999. The appellant in the first appeal is original complainant and respondent original O.P. whereas the position is reverse in the second appeal, that is to say, O.P. is appellant and complainant is respondent.
2. We are proceeding to dispose of these appeals at the stage of their admission itself on perusal of the material available in the appeal paper book and on hearing the learned Advocates for both the parties, with a common judgment.
3. At the outset it needs to be stated that the complainant has filed the appeal being not satisfied with the quantum of compensation and other monetary benefits awarded by the District Forum whereas the O.P. has filed the appeal with grievance that the monetary part of the award of the District Forum is exorbitant.
Few relevant facts
4. The party hereinafter are referred to as flat purchaser and builder i.e., to say appellant in the first appeal is referred to as “flat purchaser” and respondent as “builder”.
5. The flat purchaser filed the complaint against the builder alleging deficiency on the part of the builder. There are various deficiencies alleged including demand of more amount than agreed, not handing over possession, etc. Main grievance of the flat purchaser pertains to non delivery of the possession of the flat.
6. In the complaint the flat purchaser claimed possession of the flat as also compensation against the builder.
7. It is noticed that the builder appeared in response to the show-cause notice issued by the District Forum and fact that there was a deal between the flat purchaser and the builder, whereby the flat purchaser had agreed to purchase a flat and the builder having agreed to sell the same for consideration as also schedule of payment and delivery schedule, etc., all these facts which are otherwise documented are not in dispute. According to the complainant, agreed consideration was Rs. 3,43,977/- and which he paid from time-to-time to the builder and payment of entire consideration was completed in the year 1996.
8. The builder was to hand over the possession of the flat to the flat purchaser by September, 1994.
As the possession was not given, that the purchaser approached the District Forum.
Builder appeared in response to the show-cause notice and opposed the claim, inter alia raising several points on several accounts.
9. However, the fact remains that the builder did not deny the fact of non delivery of possession of flat as also receipt of consideration except that some amount which the complainant claimed to have paid in cash for which no receipts were issued by the builder.
10. The builder put up plea, he having sold the flat earmarked for the flat purchaser/complainant to one Mr. Sunil Khanna in September, 1997 and reliance was placed to the alleged M.O.U. executed between the builder and the said Mr. Sunil Khanna.
11. The District Forum which probed the rival contention of the parties and plea put forth hereinabove, proceeded to award in the first instance ordering the builders to hand over possession of the flat agreed to be sold to the flat purchaser. In the alternative the District Forum ordered the builder to pay to the flat purchaser a sum of Rs. 7,00,000/- as compensation, worked out and rounded up by calculating interest at 18 per cent per annum on the amount of consideration paid by the flat purchaser Rs. 1,00,000/- for mental agony, Rs. 5,000/- as cost and interest, etc.
As stated the said award has been challenged by both the parties.
12. Across, the learned Advocate for flat purchaser submitted that the transaction dates back to the year 1993-94 and it is nearly now 10 years that this appeal is being taken up for hearing.
13. On behalf of flat purchaser it is asserted that the District Forum has passed the award in the year 1999 and compensation of Rs. 7,00,000/- as awarded was not fair, since by then
