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Rabeya Begum - Appellant
Versus
Vandhana Enterprises - Respondent
Decided On : 12/31/1993
O.P. No. 536/92
Advocates Appeared :
S.B. Fazluddin,P.J. George
Headnote:Consumer Protection Act, 1986 - Sections 17 read with Sections 12 & 2(1)(d)(ii) - Complainant entered into separate agreement with opposite party for construction and allotment of four flats including common area - Paid Rs. 10,22,900/- Opposite party failed to provide plinth area, aluminum windows and shutters, parking space, no provision for fixing air conditioner and exhaust fans etc - Appropriated sales tax deposits - Complaint filed - Opposite party contending that transaction purely a sale of immovable property and in order to avoid stamp duty builders agreement entered into - Complainant not a consumer - All allegations of deficiency denied and disputed - Complainant and opposite party entered into agreement for building construction and allotment of flats - Complainant consumer - Complainants alleging deficiency in various services - Commissioner appointed - Deficit in plinth area of two flats - Opposite party directed to refund Rs. 12,784/- to complainant - Complainant having accepted car parking space not entitled to claim refund - Though opposite party failed to put up aluminum frames and shutters on windows spent extra amount in putting country-wood frame and shutters - Complainant not entitled to claim extra amount - No provision in agreement for providing space for Air conditioner and exhaust fans - No deficiency in service - Main entrance to each of the flats has a door lock - Allegation in-correct - Complainant to apply for transfer of Electric connection and opposite party to give necessary consent Amount of Sales Tax collected to be deposited :n1o Bank - In case Sales Tax not payable opposite party to refund amount to complainant with interest.
Held: The complainant and the opposite party has entered into agreement for building for construction and allotment of flats to the complainant and the complainant is therefore a consumer within the meaning of Sec. 2(1) (d)(ii) of the Consumer Protection Act. (para 6)
According to the opposite party the agreement docs not provide for any allotment of car space to the allot tees of flats and they have to fit the covered car parking space by separate payment and accordingly the complainant has paid Rs. 20,000/- and she has been allotted a covered car space on the northern side of the ground floor. Having - accepted this arrangement, paid Rs. 20,000/- and got a car parking space allotted to her. It is not open to the complainant to claim refund of the sum. (Para 7)
Admittedly the opposite party has not put up aluminum frames and shutters but only country wood frames and shutters and this has also been pointed out by the Commissioner in Exh. C-1 report. According to the opposite party, there was delay on the part of the supplier of aluminum frames and shutters and the opposite party with a view to complete the construction in time provided country wood (venteak) shutters and frames at additional cost. He has filed Exh. B-1 and B-2 to show that the cost of aluminum shutters and frames is only Rs. 65 per sq.fl. while the cost of country wood comes to Rs. 90/- per sq.n. Though the opposite party has failed to put up aluminum frames and shutters for the windows as agreed upon he has spent the extra amount in putting up country wood frames and shutters at extra cost. The complainant is not therefore dandified in any way. The complainant cannot therefore claim any extra amount on this score. (Para 7)
Agreement makes no provision for providing space for Air Conditioner and exhaust fans and hence no allegation of deficiency of service on this aspect can be attributed to the opposite party. (Para 7)
The Commissioner has pointed out in his report that the main entrance to each of the flats has a door lock with handle and this allegation is incorrect. The report of the Commission is accepted and this claim is turned down. (Para 7)
It is well known that the purchaser has to apply to the Electricity System for transfer of the electric connection for which consent has to been given to the seller. The complainant has therefore to apply for transfer and directions shall be given to the opposite party to give the necessary consent. (Para 7)
The opposite party has collected Rs. 30,900/as sales lax payable to the Government on the building agreement. This amount has not yet been paid to the Government and the complainant claims refund of the same with interest at 24% p.a. It seems that the question whether sales tax is liable on building contract is still in dispute and the matter is pending before the High Court and Supreme Court and consequently the amount has not been paid. The Learned Counsel for the opposite party agrees to deposit the money into a bank and produce the passbook before this Commission. If ultimately it is held that no sales tax is payable, the opposite party shall refund the amount to the complainant with interest at 18% p.a. from the date of collection. (para 7)
IMPORTANT POINT
The complainant and opposite party has entered into agreement for building for construction and allotment of flats to the complainant and complainant is therefore a consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act.
S.A. Kader, President - This is a complaint under Sec. 17 read with Sec. 12 of the Consumer Protection Act.
2. The complainant entered into an agreement with the opposite party who is a builder for the construction and allotment of 4 flats bearing numbers 101,204,301 and 303 in the complex known as Vandhana Apartments at door No. 15, Ramayya Naidu St., Shenoy Nagar, Madras-30. She paid a sum of Rs. 28,400/- on 24.8.1989 by cheque and subsequently she has paid Rs. 9,94,500/-. The complainant has also entered into an agreement with the opposite party for the allotment of another flat bearing No. 203 but that in the subject matter of a civil suit and we are not concerned therewith. This complaint is in respect of 4 flats - Flat No. 101 in the first floor measuring 960 sq. [t. including the common area(2) flat No. 204 in the second floor measuring 1000 sq.ft. including the common area(3) flat No. 301 in the third floor measuring 990 sq.ft. including the common area and(4) flat No. 303 in the third floor measuring R.50 sq.ft. including the common area.(vide para 10) The complaint is filed with various allegations of deficiency of service such as shortage in plinth area, failure to provide aluminium windows and shutters, failure to provide car parking space, failure to provide provision for fixing Air Conditioning, exhaust fans and electricA1 points, failure to transfer the electricity accounts, failure to instant main door lock with handle, appropriation of sales tax deposits. It is alleged that the complainant was compelled to pay a sum of Rs. 20,000/- for alloting a car parking space in the northern side of the ground floor and she claimed the amount with interest at 24% p.a. We shall deA1 with other allegation while discussing the points.
3. It is contended by the opposite party that though the builders agreement was entered into between the complainant and the opposite party. The transaction was purely a sale of immovable property and in order to avoid stamp duty the builders agreement has been entered into. The complainant is not therefore a consumer and the complaint is not maintainable. It is denied that there is any deficiency in the measurement of plinth area. As the supplier of aluminium windows and shutters failed to supply the same in time, the opposite party fixed and installed wooden frames and shutters for the windows which was more expensive. There is no contract for provision of cut out for fixing Air Conditioner and exhaust fans. The sales tax amount collected from the complainant will be utilised for the same as and when the tax authoritites assess the amount payable. The reserved car parking space arc allotted by virtue of allotment letter and the complainant has been allotted a reserved car parking space on payment. The shops mentioned in the complaint have been put up even before the complainant entered into an agreement. Electricity deposits have been made with the Electricity Board and it is for the purchase of a flat to submit transfer forms and the service connection transferred in their names. No amount has been received as corporation service charge as alleged. All the other allegations of deficiency arc denied and disputed.
4. Exh. A-1 to A-8, B-1 and B-2, and C-1 to C-3 are marked by consent. Proof affidavits are filed. No orA1 evidence has been let in.
5. The points that arise for considerations
(1) Whether the complainant is a consumer and the complaint is maintainable?
(2) Whether there has been any deficiency of service or negligence on the part of the opposite party?
(3) To what relief if any is the complainant entitled?
6. Point No.1: The complainant has entered into an agreement with the opposite party-builders for the construction and allotment of 4 flats bearing Nos. 101,204,301 and 303 in Vandhana Apartments, Shenoy Nagar. Exh. A1 is the builders agreement in respect of flat No. 301 in the third floor. The agreement in respect of other flats are not produced but it has admitted to contain the sa
