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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. B.C. Gupta, Presiding Member
Vinayak Purushottam Dube through
LRs. —Petitioner
versus
Jayashree Padmakar Bhat & Ors. —Respondents
Revision Petition No. 3283 of 2008
(Against the Order dated 08/04/2008 in Appeal No. 2570/2006 of the State Commission Maharastra)
Decided on 31.5.2016
Counsel for the Parties:
For the Petitioner: For LRs of Vinayak Purushottam Dube) :Mr. Manu Beri, Advocate For Jayashree Padmakar Bhat and others:Mr. Braj K. Mishra, Advocate with Mr. Vijay Kumar, Advocate
IMPORTANT POINT
Transaction between parties has to been seen as a whole.
Headnote:Consumer Protection Act, 1986—Sections 15, 17, 19 and 21—Real estate—Development agreement—Shortcomings in construction—Complaint partly allowed by Fora below—State Commission have taken view that payment of instalments of Rs.1.65 lacs and Rs.1.85 lacs had become barred by limitation—No any reason to agree with contention of State Commission that these two amounts are not payable due to limitation factor—Agreement between parties has to be taken as a whole and contention of OPs that there is no continuous cause of action is without any force—District Forum rightly allowed payment of amounts of Rs.1.65 lacs and Rs.1.85 lacs alongwith 18% interest from date of default in making payments of instalments— Plea taken by State Commission that transactions were barred by limitation is perverse in eyes of law because transaction between parties has to been seen as a whole—Order passed by State Commission modified. (Paras 9 and 10)
Result: Revision Petitions disposed of with directions.
Dr. B.C. Gupta, Presiding Member —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.
2. 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.
3. 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.
4. The District Forum after taking into account the contentions raised by the parties, partly allowed the said complaint and ordered as follows:
“ORDER
1. The complaint is partly allowed.
2. 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.
3. 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.
4. The Opponent to pay Rs.1,50,000/- to the Complainants at the time of Conveyance of the said property.
5. The Opponent to pay Rs.1,000/- as cost of the Complaint to the Complainants.”
5. 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
1.
