Judicial Analysis Court Copy Headnote Facts Arguments Court observation

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
V.B. Gupta, Presiding Member and Suresh Chandra, Member
R.N.A. BUILDERS (NG) - Appellant
Versus
KALIKANT MISHRA - Respondent
Revision Petition Nos. 1566 and 1567 of 2010 from Order dated 30.10.2009 in Appeal No. 728 of 2009 of State Commission, Maharashtra
Decided on : 05-07-2011

Advocates Appeared:
Mohd. Wasay Khan, Advocate, for the Appellant; Mr. Nagaraj V. Hoskeri, Advocate, for the Respondent

The central legal point established is the obligation of the builder to hand over possession of the flats upon payment of the balance amount by the purchasers, as well as the court's authority to impose punitive costs for abusing the process of law.

Headnote:
Consumer Disputes - Possession of Flats - Consumer Protection Act, 1986, Section 2(1)(g), Section 21(b) - The court discussed the provisions of the Consumer Protection Act, 1986, particularly Section 2(1)(g) defining 'consumer' and Section 21(b) conferring revisional powers on the National Commission. The court emphasized the legal right of the purchasers to have possession of the flats and the builder's obligation to hand over possession upon payment of the balance amount. The court also highlighted the abuse of process of law by the builder and imposed punitive costs.
Fact of the Case:

Respondents filed complaints for non-possession of flats after making partial or full payments. District Consumer Forum partly allowed the complaints, directing the builder to refund the amounts with interest. State Commission allowed the appeals and ordered the builder to hand over possession of the flats to the appellants after accepting the balance amount.
Finding of the Court:

The court found that the builder failed to hand over possession of the flats to the complainants despite receiving full or substantial consideration amounts. It emphasized the legal right of the purchasers to have possession of the flats and criticized the builder's unscrupulous actions, imposing punitive costs on the builder.
Issues: The issues involved the builder's obligation to hand over possession of the flats, the complainants' payments, and the abuse of process of law by the builder.
Ratio Decidendi: The court held that the builder's failure to hand over possession despite receiving full or substantial consideration amounts was unjust. It emphasized the legal right of the purchasers to have possession of the flats and imposed punitive costs on the builder for abusing the process of law.
Final Decision: The court dismissed the petitions with punitive costs of Rs. 1 lakh, directing the builder to deposit the costs and pay interest if not deposited within the prescribed period. The revision petitions were disposed of, and compliance was scheduled for a later date.

ORDER

V.B. Gupta, Presiding Member - Consumer Disputes Redressal Commission, Mumbai, Maharashtra (for short 'state Commission') vide common order dated 30th October, 2009 disposed of two appeals (No. 728 and 729/2009) filed by respondents Kalikant Mishra and Sujit Kumar Mishra as issues involved in these appeals were common and the builder (i.e. petitioner) is also common.

2. Respondent/Complainant (Kalikant Mishra) filed complaint (No. 390/2007) whereas respondent/complainant (Sujit Kumar Mishra) filed complaint (No. 398/2007) before District Consumer Forum, Thane, for not giving possession of two flats to them. According to their complaints they had purchased flat Nos. 401 and 402 on 4thfloor in "A" Wing in the building known as NG Vikas' and each flat is measuring 379.88 sq. ft. in area. Cost of flat No. 401 was Rs. 8,24,600. Accordingly, agreement for sale was registered on 25.4.2006. As per complainant, he paid Rs. 5,50,000 out of Rs. 8,24,600 to the O.P. as part consideration. Complainant further submits that he approached O.P. and requested for possession of the flat after receipt of balance consideration amount. However, O.P. failed to hand over the flat to the complainant.

3. In case of flat No. 402, complainant paid entire amount of Rs. 8,24,600 to the O.P. in full and final settlement of the price. In spite of having accepted full consideration amount, O.P. failed to hand over possession of flat No. 402 to the complainant.

4. Therefore, separate consumer complaints were filed by both respondents/complainants alleging deficiency in service on the part of the builder.

5. O.P./petitioner filed its written statement and denied allegations of the complainants. It pleaded that cost of flat No. 401 was fixed at Rs. 8,24,600 and cost of flat No. 402 was Rs. 7,38,600 and Rs. 86,000 was fixed by O.P. for providing extra amenities. Out of Rs. 86,000, complainant paid only Rs. 46,403 for the extra amenities and failed to pay the balance amount of Rs. 46,403 to the O.P. it is further pleaded that complainant has not paid entire amount of the flat. Therefore, possession of the flat was not handed over to the complainant since complainant was facing financial crises and had not paid balance amount to the O.P. Therefore, there was no deficiency in service on the part of O.P.

6. After considering documents and affidavits placed before it, District Consumer Forum partly allowed the complaints and directed O.P. to refund amount of Rs. 5,50,000 together with interest @ 10% p.a. from 25.4.2006. It further directed O.P. to pay Rs. 7,000 towards cost and Rs. 25,000 for mental agony in case of flat No. 401, in complaint (No. 398 of 2007).

7. In case of flat No. 402, in complaint (No. 390 of 2007) District Forum directed the O.P. to refund amount of Rs. 8,24,600 together with interest @ 10% p.a. from 5.5.2006. It further directed O.P. to pay Rs. 10,000 towards cost and Rs. 25,000 for mental agony.

8. Aggrieved by the order of District Forum, respondents/complainants filed appeals before the State Commission, which vide impugned order, allowed both appeals and ordered that Clauses 2 and 3 of the operative part of complaint (No.390/2007) regarding refund of consideration amount be substituted as under:

"Respondent/Org. O.P. is directed to hand over possession of the flat No. 402 on 4th floor, A Wing in the building known as NG VIKAs' admeasuring 379.88 sq. ft. carpet area to the appellant."

9. Similarly, Clause Nos. 2 and 3 of the operative part of complaint (No. 398/2007) regarding refund of consideration amount be substituted as under:

"Respondent/Org. O.P. is directed to hand over possession of the flat No. 401 on 4th floor, A Wing in the building known as NG VIKAs' respondent/Org. O.P. is directed to hand over possession of the flat No. 402 on 4th floor, A Wing in the building known as NG Vikas' admeasuring 379.88 sq. ft. carpet area to the appellant after accepting balance amount of consideration.

Rest of the order stands confirmed."

10. It has been

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