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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Subhash Chandra, Presiding Member
Laxmi Pramod Mudbhatkal and Anr. – Complainants
versus
Pantnagar Ganesh Darshan
Co-Operative Housing Society Ltd.
and Ors. – Opp. Parties
Consumer Case No.1449 of 2015
Decided on 2.3.2023
Counsel for the Parties:
For the Complainants:Mr. Sunil Kumar Tiwari, Advocate and Mr. Sudhir Kumar Gambhir, Advocate Along with Complainant No.1 – In Person
For the Opp. Party Nos.1 and 4: NONE
For the Opp. Party Nos.2, 3 and 5:Mr. Varun Agarwal, Advocate
IMPORTANT POINT
No privity of contract - There was no privity of contract between complainants and opposite parties. No consideration was paid for by the complainants for any services promised. The contention of the complainants that there has been deficiency in service and unfair trade practice is, therefore, difficult to be sustained.
Headnote:
Consumer Protection Act, 1986 – S.21[Consumer Protection Act, 2019 – S.58] - Services – Real Estate – Allotment of Flat / Plot – Delayed Possession -No privity of contract – No consideration - Complaint dismissed - It is evident that the Development Agreement was between opposite party 1 and opposite parties 2 to 5. There was no privity of contract between complainants and opposite parties. No consideration was paid for by the complainants for any services promised. The contention of the complainants that there has been deficiency in service and unfair trade practice is, therefore, difficult to be sustained. The terms of the Development Agreement in so far as they relate to the re-construction of the Society require the opposite parties 2 to 5 to execute the works within a period of 18 months and for them to pay the residents rent at the rate of Rs.7000/- per month. This amount has been accepted by the complainants and the cheque encashed -Thus vacant possession was handed over to opposite party no.2 and the project was completed by January 2010 when the possession was handed over to the members of the Society except the complainants who refused to accept the possession – On facts, Complaint dismissed. [Paras 12 to 14].
Result: Complaint dismissed.
ORDER
Subhash Chandra, Member—This complaint has been filed under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) alleging deficiency in service and unfair trade practice by opposite parties 2 to 5 in delay in handing over a re-constructed flat of a reduced floor area in the building of opposite party no.1.
2. The brief facts of the case, as stated by the complainants, are that the complainants are owners of a flat in the Pantnagar Ganesh Darshan Cooperative Housing Cooperative Society, Ghatkopar, Mumbai who is opposite party 1 along with 31 other flat owners. Due to the building becoming dilapidated, opposite party 1 entered into a development agreement with opposite parties 2 to 5 to reconstruct the building after demolition in a period of 18 months. The terms of the agreement included providing rent of Rs.7000/- per month to each of the 32 owners per month. Opposite party 1 resolved through its proceedings of the Managing Committee on 30.09.2005 accordingly and the project was executed between 02.02.2006 to 02.08.2007. While 31 members accepted the terms and have also occupied the re-constructed flats in January 2010, the complainants have not done so and alleged that the additional 52 sq ft and elevation features was missing, the floor area of 323 sq feet offered was less than the prescribed norms for floor area of economically weaker sections (EWS) housing. They have approached this Commission and prayed that the complaint be allowed and orders be issued to:—
I. Declare that the opposite parties nos. 1 to 5 jointly and severally guilty of “deficiency of services” and “unfair trade practices” as per the provisions of the Consumer Protection Act, 1986.
II. Declare the opposite parties/respondents jointly and severally to complete all the pending work in re-development of Society and handing over peaceful physical possession of the flat along with all other facilities amenities as agreed by the opposite parties in the Development Agreement to complainants.
III. Direct the opposite parties/respondents jointly and severally to pay an amount of Rs 2,08,86,000/- to the complainants along with interest @ 21% from the date of Development Agreement till realization.
IV. Direct the opposite parties jointly and severally to pay an amount of Rs 10,00,000/- towards the mental pain, harassment and agony, legal charges and miscellaneous expenses to the complainants.
V. Award the cost of the complaint in favour of the complainants.
VI. Pass any other order or further order(s) which this Hon’ble Commission deems fit and proper under the facts and circumstances of the case and in the interest of justice.
3. The complaint was resisted by opposite parties 2 to 5 by way of reply. It was contended that the complaint was mischievous with ulterior motives since there was no privity of contract between the complainants and them. A Development Contract had been executed between opposite party 1 and the opposite parties 2 to 5 for the re-development of the Society which was demolished and re-constructed with better and additional features. The complainants had been provided a floor area of 42.25 sq mtrs., which was in addition to the prescribed floor area as claimed and much greater than the floor area that was available prior to the re-development. The non-payment of the rent to the complainants has been denied and evidence has been submitted in support of the contention that the cheque of Rs 81,000/- had been encashed by them.
4. Complainant filed their rejoinder and parties filed their written statements. Opposite parties 1 and 4 remained unrepresented despite a final opportunity to them to be present and argue. I have heard the learned counsel for complainants and for opposite parties 2, 3 and 5 who submitted that their written submissions be taken as their final arguments.
5. It is argued on behalf of the complainants that the complainants are the members of the opposite party no.1 and own a ground floor residential u
