V.B. Gupta, Presiding Member
Petitioner/O.P. being aggrieved by order dated 20.12.2011 passed by State Consumer Disputes Redressal Commission, Maharashtra, Mumbai (for short, State Commission) has filed the present revision petition under Section 21(b) of the Consumer Protection Act,1986 (for short, Act).
2. Respondent/Complainant filed a Consumer Complaint before the Consumer Disputes Redressal Forum, Mumbai (for short, Consumer Forum)on the allegations that Petitioner-firm who is Builder/Developer decided to construct buildings and respondent agreed to purchase a flat admeasuring about 885 Sq. Ft. in built-up area in the Scheme-Highland Project, for an agreed consideration of Rs.10,62,000/-The Petitioner executed a registered agreement for sale to that effect in favour of the respondent on 8.10.2001. Respondent paid booking amount of Rs.10,000/-.Thereafter, paid an amount of Rs.3,83,114/-in cash for which Petitioner issued a receipt in writing. Possession of the flat was agreed to be delivered to the respondent as early as possible. It is alleged that the construction work was stopped by the petitioner and there has been no progress of construction on account of which, there has been delay in delivery of possession of the flat by the petitioner to the respondent. It is further alleged that respondent sent three letters to the petitioner reminding it of the agreement regarding the flat and called upon it to complete the construction and put him in possession, but in vain. Thereafter, respondent sent a legal notice dated 10.5.2007 to the petitioner and when that notice was also not complied with, respondent filed a complaint before the Consumer Forum seeking direction against the petitioner, to deliver vacant and peaceful possession of the flat in question besides payment of compensation in sum of Rs.1,00,000/- or in the alternative to direct the petitioner to pay the cost of the flat, that is, Rs.10,62,000/- together with interest @ 24% p.a., on the amount in sum of Rs.3,93,114/-, which was received by the petitioner from the respondent towards part-consideration for the said flat.
3. Petitioner in its written version stated that the construction of the project-Highland Park was undertaken by it but in the midst of construction, Stop Work Notice dated 19.09.2002 was issued by the Municipal authorities, on account of which the construction activity was stopped. Then, a notice under the Monopolies and Restrictive Trade Practices Act, 1966 was issued by the competent authorities on 23.09.2002, asking the petitioner to demolish all the floors above the first floor. It is stated that in the year 2003, one Mr. Rajendra Thakkar, alongwith other citizens, filed a Public Interest Litigation bearing Writ Petition No. 379 of 2003 before Bombay High Court against Municipal Corporation of Greater Mumbai, on the issue of permission being granted to the builders for additional FSI. In that public interest litigation, Mr.J. S. Sane, Chief Engineer, Municipal Corporation of Greater Mumbai; filed his affidavit and annexed to his affidavit was a list of projects and Highland Project came to be included in that list. Thus, present project became subject matter of that public interest litigation. Thereafter, Bombay High Court passed an order on 5.5.2004, asking the Municipal Commissioner to consider the regularization of the buildings subject to the satisfaction of the provisions contained in the Development Control Regulations. Thus, according to the petitioner, unless the FSI is regularized, the work of the said project cannot be completed. Thus, petitioner has denied allegations that it is guilty of deficiency in service and has denied the allegations as regards its liability to pay compensation to the respondent.
4. Consumer Forum, vide order dated 7.10.2010 allowed the complaint and passed the following directions;
œ[2] The office of this Forum is hereby directed to release in favour of the Complainant, an amount in sum of Rs.3,93,114/- deposited with this Forum on 19/March/2008 and invested in a Fixed Deposit Receipt together with interest accrued thereon, if any after appeal period is over.
[3] The Opposite Party is hereby directed to pay to the Complainant interest @ 18% p.a., on the amount of Rs.3,93,114/- as from 08/Oct/2001 till 19/March/2008.
[4] The Opposite Party shall also pay to the Complainant, an amount in sum of Rs.10,62,000/- by way of compensation.
[5] The Opposite Party is further directed to pay to the Complainant, costs in sum of Rs.10,000/-.
[6] The Opposite Party shall comply with the foregoing order within a period of eight weeks from the date of receipt of copy of this order failing which, the Opposite Party shall also be liable to pay to the Complainant, interest @ 12% p.a., on the entire awarded amounts as from the date of expiry of stipulated period of eight weeks till realization of entire amount by the Complainant?.
5. Aggrieved by the order of the Consumer Forum, Petitioner filed (First Appeal No.1317 of 2010) before the State Commission, whereas, respondent being not satisfied with the alternative relief granted in his favour also filed (First Appeal No.548 of 2011) seeking possession of the flat in question.
6. In (First Appeal No.548 of 2011) filed by the respondent, there was delay of 218 days. The State Commission, vide impugned order rejecting the application for condonation of delay, consequently, dismissed the appeal of the respondent. Further, the First Appeal filed by the petitioner was dismissed on merits.
7. Being aggrieved by the order of the State Commission, petitioner has filed the present revision petition.
8. We had summoned the record of the Consumer Forum and perused same as well as heard the learned counsel for the petitioner.
9. As per grounds taken in the present revision petition, petitioners case is that it was in the process of securing the completion certificate for entire 7 floors by obtaining the F.S.I. clearance, but was stopped due to blanket stay granted by the High Court of Bombay. Thus, the petitioner was precluded for handing over the possession of the flat to the respondent due to legal inabilities and reasons beyond its control. As such, petitioner cannot be saddled with heavy compensation for none of fault of it.
10. Consumer Forum, in its order held;
œ14. The Opposite Party, in its written version of defence as well as in written notes of arguments, has taken stand that the reasons, which resulted into stalling further construction of the project or regularization of the project, were beyond the control of the Opposite Party. That is most selfish, mischievous and misleading statement. This is so because the Municipal Corporation of Greater Mumbai has taken an action on account of construction of second floor up to the seventh floor without there being approval and commencement certificate. The record of the case shows that the approval as well as commencement certificate was for ground + one floors only. Contrary to the same, the Opposite Party constructed a building consisting of ground + seven floors. Naturally, the construction beyond second floor being unauthorized, it invited stop work notice as well as demolition notice at the hands of the competent authorities. Now, the Opposite Party has audacity to make a statement to the effect that the factors leading to stop work notice and demolition notice were beyond its control. No person having reasonable prudence would believe this statement. The Opposite Party must have constructed second floor up to seventh floor upon accepting booking from the prospective flat purchasers and must have accepted booking amounts as well as part consideration from such prospective flat- purchasers. The Complainants flat, admeasuring 885 sq. ft., in built-up area, was valued at an amount in sum of Rs.10,62,000/-.Assuming that on each floor there are four flats, naturally the Opposite Party must have accepted bookings in respect of 28 flats i.e. flats beyond second floor up to seventh floor. If, the Opposite Party has accepted even an amount in sum of Rs.4,00,000/-,as a part-consideration from the prospective flat-purchasers, then in such a case, the Opposite Party must have earned or pocketed an amount more than in sum of Rs.1,00,00,000/-.Such a builder has shown an audacity to say that things were beyond its control and we are called upon to believe its statement. We, therefore, hold that by indulging into notorious act of going ahead with an unauthorized construction from second floor up to seventh floor, the Opposite Party has not only deceived competent authorities but also deceived the flat-purchasers who had invested their hard earned money in booking the flats in the E Wing. This fraudulent act on the part of the Opposite Party has not only affected the administration of Municipal Corporation of Greater Mumbai, but innocent flat-purchasers like the Complainant herein.
15. ?The conduct on the part of the Opposite Party is further articulated from the fact that despite three notices served by the Complainant, followed by a legal notice, the Opposite Party had not shown any courtesy to give reply to any of the notices. Only after present complaint came to be filed before this Forum, the Opposite Party came out with a defence that because of certain actions taken by the competent authorities the project could not be completed and regularized. Thus, there is no substance in the stand taken by the Opposite Party that factors beyond its control led to non-completion of project.
16. ?In the meantime, the Complainant paid an amount in sum of Rs.3,93,114/- (Rs.10,000/-+Rs.3,83,114/-)to the Opposite Party towards part-consideration against flat value in sum of Rs.10,62,000/-. The Complainant had paid an amount in sum of Rs.10,000/-before execution of the agreement and an amount in sum of Rs.3,83,114/- subsequent to execution of agreement. During the pendency of complaint, the Opposite Party deposited with this Forum, an amount in sum of Rs.3,93,114/- on 19/3/2008. Same amount has been invested under a Fixed Deposit Receipt on 24/4/2010 i.e. after lapse of about two years from the date of deposit. Now, that Fixed Deposit Receipt is yielding interest. However, here it may be noted that the Opposite Party deposited this amount with this Forum only on 19/3/2008 and utilized the same for about a period of four years.Therefore, the Opposite Party will have to pay interest @ 18% p.a.,on an amount in sum of Rs.3,93,114/-as from the date of agreement i.e. 8/10/2001 till deposit of this amount with this Forum on 19.3.2008.
17. ?Now, we turn to decide the question of award of reasonable compensation to the Complainant. The Complainant had booked a 2BHK flat, admeasuring 885 sq.ft.in built-up area. That was in the year 2001. The Complainant might be expecting possession of flat, say within a reasonable period of two years, which is a reasonable expectation of every flat-purchaser. It is revealed from the contents of the notices served by the Complainant to the Opposite Party that when the Complainant could not get possession of the flat, the Complainant had to shift to Nasik, since he could not get a place for stay at Mumbai to stay with his family. Had the project being completed within a reasonable period of two years, the Complainant would have received possession of his flat having built-up area admeasuring 885 sq. ft., say in or about the year 2003. The project is situated at Kandivali (West), Mumbai.If, a flat-purchaser now has to buy a flat at Kandivali (West),Mumbai; he has to shell out an amount around in sum of Rs.7,000/- to Rs.8,000/- per sq. ft., for booking a flat. Thus, if the Opposite Party had handed over possession of the flat to the Complainant within a reasonable period, the cost of the flat in question would have increased to an amount in sum of Rs.65,00,000/-to Rs.70,00,000/- as on today.Thus, against the fair investment in the flat in sum of Rs.10,00,000/-, the Complainant would have received the property, which would have valued, as on today, at an amount in sum of Rs.65,00,000/- to Rs.70,00,000/-.Thus, the loss caused by the Opposite Party to the Complainant, by this fraudulent conduct, is enormous and the Opposite Party has hit a middleclass person like the Complainant very badly.If, in future and on exhausting all the resources, at its command, if the Opposite Party in future gets regularized the project, the Opposite Party would dispose of the Complainants flat not at the agreed rate, which was then prevailing that was offered by the Complainant, but the Opposite Party would sell the flat at the prevailing market rates. In that event also, the Opposite Party would earn profit. Thus, in any case, the Opposite Party is going to be a winner and a poor consumer like the Complainant would be a permanent looser.
18. ?Having considered all these facts, we are inclined to accept the prayer made by the Complainant to direct the Opposite Party to pay to the Complainant, compensation equivalent to flat value of the Complainants flat i.e. an amount in sum of Rs.10,62,000/-. The view, which we have taken, gets support from the decision of the Honble National Consumer Disputes Redressal Commission in SomnathPunju Nerkar Vs. RameshHiralal Kadam III-(2008)-CPJ-59-(NC).In that case, the flat-purchaser therein had booked a flat admeasuring 600 sq. ft.,for total consideration of an amount in sum of Rs.4,20,000/- on 25.9.1996. Construction could not be completed and booked flat was not available to the flat- purchaser therein for a period of 11 years. In the meantime, the flat-purchaser had paid and the builder had accepted an amount in sum of Rs.3,00,000/- towards the flat value. On possession not being delivered, the flat-purchaser therein filed a consumer complaint. The District Forum allowed the complaint partly, with a direction to the Opposite Party/Builder therein to hand-over possession of the flat, as mentioned in the agreement, on making payment of balance consideration amount by the flat-purchaser/Complainant therein. On an appeal, the State Commission modified the order of the lower Forum and directed to hand-over possession of the flat or in the alternative to pay compensation in sum of Rs.25,00,000/- in lieu of flat minus an amount in sum of Rs.1,20,000/-. Thus, flat value was ascertained at an amount in sum of Rs.25,00,000/-. Matter was carried to Honble National Consumer Disputes Redressal Commission by the builder therein. Honble National Commission considered the escalated price of the flat and in the circumstances awarded compensation in sum of Rs.20,80,000/- and while doing so, deducted the agreed flat value of an amount in sum of Rs.4,20,000/- from the artificial value of the flat in sum of Rs.25,00,000/-. Thus, present flat value appears to be the ratio for determining the amount of compensation to be awarded. By this reckoning, in the present case, award of compensation would go beyond an amount in sum of Rs.50,00,000/- because a 2BHK flat having built-up area admeasuring 885 sq. ft., would not be less than an amount in sum of Rs.50,00,000/-. But to our surprise, the Complainant has sought compensation in sum of Rs.10,62,000/-, which was the original price of the flat agreed between the parties.Since, the Complainant himself has restricted the amount of compensation to an amount in sum of Rs.10,62,000/-, we are not in a position to award compensation more than amount claimed?.
11. The State Commission, while dismissing the (Appeal No.1317 of 2010) filed by the petitioner, at the admission stage itself observed;
œAs far as appeal filed by the builder is concerned, we are finding that main relief which was required to be granted has not been granted by the District Consumer Disputes Redressal Forum and still builder/ developer has filed this appeal just to get concession in the ultimate relief granted in favour of the complainant. Forum has simply awarded refund of money and some compensation and cost. We are finding that there is no merit in the appeal preferred by the builder. Moreover in the course of arguments it has come to our notice that after passage of the order by the District Consumer Disputes Redressal Forum, builder has sold the said flat at `55 lakhs and he is simply required to pay a sum of `10 lakhs and some amount to the original complainant (flat purchaser). In the circumstances, this appeal is also devoid of any substance and, therefore, we are not inclined to admit the said appeal.Hence the order?.
12. It is not in dispute that an agreement for sale of the flat in question was executed between the parties on 8.10.2011. However, for the reasons best known to the petitioner, it has deliberately left the date of handing over of the possession of flat in question to the respondent, as blank. This clearly shows that the date of handing over of possession to the respondent was mischievously left blank.
13. Further, the malafide intentions of the Petitioner in misrepresenting the respondent about the status of various so called sanctions obtained for the purpose of flat in question, are writ large from day one. As noted above, agreement for sale was executed on 8.10.2001, but petitioner had no permission under the Maharashtra Regional and Town Planning Act, 1966 (for short, Maharashtra Planning Act) to make any construction as apparent from the copy of notice issued to the Petitioner under Section 53(i) of the Maharashtra Planning Act.(Placed at page no. 115 of the Paper-Book)which read as under;
œMUNICIPAL CORPORATION OF GREATER MUMBAI NO.CE/16535/BP(WS)/AR of 23 SEP 2002
APPENDIX- 6
NOTICE UNDER SECTION-53 (1) OF THE
MAHARASHTRAREGIONAL AND TOWN PLANNING ACT, 1966
To,
ShriShailesh Vora,
Owner,
1st Floor A Wing.
DattaniGowers.
Near Kora Kendra, S. V. Road, Borivali (West),
Mumbai-400 092.
Sir,
Whereas the undersigned has been appointed as officer by the Municipal Commssion under Section 152(1) of the Maharashtra Reginal and Town Planning Act,1966,(hereinafter for brevitys sakereferred to as œthe said Act?).
AND WHEREAS the undersigned has been empowered to exercise and perform the powers and functions of the Planning Authority under Section 53 of the said Act:-
AND WHEREAS it has been reported to me that you have commenced, undertaken or carried out development or instituted or changed the use of the land described in the Schedule appended below:
(i) without the permission required under the Act,
(ii) which is not in accordance with the permission granted.
You are, therefore, hereby called upon to demolish the structure or the building on plot bearing C.T.S. No. 812, S.No.37, H.No.15 of village Kandivali, Kandivali (West) within one month, from the date of receipt of this notice by you.
Please note that on failure to comply with the aforesaid requisition, you will be liable for prosecution under the said Act and the aforesaid requisitions will be carried out at your risk and cost:.?
14. Thus, petitioner from day one, that is from the date of the execution of agreement, had the malafide intention to grab the hard earned money of the respondent. Admittedly, petitioner had been enjoying the money of the respondent for the last more than two years. Further, even after getting two adverse finding from the Fora below, petitioner is in no mood to refund the lawful money deposited by the respondent. Furthermore, a crucial fact observed by the State Commission, is that builder has sold the said flat at `55 lakhs and he is simply required to pay a sum of `10 lakhs and some amount to the original complainant (flat purchaser). These findings of the State Commission speaks volume about the ulterior motive and malafide intentions on the part of the petitioner.
15. It is also well settled that under Section 21 (b) of the Act, scope of revisional jurisdiction is very limited and this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
16. Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3)Scale 654 has observed ;
œAlso, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora?.
17. It is also well-settled that every litigation has to come to an end ultimately. It is not that every order passed by the judicial Fora is to be challenged even if the same are based on sound reasonings. Here, both the fora below have given finding of facts that petitioner had acted in a fraudulent manner in this case. We find no reason to disagree with findings of facts given by both the Fora below;
18. In RavinderKaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ;
œCourts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system.?
19. It is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless petitions in different foras. Time and again Courts have held that if any litigant approaches the Court of equity with unclean hands, suppress the material facts, make false averments in the petition and tries to mislead and hoodwink the judicial Forums, then the petition should be thrown away at the threshold. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the decree holder the fruits of the decree must be dealt with heavy hands. Unscrupulous builder like petitioner who after taking substantial cost of the building do not perform their part of obligation, should not be spared. A strong message is required to be sent to such type of builders that this Commission is not helpless in such type of matters. Therefore, it is a fit case where punitive damages under Section 14 of the Act, should imposed upon the petitioner and same shall be paid to the complainant.
20. But question which arise for consideration is as to what should be the quantum of the damages which should be imposed upon the pertitioner for trying to drag the respondent upto this Fora, when petitioner had no case at all.
21. Apex Courtin RamrameshwariDevi and Ors. Vs. Nirmala Devi and Ors. (Civil appeal Nos.4912-4913 of 2011 decided on 4.7.2011 has laid down the following guidelines while imposing costs;
œ54. While imposing the costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.
55. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellant in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts the appellants have also wasted judicial time of the various courts for the last 40 years.
56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well-reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs.2,00,000/-We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation?.
22. Recently, Supreme Court in an appeal filed by ChennaiPort Trust against an order of the Madras High Court observed;
œFor decades, courts across the country witness appeals on frivolous grounds, resulting in wastage of public money and consuming valuable time of the Courts. This happens because officers involved in these frivolous appeals are not personally responsible and dont pay from their pockets?.
23. Now, recently, in ShivalikVihar Sites Pvt. Ltd. and Ors. Vs. Darshan Singh, Special Leave to Appeal (Civil) Nos. 33470 and 34016 of 2012 decided by Honble Supreme Court on 10.12.2012, where the appeals preferred by Petitioners under Section 15 of the Act were dismissed by the State Consumer Disputes Redressal Commission which agreed with the District Forum that non delivery of the flats to the respondents amounting to deficiency in service. The petitioner filed revision petitions before this Commission, which were dismissed with costs of Rs.50,000/-(Rupees Fifty Thousand only) in each case. Order of this Commission was challenged before the Apex Court. The Honble Supreme Court observed;
œWe are further of the view that the National Commission has been more than lenient because small amount of cost of Rs.50,000/- was imposed while dismissing the revision filed in the execution matterS?.
24. Hence, taking a clue from the above observations made in ShivalikVihar Sites Pvt. Ltd. and Ors.(supra), we dismiss the present revision petition with cost of Rs.50,000/-(Rupees Fifty Thousand only.
25. Petitioner is directed to deposit the cost by way of demand draft in the name of Consumer Legal Aid Account of this Commission within six weeks. In case, it fails to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
26. Record of Fora below be sent back forthwith.
27. List on 31st January, 2014 for compliance.