Rizvi Estates and Hotels Pvt. Ltd., Bandra (W), Mumbai Vs. Mr.Parasnath Mishra and Dr. Rahul Parasnath Mishra Santacruz (W), Mumbai - Court Judgment

Oral Order:-

Per Shri S.R. Khanzode, Honble Presiding Judicial Member

This appeal arises out of order/award dated 28/07/1999 passed in consumer complaint No.322/1996, Mr.Parasnath Mishra and Anr. V/s. Rizvi Estates and Hotels Pvt. Ltd. by Mumbai Suburban District Consumer Disputes Redressal Forum (‘Forum below in short). A consumer complaint was made to claim back the amount deposited with the builder towards stamp duty for specific purpose and which the builder has not utilized. Forum below awarded the claim and feeling aggrieved thereby, the builder preferred this appeal.

Undisputed facts are that respondents/complainants agreed to purchase flat Nos.C-101, C-102 and C-103 from the appellant/original opposite party (hereinafter referred as ‘builder) as per the agreements executed on or about 29/09/1986. It is also not disputed that consequent to the said agreements, builder recovered stamp duty from the flat purchasers including complainants viz. flat purchasers of the flats Nos. C-101, C-102 and C-103 respectively amount of Rs.33,000/-, Rs.47,520/- and Rs.47,520/-. However, builder did not utilize said amount towards stamp duty. The agreements were also not lodged till Amnesty scheme came and under which it is the flat purchasers, who paid the stamp duty and penalty as per the scheme. Thereupon, when the builder was asked to repay and refund the stamp duty deposited with it by the complainants/flat purchasers and since the builder did not refund this amount, the consumer complaint is came to be filed.

We heard Mr.Balasaheb Deshmukh, Advocate for the appellant and Mr.Shirish Deshpande, Advocate for the respondents. Perused the record.

Admittedly, there is relationship of flat purchasers and builder between the parties inter se. It is also undisputed that, whether as per the terms of the agreements or otherwise, it is the builder who has collected stamp duty from the flat purchasers and complainants deposited the amount referred earlier with the builder and builder acknowledged the same by issuing receipts. Therefore, since amount has connection and nexus with the construction and sale of the building, complainants are consumers within meaning of Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act) and non-payment for refund of the stamp duty collected but unutilized would also amounts to deficiency in service since corresponding legal obligations, the builder failed to satisfy. Therefore, objection of the appellant/builder that respondents/complainants are not the consumers within meaning of the Act is devoid of any substance.

Coming to the point of limitation, we find that amount collected for specific purpose that is to pay stamp duty when occasion arises, limitation would start when the complainants under the Amnesty scheme paid the stamp duty and thereafter claimed back refund of the amount deposited with the builder. Till then the builder kept the amount in his custody as Trustee of the flat purchasers. Therefore, objection as to point of limitation also has no merit. We hold accordingly and rejected the objection. As far as attack on the order of Forum below on the ground that it is an unreasoned order is concerned, considering the totality of the facts, we find no merit in the same.

Appellant/builder wanted to rely upon decision of the Honble National Commission in the matter of Mahanagar Telephone Nigam Ltd. V/s. Shri V.K. Ahuja in R.P.No.2597 and 2598 of 2005 dated 20/01/2009, 2009 (2) CPR 303 (NC). We find the judgement is cited out of context and has no application in the background of the case in hand.

Other objection raised by the appellant/builder is about not giving them adequate opportunity. The record before us shows that appellants were not represented by an Advocate, but by their employee one Mr.Phiroz. Besides that as recorded in the impugned order itself, after leading evidence, at the stage of arguments, written arguments were submitted by the appellants/builders. At the time of filing said written arguments, request for adjournment was perhaps made, but was not accepted or granted. It does not mean that no opportunity was given to the appellants/builders so as to claim that their basic right of hearing was abrogated. Therefore, we find this argument is also devoid of any merit.

Admittedly, flat purchasers who were required to bear their own costs of paying stamp duty with penalty as per the Amnesty scheme. Thereafter, they claimed back the amount kept in deposit with the builders towards stamp duty by them. Pointing the terms of agreements, it is argued on behalf of the builder that it is the flat purchasers who were to lodge documents with the Sub-Registrar and on receiving intimation thereof, builder has to take further action. It does not mean that builder was just holding the amount collected by him towards stamp duty and there was no corresponding legal obligation on the builder to utilize that amount for the specific purpose. Once, flat purchasers intimated to the builder that they have paid the stamp duty under the Amnesty scheme, it is corresponding legal obligation of the builder towards flat purchasers to refund that amount and once they failed to discharge that obligation, they are guilty of deficiency in service within meaning of the Act. Therefore, Forum below rightly directed the builder to refund that amount to the flat purchasers.

Other ground of objection taken by the appellant/builder is about interest awarded @ 18% p.a. Considering the totality of the circumstances, in general nature of agreements between builder and the flat purchasers since this interest is awarded by way of compensation and since admittedly, the builder has withhold that amount even after demanded by the flat purchasers, we find the award of interest @ 18% p.a. by way of compensation from the date of respective payments to the builder of the said amount is quite justifiable and cannot be said as arbitrary. Hence, we find no fault with the impugned order/award passed by the Forum below.

For the reasons stated above, we hold accordingly and pass the following order :-

Order:-

1. Appeal stands dismissed.

2. Appellant to bear his own cost and pay Rs.2,000/- as cost of this appeal to each one of the respondents.

3. At this stage, appellants Advocate requested to keep the order passed in abeyance. Request rejected.

4. Copies of the order be furnished to the parties.