Mr. Cajetan Dennis Estibeiro, Kandivali (W), Mumbai and Others Vs. M/S. Elegant Builders and Others - Court Judgment

Per Shri P.N. Kashalkar, Honble Presiding Judicial Member

Being aggrieved by the judgment and award passed by Mumbai Suburban District Consumer Forum in consumer complaint No.87/2007 decided on 07/12/2007 whereby the Forum below partly allowed the complaint and directed the O.P.Nos.1and2/builders to pay to the complainant Rs.3,68,000/- plus Rs.54,000/- and also directed to pay compensation of Rs.10,000/- and cost of Rs.1,000/-, org. complainant has filed Appeal No.89/2008 and org. O.P.Nos.1and2/builders have filed Appeal No.260/2008. By this common judgment, we are disposing of both these appeals.

There is delay of 7 days in filing Appeal No.89/2008. Therefore, application is filed by the appellant/org. complainant. Delay is of few days. Delay is not intentional or deliberate. We are therefore inclined to condone the delay. Accordingly, delay is condoned.

The facts to the extent material may be stated as under :-

The complainant had filed consumer complaint alleging deficiency in service on the part of O.P.Nos.1and2, who are M/s.Elegant builders and O.P.No.3, Secretary of Society of the flat purchasers. According to the complainant, O.P.Nos.1and2 are the builders/developers. He had purchased flat No.304 for Rs.14,62,850/- as per agreement dated 11/11/1999. He in all paid Rs.15,03,761/- to O.P.Nos.1and2 still possession was not given though building was ready. On 15/06/2006 after receipt of Occupation Certificate in July 2005 on the request of complainant, he was given possession of the flat, whereas builders had given flats to other flat purchasers in 1999 itself. O.P.Nos.1and2 asked the complainant to bring ‘No Objection Certificate from O.P.No.3/Soceity and on this ground they delayed possession from 1999 to June 2006. However, O.P.Nos.1and2 demanded Rs.74,277/- towards maintenance charges between October 2003 to June 2006. According to the complainant he was not responsible to pay the said amount and on that count for non-payment of maintenance charges, possession was delayed by O.P.Nos.1and2. According to the complainant, during this period, he was required to spend Rs.3,68,000/- by taking premises on leave and licence. So, O.P.Nos.1and2 are liable to pay the said amount. He also pleaded that he had paid Rs.15,03,761/- in 1999 itself and since possession was delayed for more than six years, complainant pleaded that he should get interest @ 18% on the said amount from the builders. He also claimed interest on the amount of Rs.3,68,000/-, which he spent for paying leave and licence fee to the landlord. He also claimed Rs.3 Lakhs as damages for mental agony and he also claimed Rs.54,000/- from O.P.No.3 and Rs.50,000/- as compensation. He prayed that injunction should be granted against O.P.No.3 for not recovering any dues from the him since he did not take possession of the premises in the Society building. He filed affidavit and documents in support of his case.

O.P.Nos.1and2 duly received notice from the District Consumer Forum, but within stipulated time, they did not file written statement. So, matter was proceeded ex-parte against O.P.Nos.1and2. O.P.No.3 was served with notice. They filed reply on interim application, but did not file written statement. So, O.P.No.3 too was proceeded ex-parte.

Considering the affidavits and documents filed by the complainant and the pleadings of the complainant having remained uncontroverted, the Forum below held that there was deficiency in service on the part of O.P.Nos.1and2 since they delayed delivery of possession to the complainant by six years. O.P.No.3/Society also illegality demanded Rs.74,277/- and O.P.Nos.1and2 insisted that complainant should obtain No Objection Certificate from the Society/O.P.No.3 and thus also delayed the delivery of possession. Thus, Forum below held that complaint was tenable in law. It therefore passed the impugned judgement/award and directed O.P.Nos.1and2 to pay sum of Rs.3,68,000/- and also Rs.54,000/- to the complainant for delayed possession and by way of compensation it also directed payment of Rs.10,000/- for mental harassment and Rs.1,000/- towards cost. It directed O.P.No.3 not to recover any dues from the complainant till the date of possession of the flat taken by the complainant. Aggrieved by this order, O.P.Nos.1and2 has filed Appeal No.260/2008 and complainant has filed Appeal No.89/2008.

We heard submissions of Mr.A.V. Patwardhan, Advocate for the appellants/builders in Appeal No.260/2008 and Mr.Shirish Deshpande, Advocate for org. complainant, who is appellant in Appeal No.89/2008.

We are finding that on the whole, the order passed by the Forum below against O.P.Nos.1and2 is just, proper and sustainable in law. Building was completed in 1999, but Elegant builders had not obtained Occupation Certificate. They obtained Occupation Certificate in July 2005 and thereafter also they delayed possession, asking the complainant to approach Society/O.P.No.3 and to obtain No Objection Certificate. There was an Agreement of Sale between Elegant builders and complainant executed on 11/11/1999, which was duly registered. As per agreement, possession ought to have been given to the complainant within stipulated time. The possession was delayed by the Elegant builders on one or other excuses. Other flat purchasers took possession of the flats without bothering to see whether the builder was given Occupation Certificate for constructed building. But, the complainant, the disciplined man, law abiding citizen did not want to take possession unless builder obtained Occupation Certificate from the Local Authority, which Elegant builder could get in July 2005. But, even thereafter, Society had levelled illegal charges on the complainant and builder insisted the complainant to approach the Society to clear its dues and procure No Objection Certificate from the Society. Society was demanding maintenance charges from the complainant when in fact complainant had not taken possession of the flat and was not occupying flat in the year 2003 to 2006 for which period the Society was claiming maintenance charges. So, Society as well as O.P.Nos.1and2 were surely guilty of deficiency in service and unfair trade practice. They were hand in gloves just to harass complainant like anything. Taking all these facts into account, the Forum below passed reasonable order in partly allowing complaint and directing O.P.Nos.1and2 to pay a sum of Rs.3,68,000/- plus Rs.54,000/- to the complainant and also directed O.P.Nos.1and2 to pay Rs.10,000/- towards mental agony and Rs.1,000/- towards cost and directed O.P.No.3/Society not to recover any dues from the complainant till he was put in possession by the builder. The order passed by Forum below so far as O.P.Nos.1and2 is concerned is appearing to be just, proper and sustainable in law. The Forum below has rightly passed order against O.P.Nos.1and2, who were resorting to unfair trade practice and were certainly guilty of deficiency in service. Moreover, in the course of trial, O.P.Nos.1and2 had not filed written statement and grievance of the Counsel for the appellant in Appeal No.260/2008 Mr.Patwardhan was that his clients were not permitted to file written statement. Once notice is issued and party is knowing that it has to contest the matter, party has to file appearance on the first date of hearing, he has to engage Advocate and to file written statement and affidavits if party wants to contest the matter. On finding that O.P.Nos.1and2 were not interested in contesting the matter after giving reasonable time, Forum below proceeded ex-parte against them and ultimately passed the impugned order, which in our view in the circumstances obtainable is appearing to be just, proper and sustainable in law. The default was committed by the Elegant builders in contesting the matter and they again asked for second inning to protract the matter further. So, appeal filed by Elegant builders bearing No.260/2008 is appearing to be devoid of any substance. Hence, it will have to be dismissed.

Likewise, we heard Mr.Shirish Deshpande, Advocate for appellant in Appeal No.89/2008. He has filed this appeal seeking enhanced compensation and interest on every amount allowed by the Forum below in favour of the complainant.

We are of the view that the Forum below has rightly granted reliefs to the complainant and further reliefs cannot be entertained by us. The Forum below surely granted compensation of Rs.3,68,000/- plus Rs.54,000/- since he was required to procure alternate tenement for occupation during long period he was not given possession of the flat by O.P.Nos.1and2. Now, he is seeking interest on the said amount @ 18% p.a. This cannot be granted. However, greed of the complainant cannot be allowed by entertaining this appeal. We have considered all the aspects of the matter thoroughly and we are of the view that the Forum below has rightly granted compensation under the various captions. As such, this appeal for further claiming interest @ 18% p.a. on the amounts allowed by the Forum below is something, which cannot be entertained. Therefore, we are finding that there is no merit in the appeal preferred by the complainant. We are of the considered view that the forum below has tried to give adequate compensation and no further reliefs granted by us by allowing this appeal for enhancement. In the result, we pass the following order:-

Order:

1. Misc. Appl. No.140/2008 in Appeal No.89/2008 for condonation of delay is allowed. Delay is condoned.

2. Appeal No.89/2008 and Appeal No.260/2008 are dismissed.

3. Parties are left to bear their own costs.

4. Misc. Appl. No.396/2008, which is for stay stands disposed of.

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