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M/s. A.G. Developers vs. Shri Amar Kumar Chabra & Ors dated 2012-10-12


REVISION  PETITION  NO.   1510    OF   2011
Application for Stay
(From the order dated  24.1.2011  in  Appeal No.905/2008  
  of the State Commission,  Maharashtra)
M/s. A.G. Developers
Thru’ partner Mr. Abdul Khalid Bhati
Accost, 151, Pali Hill Road,
Bandra (W), Mumbai – 400 005                             ….Petitioner
1.       Shri Amar Kumar Chabra
2.       Mrs. Leena Amarkumar Chhabra
          R/o Upavan,
          Plot No.63-A9, North Avenue Road,
          Santacruz (W), Mumbai – 400 054.             ..Respondents
For the Petitioner (s)     :        Mr. Anand Patwardhan, Advocate 
Pronounced on:    12th  October, 2012
          In this Revision Petition there is challenge the order dated 24.1.2011, passed by State Consumer Disputes Redressal Commission, Maharashtra (for short, ‘State Commission’).
2.       Brief facts are that respondents no.1 and 2/complainants no.1 and 2 booked Flat No.502 in proposed building ‘Shivanjali’ being developed by petitioner/opposite party no.2.   Total cost of flat was Rs.40,25,000/- and flat was to be divided into 502A and 502B. Respondents no.1 and 2,  paid Rs.19 Lakhs to the Petitioner on 29.6.1998. Despite receipt of this amount,  petitioner avoided to execute the agreement of sale in favour of the respondents.  Even thereafter,  respondents  got sanctioned  Rs.12 Lakhs from the Financial Institution but  since Petitioner had not executed an agreement of sale, respondents could not procure sanctioned loan from the Financial Institution. Thereafter, respondents sent notices through their Advocate.   Despite notice, petitioner  did not execute the agreement of sale in their favour.  In July 2003, respondents found that flat No.502 was appended to Flat No. 501. This was objected by the respondents and since they had objected to this fact, petitioner  did not execute agreement of sale in their favour. Therefore, respondents filed consumer complaint claiming possession of the flat, damages of Rs.1 Lakh, expenses of Rs.45,000/- and compensation of Rs.50,000/-.
3.       Opponent No.1 (before the District Forum ) was not served by the respondents.  So,  complaint was dismissed against him.  
4.       Petitioner in its written version denied the allegations made by the respondents.  As per petitioner,  respondents were in arrears and they had not paid full consideration.  That is why, petitioner could not construct the flat. Accordingly,  there is no  deficiency in service of any kind and prayed for dismissal of complaint.  
5.       District Consumer Forum, vide its order dated 9.5.2008,  allowed the complaint partly and directed the petitioner to execute agreement of sale within 15 days in favour of the respondents in respect of flat No.502.  It also directed  the petitioner to pay Rs.50,000/- as compensation and Rs.5,000/-  as cost.
6.       Aggrieved by the order of District Forum, petitioner filed an appeal, which was dismissed by the State Commission, with cost of Rs.5,000/-.
7.       Hence, this revision.
8.       It has been contended by learned counsel for petitioner that respondents  booked a flat for which they  paid an amount of Rs.19,00,000/- as part consideration, out of total consideration of Rs.40,25,000/-. Since, respondents did not make the balance amount, the allotment of flat was cancelled.   Further, petitioner was ready to give the possession to the respondents but respondents failed to pay the balance amount and since the sanction was withdrawn, the petitioner could not give possession to the respondents. Thus, there is no deficiency on the part of the petitioner.
9.       It is further contended by learned counsel for the petitioner that the project was delayed due to unavoidable reasons which were not in control of the petitioner.  Notwithstanding the same, petitioner has completed the building partly,  but the said building  was labeled as unauthorised by the Municipal Corporation.  Therefore, the rest of the building and the project  remained incomplete.  Lastly,   it is contended that petitioner never made any promise to handover the possession within a year.
10.     District Forum in its order has held;
“Considering the above facts and circumstances, there is deficiency-in-service of the Respondent. However the specific possession is not specified therefore there is second deficiency-in-service therefore complaint is admitted and same is taken for decision.
        As the respondent  is responsible for entering Agreement to in favour of the complainant and same will be followed within 15 days from the order of this Forum with cost and possession date will be fixed and order be implemented.
        As the complainant has not paid entire consideration amount, therefore it is not just and proper to pass order to give possession of the flat in favour of the complainant.
         As per the complainant, the flat No.502’s part portion was added to flat No.501 as the Respondents has admitted the fact in their written statement.  However at that the complainant the flat No.502 area admeasuring about 1150 sq. ft. built up was mentioned, therefore the respondent is bound to give the flat No.502 therefore the above binding on the respondent is cancelled.”
11.     State Commission,  while upholding the order of District Forum has held;
        “We are finding that the order passed by the District Consumer Forum partly allowing the complaint is just, proper and it is sustainable in law.  When the complainants paid total amount of Rs.19 lakhs in cheques besides some cash amount, it was the duty of the appellant to execute agreement of sale in their favour.  Moreover, we are finding that M/s. A.G. Building is unable to continue with the construction because of irregularities he had committed in making construction and the Corporation has taken strong objection to the appellant carrying on construction without permission and it is unlikely that the appellant would get completion certificate and occupation certificate by the way he had constructed the building and left it in incomplete stage. But, then, since the respondents had paid more than 20% amount of the total consideration of the flat i.e. Rs.19 Lakhs, it was the duty of the appellant to execute agreement of sale and to register it in favour of the complainants. So, this was clearly a contractual as well as statutory obligation on the part of the appellant and in not carrying out the said obligation he was surely deficient in service and guilty of unfair trade practice and therefore, we are finding that the order passed by the District Consumer Forum in favour of the complainants is just, proper and it is in conformity with the provisions of the Maharashtra Ownership of Flats Act, 1963 and the said order does not call for interference on any ground whatsoever. We are therefore finding no substance in the appeal preferred by the  opponent No.2. Hence, we pass the following order :-
     -: ORDER :-
1.  Appeal stands dismissed.
2. Appellant to bear his own cost and to pay Rs.5,000/- as cost to  
     the respondents/org. complainants.”
12.      It is an admitted fact that respondents had paid Rs.19,00,000/- out of total consideration of Rs.42,25,000/-.  Till date, they have not been handed over the  possession of the flat on the plea of the petitioner that respondents are defaulter and have not paid the balance amount.  However,  it has been admitted by the petitioner that they did not have the proper sanction plan for the building in which respondents had booked  the flat, as the building is an unauthorised one.
13.       There is nothing on record to show that  petitioner ever told the respondents at the time of taking Rs.19,00,000/- from them that petitioner’s building is unauthorised one and he has no proper sanction from the concerned authorities.  Thus, deficiency on the part of the petitioner is writ large in this case.
14.      In Lalit Kumar Gupta & Ors.  Vs. DLF Universal Ltd. (First Appeal No.88 of 1999 and 345 of 2001) decided on 6.5.2002,  this Commission  has laid down;
“That there has been a delay in delivery in handing over the possession of the Town House which is a deficiency in service within the definition of this word as per CPA, 1986.”
15.    Hon’ble Supreme Court in Mudigonda Chandra Mouli Sastry vs. Bhimanepalli Bikshalu and others, (AIR 1999 (SC) 3095) has observed;
“It was also not open to the High Court in exercise of its revisional jurisdiction to have indulged in a reassessment of evidence and thereby interfered with the finding of the facts recorded by the two Courts below.”
16.    Present revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986.  It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order. 
17.    Apex Court,  in Rubi (Chandra) Dutta vs. United India Insurance Co. 2011 (3) Scale 654 observed that;
“Also, 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 that 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 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 finding of two fora.”
18.       Petitioner/builder in the present case “wants to have the cake and eat it too”, as admittedly it has received about 50% of the amount of the flat.  Thus, petitioner being the builder is enjoying the possession of the flat as well as substantial amount of consideration paid by the respondents.  On the other hand, respondents after having paid substantial amount of consideration are still without any roof.
19.     Such type of unscrupulous act on the part of petitioner/builder should be dealt with heavy hands, who after grabbing the money from the purchaser, enjoy and utilize their money but does not hand over the flat, on one pretext or the other.  Petitioner has made respondents  run from one fora to other fora during last nine years so that respondents cannot have any roof over their head and  petitioner can go on enjoying respondents’ money without any hindrance.
20.     Since, both fora below have given detailed and reasoned order which does not call for any interference nor the same suffer from any infirmity or erroneous exercise of jurisdiction.  Hence, the present petition is nothing but gross abuse of the process of law and the same is totally frivolous in nature, which is required to be dismissed with punitive cost of Rs.30,000/- (Rupees Thirty Thousand only).  Accordingly, present petition stands dismissed with cost of Rs.30,000/-. Out of this cost, Rs.15,000/- shall be paid to the respondents.
21.     Petitioner is directed to deposit the cost by way of demand draft for a sum of Rs.15,000/- in the name of “Consumer Legal Aid Account” and balance cost of Rs.15,000/-,  in equal share in the name of respondents, within four weeks from today.
22.       In case the costs are not deposited within the prescribed period, the petitioner shall be liable to pay interest @ 9% p.a. till realization.
23.       Cost awarded to the respondents shall be paid to them only after the expiry of period of appeal or revision preferred, if any.
24        Pending application stands disposed of.
25.       List for compliance on  30.11.2012.

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