1. HISTORY of the case in brief is as follows ,All the aforesaid complainants are the joint holders of the plot bearing No. C.S.T. Nos. 1387 and 1388 at village Dahisar in Mumbai Suburban District. These complainants entered into an agreement dated 16.11.1982 with M/s. Chavan Associates/respondent No. 2 for sell of the property. Subsequently, by supplemental Agreement dated 22.6.1989, M/s. Baluwala Builders/respondent No. 1 purchased rights in this property. As per the terms of agreement, the property was to be developed and one building namely Building N .2, in plot No. 1388 was to be handed over to the present complainants along with the area in plot No. 1388 referred to above.
2. OPPONENTS have raised certain issues which are stated below :
(1) The total financial quantum in all the 4 cases together amounts to Rs. 63,700/- and hence the complaint was not teneble before the Commission (as the jurisdiction, prior to amendment was from Rs. 5 lakhs upto Rs. 20 lakhs only). (2) The complainants want a specific performance from the opponents, which means the proceedings are triable only before the Civil Court. (3) The complainants have failed to complete the Conveyance Deed in spite of repeated requests. (4) OPPONENTS have cited certain cases, whereby they have tried to indicate that on the basis of decisions in these cases, present complaints are not teneble before the Commission.
As regards the jurisdiction of the Commission, the total demands of all the 4 complainants together comes to Rs. 63,700/-. But it is clear that all the complainants individually have filed the complaint and the quantum of damages/compensation, claimed by them is more than Rs. 5 lakhs and less than Rs. 20 lakhs. As regards the issues of specific performance, it is clear that the complaints mainly pertain to the deficiency on the part of the opponents in construction of the building.
Completion of Conveyance Deed will not come in the way of the complainants losing the complaints with the Commission and seek suitable orders.
3. FACTS referred to in the cases by the opponents differ than the facts in the present cases. Those cases cited are mainly about specific performance, fraud, etc., and hence they are not applicable. (b) Opponents submit that they would comply installation of the lift and sub-dividing the property, if the complainant and other owners completed their part of the contract and give the clear title of the property and execute the Conveyance of the said property, which also is a pre-condition of the said Agreement.
Complainants have narrated the deficiencies in the construction carried out and also pointed out the shortfalls and breaches of agreement. Following points would arise for our consideration :
(1) Whether the complainants are Consumers under the Consumer Protection Act, 1986 ? (2) Do the complainants prove deficiency in service and breaches of agreement on the part of the respondents? (3) Whether complainants are entitled to recover compensation? Our answer to the following points are as under : 1. Yes 2. Yes 3. As per order 7. After complaints were lodged with the Commission, the Commissioner namely M/s. K.C. Gandhi & Co. were appointed for inspecting the structure and detailing the deficiencies. Report of the Commissioner dated 19.3.2001 is on record and taken into consideration. 8. Subsequently, complainants independently appointed the Commissioner namely Shri Chandrashekhar Architect. The complainants have submitted the report on 16.10.2001. The same is taken on record. (1) Complainants are definitely con-sumers and are entitled to the benefits under Consumer Protection Act, 1986. (2) M/s. K.C. Gandhi, Commissioner appointed by this Commission has furnished their report, whereby he has estimated the cost of deficiencies to the extent of Rs. 3,12,000/-. (a) On going through the relevant documents and hearing the arguments of the learned Advocates for the parties, it would be clear that the present complaint and the original agreements, etc. were mainly in respect of C.T.S. No. 1388. Building B was to be painted in Snowcem colour, whereas the same is painted in cement paint. (b) Complainants have also agitated the issue of compound wall. It would be clear from the relevant documents that the present agreement mainly pertains to the structure of building No. B to be handed over to the complainants. More over, the complainants have specifically mentioned in the agreement and its schedule about the absolute ownership of the area of C.T.S. No. 1388. Thus it would clear that the compound wall should be along with the area/ground handed over to the complainant. As against this present compound wall is around the entire plot No. 1387-1388 and naturally separate compound wall is not provided along with plot No. 1388 including Building No. 2. (c) As per agreement, the complainants have to be provided with 8 flats, prayer hall and 3 shops on the ground namely Shop Nos. 2, 3 and 8. (d) Complainants have raised the issue that, they have received less area for shops. As per agreements, complainants were to be provided 3 shops with an area of 553 sq. ft. built up. As per the agreement, 8 shops were to be constructed and presently there are 9 shops at the site. It is needless to point out that there is no change in plinth area and naturally one additional shop must have reduced the area of remaining shops. As pointed out by the complainants, in all they received shop area of 475 sq. ft. carpet, as against the provision of 557 sq. ft. built up areas as per the agreement. Area of 475 carpet can be loaded with 15% to arrive at probable built up area. It would roughly 61.25. Thus there is a shortfall of 20 sq. ft. in the area received by the complainants. (e) It is noticed that the O.Ps. have observed the agreements in breach rather than fulfilment of the same. (f) We, therefore, award as follows : (i) Rs. 3,12,000/- proposed by the Architect to work out the deficiencies. (ii) Rs. 50,000/- for the purpose of painting. (iii) As regards compound wall, it is really an eye soar for the complainant as it would not be possible to construct the compound wall around the plot of the complainants (as clarified by the Commissioner in his report), due to amalgamation of two plots at i.e., 1387 and 1388. We, therefore, award Rs. 1,50,000/- as compensation for the same. (iv) As regards shortage of area in respect of shop, we award Rs. 40,000/- (Rs. 2,000/- per sq. ft.) to be given to the complainant in Complaint No. 58/1997. (v) Additional compensation of Rs. 25,000/- for delayed possession and mental agony and harassment to the complainants. (vi) We also award cost of Rs. 5,000/- to the complainants. We, therefore, order as follows:
Complaints allowed.
