1. -THIS appeal is directed against the order dated 20. 7. 2006 passed by the District Consumer Disputes Redressal Forum, Raipur (hereinafter referred to as ''district Forum'' for short) in Complaint Case No. 155/2005, whereby the complaint was allowed.
2. IN brief facts of the case as narrated in the complaint are that the complainant had booked Shop No. 9 of the commercial complex under construction by the OP and out of total consideration of Rs. 1,10,000 the complainant had paid a sum of Rs. 45,000 on 9. 9. 2002 towards booking amount. At the time of booking the complainant was assured that the construction of shops will be completed within 6 to 8 months and after taking balance payment the shop will be handed over to the complainant. The OP failed to complete construction within the stipulated period and the complainant made repeated requests to the OP for handing over the possession of the shop but to no avail. On the contrary, the OP had sent a legal notice dated 7. 3. 2005 informing, that as the complainant had not deposited balance amount the shop was sold to some other person and the complainant could take refund within a period of 7 days. The complainant sent reply to the said notice. It is further averred in the complaint that the construction was not completed till the date of complaint. The act of retaining money of the complainant for a period of three years without completing construction amounted to deficiency in service. The complainant had prayed for direction to hand over possession of shop or alternative shop together with compensation and costs.
The appellant/op had in the written version averred that the remaining consideration was to be paid by the complainant within a period of one month and thereafter within a period of 6 to 8 months the possession of the shop was to be handed over but the complainant failed to make payment on time. The amount was not paid despite several remainders and on the contrary, the complainant had expressed his inability for paying the amount and wanted the money back. As the OP was prepared to refund the booking amount, he had sent legal notice and in reply to the same, the complainant made an illegal demand of the Rs. 1,45,000. By way of additional pleadings, the OP has raised objection regarding jurisdiction of the Consumer Fora and had alleged that the complainant is not a consumer. It was further averred that the complainant himself has committed breach of contract and in the circumstance remedy, if any, is before the Civil Court. It was further averred that the subject shop was already sold to someone else and fact was communicated to the complainant vide legal notice. The demand of Rs. 1,45,000 made by the complainant is illegal and the complaint is misconceived, hence the same may be dismissed subject to costs.
The learned District Forum allowed the complaint.
3. ARGUMENTS of both the learned Counsel heard and perused the record.
During proceedings of this appeal learned Counsel for the appellant submitted on 24. 11. 2006 that all the shops of the shopping complex have already been sold and he had sought time for filing affidavit in support of the statement and also to place photocopies of the Sale Deeds on record for proving that all the shops had been sold. Subsequently, affidavit of the OP/appellant and also Sale Deeds were placed on record. However, regarding shop No. 8 instead of Sale Deed, Possession Letter was filed. Complainant / respondent also filed his own affidavit and stated that shop No. 8 is still vacant.
4. IN view of the aforesaid factual conditions the controversy is to be decided. The learned Counsel for the appellant assailed the impugned order and urged that the learned District Forum has failed to appreciate evidence led by the OP and also erred in relying on the evidence of the complainant. He further submitted that the Forum misread the contents of the receipt dated 9. 9. 2002 and failed to understand the intention of parties. He further submitted that the Forum failed to appreciate the fact that there was no deficiency on part of the OP and on the contrary it was the complainant who had failed to perform his part of contract and to pay balance amount of price of the shop. Hence, the impugned order cannot be sustained. He prayed that the appeal may be allowed and the complaint, be dismissed.
As against this, the learned Counsel for the respondent supported the impugned order and submitted that earlier the matter was decided by the District Forum on 1. 3. 2006 and the OP had filed appeal No. 100/06 against the said order but due to technical flaw in the order, the case was remanded back to the District Forum. It was after this that most of the Sale Deeds were executed. This shows mala fide intention of OP/appellant. He further submitted that shop No. 8 is still available with the appellant/op and he may be directed to hand over possession of the said shop to the complainant/respondent. He further submitted that the prices of the shops in the said area have multiplied many times. He prayed that appeal be dismissed and suitable order for delivering possession of shop No. 8 may be passed.
While passing the impugned order, the learned District Forum has dealt with the controversy in detail and has assigned valid reasons for arriving at the conclusions. We are of the opinion that in case the balance amount towards the shop was to be paid within one month of payment of booking amount and the said amount was not so paid by the complainant as alleged by the OP, the OP/appellant ought to have asked the complainant in writing to deposit the amount prior to selling the said shop to someone else. Legal notice dated 7. 3. 2005 was sent after the subject shop was sold but no such notice or letter was sent to the complainant prior to the alleged sale. Such act on part of the OP / appellant certainly amounted to deficiency in service.
5. IT is further noticed that as pointed out by the learned Counsel for the complainant/ respondent most of the Sale Deeds were executed after the case was remanded back to the District Forum, due to technical imperfection, in appeal No. 100/06 vide order dated 10. 4. 2006. It is noticed that the District Forum had allowed the complaint vide the first order dated 1. 3. 2006 and the OP was directed to hand over possession of the shop No. 9 or in the alternative any other completed shop on payment of balance amount and was further directed to pay compensation and costs. It appears that since the OP was apprehensive that a similar order was likely to be passed by the District Forum, he sold the remaining shops during pendency of the matter before the District Forum. Such an attitude on part of the OP/ appellant cannot be approved. It is apparent that the OP/appellant had sold the shops with the intention to defeat or frustrate the order to be passed by the District Forum. This shows mala fide intention on part of the OP/appellant, hence he does not deserve any sympathy. It is a matter of common knowledge that prices of real estate in the city are soaring high and have risen atleast four times.
6. IN view of the factual position that sale deeds regarding all other shops except shop No. 8 have been executed and registered and a person has been put in possession of shop No. 8 after receiving entire consideration, it appears just and proper in order to put the controversy at rest, to direct refund of amount, with compensation and costs.
For deciding the amount of compensation we looked at the Sale Deeds filed by the appellant. While assessing the amount initial price of shop of Rs. 1,10,000 admittedly settled with the complainant is also to be kept in mind. It appears that Sale Deed of shop No. l was executed and registered with the Sub-Registrar in favour of Purshottam Das Hariramani and Smt. Varsha Hariramani on 2. 9. 2004 for a valuable consideration of Rs. 70,000. It further appears that the Sale Deeds executed in the year 2006 have been for a lesser amount i. e. Rs. 50,000 or Rs. 60,000. As observed earlier also, it is a matter of common knowledge that after the year 2000 i. e. when the State of Chhattisgarh came in existence, the prices of real estate have been soaring higher and higher. In view of the fact that price of the shop was fixed at Rs. 1,10,000 in the year 2002 i. e. when the complainant booked the shop by paying the Booking Amount of Rs. 45,000, it cannot be believed that the price of the shop has decreased to Rs. 70,000 in the year 2004 and has further decreased to Rs. 50,000 or Rs. 60,000. Hence, the Sale Deeds cannot be made basis for fixation of the amount of compensation.
Learned Counsel for the complainant/respondent submitted that the price of similar shop as was booked by him with the appellant would now be manifold. We have also taken into consideration the fact that the OP /appellant has enjoyed money of the complainant for a long period of more than 5 years and the complainant will have to search for some other alternative accommodation for starting his grocery shop for which he had booked the subject shop and the said accommodation would only be available to him on price which has escalated during all these years.
7. IN view of the above discussions, it is clear that the appellant has chosen to sell, allot and give possession of the shops including the shop booked by the complainant / respondent, to avoid compliance of the impugned order. Therefore, the directions of the District Forum that the possession of shop No. 9 be given to the complainant/respondent, booked by him, cannot possibly be complied with as the appellant has created third party interest therein. Therefore, the said directions deserves to be modified in the aforesaid changed circumstances. As noticed above, the conduct as above of the appellant certainly is not justified and is condemnable. Keeping in view the conduct as above and circumstances of the case and the fact that OP/appellant has retained a substantial sum of Rs. 45,000 for a long period with him, resulting in loss and inconvenience to the complainant and as the appellant builder is now not in a position to hand over the possession of shop No. 9 to the complainant/respondent, as was directed by the District Forum; instead of the impugned order, it is directed that the OP/appellant shall pay to the complainant/respondent a sum of Rs. 2,00,000 (Rupees two lacs ). The said sum will include amount of compensation for mental harassment, inconvenience and financial loss to the complainant as also the amount of Rs. 45,000 deposited by the complainant and liable to be refunded by the OP/appellant.
Accordingly, the impugned order stands modified. It is directed that the appellant shall pay to the respondent a sum of Rs. 2,00,000 (Rupees two lacs) within a period of 45 days from the date of this order failing which interest @ 12% p. a. shall be payable on the said amount, from the date of default. OP/appellant shall also pay to the complainant/respondent cost of the proceedings including that of the complaint as well as of this appeal, which is quantified at Rs. 5,000 (Rupees five thousand ). Appeal disposed of.
