[NATIONAL CONSUMER DISPUTE REDRESSAL COMMISSION]
Asiatic Estate Developments
v
Shamsunder Paliyenkar
DR. P D SHENOY (MEMBER)
17 May 2007
BENCH
K S GUPTA (PRESIDING MEMBER) & DR. P D SHENOY (MEMBER)
COMPARATIVE CITATIONS
2007 (1) CCC 410, 2007
CASE NO
Revision Petition No. 1781 of 1999
LAWYERS
A Nargalkar, Nitin R S Bodke
.JUDGMENT TEXT
The Judgment was delivered by : DR. P D SHENOY (MEMBER)
1. It is the say of Shri Shamsunder Paliyenkar that opposite parties No. 1, 2 & 3 before the District Forum had agreed to sell the flat No. S 12 on the second floor of Evergreen Apartments situated at Khorlim, Goa to him. He was required to pay a sum of Rs. 1, 84, 000/ - on handing over the possession of the flat after obtaining necessary occupancy certificate from the opposite party No. 4 before the District Forum i.e. Mapusa Municipal Council. Though the complainant paid the entire amount by raising loan through financial institutions and also by private borrowings, the opposite parties No. 1. 2 and 3 did not offer possession till the date of the complaint. Though the opposite parties No. 1, 2 and 3 were supposed to hand over the possession of the flat on 31.07.1991 they did not do so nor OP No. 4 - Municipality grant the occupancy certificate. He brought to the notice of the opposite parties No. 1, 2 and 3 that due to defects in the construction and faulty design, the building is bound to collapse one day or the other and therefore is unsafe for human habitation and, therefore, he claimed in total Rs. 4, 85, 000/-. It was contended by the OP Nos. 1 to 3 that the complainant ordered changes in the said flat from time to time and the flat was actually delivered on 28th April, 1993 and the complainant was already residing in the said flat. Further, the complainant was in default in making payment of installments in time and there was no faulty design in the building.
2. The District Forum held that the possession has not been given to the complainant as per clause 6 of the agreement. Accordingly, the District Forum directed to provide alternate premises within one month from the date of its order or in the alternative the opposite parties No. 1 to 3 shall pay Rs. 4, 85, 000/- to the complainant with interest @ 18% per annum from 31.07.1991 till realization of the amount.
3. Aggrieved by the order of the District Forum, Asiatic Estate Developments filed an appeal before the Goa State Consumer Disputes Redressal Commission. The State Commission ordered that alternate premises of the similar dimensions and in the same locality may be given to the complainant alongwith 18% interest per annum on the amount of Rs. 1, 84, 000/- paid by him in installments from 01.08.1991 i.e. the date on which they were required to deliver possession of the flat till its actual realization towards compensation for the loss and mental anxiety. Alternatively, the appellant shall pay the amount corresponding to three times the amount paid by the respondent towards the price of the flat i.e. a sum of Rs. 5, 52, 000/-and such payment be made within 30 days from the receipt of this order failing which the same will carry interest @ 18% per annum till its full realization. It also imposed a cost of Rs. 2000/-.
4. Dissatisfied by the order of the State Commission, the builder has come up in revision. The learned Counsel for the builder submitted that the possession was given way back in 28.08.1993. The learned Counsel tried to show us a few photocopies of the bills to support his argument that the complainant was staying in the said premises. He showed us the receipt dated 28.08.1993 wherein final payment was made stating that on which date the possession was handed over to the complainant. He further urged that the compensation awarded by the fora is too high for which there was no evidence. He also clarified that the petitioner is not in a position to give alternate premises to the complainant.
Findings:
5. A perusal of the records does not show that the possession was taken over by the complainant. Generally the builder obtains the certificate to this effect from the buyer. What we see is only the certificate dated 06.09.1993 issued by the builder stating that the builder has received the full payment towards the flat. Further, the samples of occupancy certificates issued by the Mapusa Municipal Council have been produced and not the actual one, in-respect of Evergreen Apartments wherein the complainant was allotted a flat onginally. Learned Counsel for the complainant has also submitted that the builder is not in a position to provide alternative flat which means that the complainant has to buy alternate flat at the current price. It is a well-known fact that the prices of real estate have skyrocketed in the recent past. It is a fact that the complainant has borrowed money from the financial institutions to finance the flat in question. We have no reasons to disbelieve the affidavit filed by Shri Mahadev V Naik Tuenkar, Civil Engineering Consultant wherein he has certified that the building has developed cracks, vertical as also horizontal from the top floor to the ground floor on eastern side and he has not noticed any approved plans annexed to the agreement between the parties. No occupancy certificate conforming to the Mapusa Municipal Council Building Bye Laws and Regulations, 1988 has been filed.
6. Accordingly, we do not see any material irregularity or jurisdictional error in the order passed by the State Commission warranting our intervention under Section 21 (b) of the Consumer Protection Act, 1986. Hence, this revision petition is dismissed. There shall be no order as to costs.
Revision petition dismissed.
