Adrian Pereira vs Anita Ronald Lewis

Dr. S. M. Kantikar, Presiding Member

The instant Appeal has been preferred by the Appellant - Opposite Party under Section 19 of the Consumer Protection Act, 1986 against the order dated 29.09.2015 passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as the "State Commission"), wherein the Complaint was partly allowed and the Opposite Party was directed to handover possession of the subject flat to the Respondent - Complainant after receiving the balance consideration amount from the Respondent - Complainant.

Brief facts are that on 04.07.2001, the Complainant booked a flat in Avila building, Malad (West) for a total consideration of Rs. 21 lakh, out of which Rs. 4.50 lakh was paid in cash without a receipt and Rs. 11 lakh was paid through cheque. On 07.12.2001, a registered agreement was executed between the parties for sale consideration of Rs. 16.50 lakh i.e. 21 (total consideration) (-) 4.50 (paid in cash) = Rs. 16.50. Though not written in the agreement, it was understood that possession was to be delivered to the Complainant by December 2002. But, no satisfactory progress was made up to 15.02.2003. After a meeting, the Opposite Party assured possession of the flat within three months i.e. on or before 31.05.2003. Despite the assurance, no progress was made and therefore the Complainant wrote a letter on 26.05.2003 to the Opposite Party for opting out of the project and for refund of the entire amount paid. The letter was ignored, the refund of the entire amount paid i.e. 4.50 (in cash) + 11 (by cheque) = Rs. 15.50 lakh was not made. On 17.10.2006, i.e. about 3 years and 5 months of the said letter seeking the refund of the amount paid, the Complainant received a letter from the Opposite Party alleging that she had cancelled the agreement and paid only Rs. 11 lakh (i.e. only the cheque component, which could not be denied, the same being a bank transaction), which she could collect with interest @ 9% p.a. The Complainant refused, and called upon the Opposite Party to hand over possession of the said flat by accepting the balance consideration.

On 01.04.2007, the Complainant approached the Senior Inspector, Malad PS to take appropriate action against the Opposite Party. On 12.04.2007, the Complainant learnt that the Opposite Party was attempting to dispose of the flat in question with the services of an estate broker. Being aggrieved by the conduct of the Opposite Party, the Complainant filed a Complaint with the State Commission for delay in delivery of possession of the said flat as well as failure to obtain Occupancy Certificate and Building Completion Certificate along with a prayer to grant compensation for mental agony.

The Opposite Party filed its written version and denied all allegations by contending that the consideration was Rs. 16.50 lakh, it admitted receipt of payment of Rs. 11 lakh from the Complainant; however it denied receipt of cash payment of Rs. 4.50 lakh from the Complainant. It contended that the agreement was subsequently cancelled by the Complainant by demanding refund of payment.

After hearing the parties and appraising the evidence, the State Commission, vide its order dated 29.09.2015, held that there was deficiency on the part of the Opposite Party in not handing over possession and not obtaining the necessary certificates for the subject flat. The Complaint was partly allowed and the Opposite Party was directed to handover possession of the flat within three months after receiving the remaining consideration of Rs. 5.50 lakh as well as to provide Occupancy Certificate and Building Completion Certificate to the Complainant. The State Commission also directed the Opposite Party to pay Rs. 1 lakh as compensation towards mental agony and Rs. 25,000/- as cost.

Being aggrieved by the said order of the State Commission, the Opposite Party filed an Appeal before this Commission.

We have given our thoughtful consideration to the arguments advanced by both the sides and perused the relevant documents including inter alia the agreement and the correspondence between the parties.

The fact that the Complainant paid Rs. 11 lakh by cheque to the Opposite Party towards consideration for the subject agreement is admitted to by the Opposite Party (which it is in no position to deny, the same being a bank transaction), thereby rights and liabilities were created. It is the contention of the Opposite Party that the subject agreement was cancelled by the Complainant vide letter dated 26.05.2003. On perusal of the said letter it is evident that for more than two years, there was no construction work / development at the site of the project. The Complainant was also paying interest on the amount paid to the Opposite Party builder firm, therefore, the Complainant requested the Opposite Party to return the entire amount paid. However, the Opposite Party slept over the matter. In the absence of the entire amount being refunded, with reasonable interest, within reasonable time, it cannot be contended that the agreement stood cancelled.

As regards the delivery of possession, it is the contention of the Opposite Party that the agreement has no mention of date of delivery of possession of the said flat to the Complainant. However, the buyer cannot be made to wait for an indefinite period. The Hon'ble Supreme Court in Fortune Infrastructure v. Trevor D'Lima, (2018) 5 SCC 442 has held:

"15. Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e. the possession was required to be given by last quarter of 2014. Further, there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draws us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered. When once this Court comes to the conclusion that there is deficiency of services, then the question is what compensation the respondent complainants are entitled to?"

We find that the said contention of the Opposite Party cannot go in its favour as it was the duty of the Opposite Party itself to mention the date of delivery of possession in the agreement and failure to do so necessarily requires to be read against the Opposite Party. In all contingencies, the Complainant could not have been made to wait indefinitely for possession.

The Opposite Party has also argued that the State Commission grossly erred in disregarding the applicability of the relevant provisions of Specific Relief Act, 1963. In this regard, we note that the Act 1986 is for better protection of the interests of consumers, to provide speedy and simple redressal to consumer disputes. Section 3 specifically provides that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. That is, the remedy provided under the Act is in addition to the provisions of any other law for the time being in force; the provisions of the Act give the consumers an additional remedy besides those that may be available under other existing laws.

We specifically note that in the year 2003, the Complainant requested for refund of the entire amount paid by her, but the Opposite Party did not refund the amount paid, with or without interest, within reasonable time.

It is also pertinent that even after filing of the Consumer Complaint by the Complainant, the Opposite Party initiated legal proceedings in the Civil Court with respect to the subject agreement, which was dismissed by the Civil Court.

Clearly, the conduct of the Opposite Party has a bad air.

Briefly having discussed the afore salient features of the matter, we note that the State Commission has correctly weighed the evidence and passed a well reasoned order. The award made, essentially to handover possession on receipt of the balance consideration, is also just and equitable.

We find no reason, on fact or law, to interfere with the order of the State Commission.

The instant appeal, being misconceived and bereft of merit, is dismissed.

The State Commission's order dated 29.09.2015 is upheld and sustained. Needless to add, the State Commission shall undertake execution as per the law for compliance of its order.

A copy each of this order be sent by the Registry to the State Commission, to the Opposite Party and to the Complainant within three days of its pronouncement.