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Judgment
Dr. Sadhna Shanker, Member
The present appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”) by Air India Limited (hereinafter referred to as the ‘appellant builder’) assailing the order dated 05.02.2019 passed by the State Consumer Dispute Redressal Commission, Maharashtra (hereinafter referred to as the “State Commission”) in complaint No. 215 of 2016, whereby the complaint was partly allowed.
The facts, in brief, are that the appellant builder, a company registered under the Companies Act, 1956 operating in the aviation sector, proposed to CIDCO for allotment of land at Nerul in Navi Mumbai to construct flats for its employees. On 30.01.1992, the appellant builder successfully executed a lease agreement with CIDCO for the plot area of approximately 1,00,021.60 sq. mtrs. for a period of 60 years, later extended to 90 years, at the rate of Rs.750/- per sq. mtrs. The appellant builder floated a scheme to sell flats to its employees and issued a general notice on 06.01.2005 informing them about four types of flats (Type A, B, I, and II) available for sale at respective per sq. ft. rate.
The complainant, responding to this notice, applied for a Type B flat at a price of Rs.1,350/- per sq. ft. and paid Rs. 1,10,034/- (10% of total consideration) as earnest money on 05.01.2006, which the appellant builder acknowledged. It is further alleged that despite continuous follow-ups, the appellant builder did not issue an allotment letter to the complainant. On 04.10.2010, the appellant builder informed the complainant that some flat purchasers/employees had approached the Hon'ble High Court in its Writ Jurisdiction. In the same letter, the appellant builder mentioned for the first time that a flat admeasuring 824 sq. ft. would be allotted to the complainant and asked for payment of Rs.20,46,605/- by 12.10.2010, without providing specific details of the flat. After the complainant pointed out this error, the appellant builder issued another letter on 11.11.2010 informing that a draw was conducted on 29.10.2010 and the complainant was allotted Flat no. B-5/3 in the Nerul Housing Complex, Plot No. 24, Sector 27, Seawood, Nerul, Navi Mumbai. It is further alleged that the complainant approached the appellant builder multiple times for an NOC, which was finally issued on 03.12.2010 and received by the complainant on 05.12.2010 or 06.12.2010. On 15.12.2010, the complainant submitted three demand drafts totalling Rs. 9,98,448/- to the appellant builder, which were accepted but not encashed. The complainant showed willingness to pay the remaining consideration. In June 2014, the appellant builder asked the complainant to pay Rs. 21,68,837/-. When the complainant attempted to make the payment, the appellant allegedly threatened to stop the complainant's P.F. interest unless the letter was returned. On 13.01.2015, Respondent No. 2 informed the appellant builder that out of 25 pending cases, 11 members, including the complainant, were eligible for inclusion in the scheme. Despite the complainant's willingness to pay the balance and the NOC issued by CIDCO, the appellant builder and respondent No. 2 failed to perform their obligations. The complainant, who is now 68 years old and waiting for the flat for the last several years, entered and began residing in the said flat, which was lying vacant. On 29.10.2015, the complainant issued a legal notice to the appellant builder to execute the agreement for the said flat. The appellant builder replied but did not execute the agreement.
Being aggrieved, the complainant filed a complaint before the State Commission with the following prayer:
a. this Hon'ble Forum be pleased to hold that the Opposite parties are guilty of deficiency in service and unfair trade practices as contemplated under Consumer Protection Act.
b. this Hon'ble forum be pleased to direct the Opposite party No.1 to accept the balance consideration of Rs.21,68,837/- together with the Registration and Stamp duty as per law and further execute and get the agreement registered in favor of the complainant in respect of the flat bearing No. B-5/3, Plot 24, Sector 27, Seawood, Nerul, Navi Mumbai with in a time bound period.
c. Pending the hearing and final disposal of the above complaint complainant be permitted to deposit the entire balance consideration with this Hon’ble Commission and on deposit the entire consideration restrain the Opposite Party from any third party interest in respect of the flat in question in any manner whatsoever in nature and further restrain from disturbing the possession of the complainant.
Interim, add-interim in terms of prayer clause (c)."
d. Opposite parties be further directed to pay compensation of Rs.5,00,000/- towards the mental agony and stress caused to the complainant.
e. this Hon'ble Forum be pleased to direct the opposite parties to pay Costs of Rs.1,00,000/-.
f. any other order as this Hon'ble forum thinks fit and proper.
The appellant builder had not filed any reply/written version to the complaint before the State Commission.
The State Commission, vide its order dated 05.02.2019, allowed the complaint in part with cost of Rs. 25,000/- against the appellant builder and directed the appellant builder to execute agreement and register it in favour of the complainant in respect of flat No. B-5/3 in the Nerul Housing Complx, Plot No. 24, Sector 27, Seawood, Nerul, Nevi Mumbai on depositing an amount of Rs. 21,68,837/- (Rupees Twenty One Lakhs Sixty Eight Thousand Eight Hundred Thirty Seven only) with interest @9% per annum from 01.01.2016 till date of payment and necessary charges for stamp duty and registration with the State Commission under intimation to the appellant builder and on such deposit, within one month, the appellant builder should execute and register the agreement in favour of the complainant. The State Commission also awarded Rs. 1,00,000/- to the complainant as compensation on account of mental agony and hardship suffered by the complainant.
The appellant builder has filed the present appeal before this Commission seeking setting aside of the order dated 05.02.2019 of the State Commission.
Before us, the counsel for the appellant builder argued that dispute between employer and employees are outside the purview of the Consumer Protection Act, 1986 in as much as the complainant claimed possession of flat constructed by the appellant builder exclusively for its employees and as an additional incentive to employees revised the cost of the flat and the State Commission fell into grave error by construing it as a "service" within the meaning of Section 2(o) of the Act. In support of this contention, he placed reliance on the on the judgment rendered by the Hon'ble Supreme Court in Dr. Jagmittar Sain Bhagat Vs. Director, Health Services AIR 2013 3060 SC, wherein it was held that a dispute regarding service conditions cannot be raised before any of the Forums under the Consumer Protection Act, 1986. He further argued that the complaint filed by the complainant was barred by law of limitation as it was filed after a period of 5 years from the date on which the cause of action arose. As per Section 24A of the Act, the State Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
He further contended that the complainant failed to make the payment within the specified time and after the lapse of prescribed period of limitation i.e. on 08.12.2010, the complainant submitted three Demand Drafts on 15.12.2010 for a total sum of Rs. 9,98,454/-, which was not even 50% of the total amount of the flat and this lapse on the part of the complainants led to automatic cancellation of the allotment of the flat. The appellant builder through a letter dated 17.01.2011 cancelled the allotment of the flat in question. It was further argued that the State Commission erred in holding that on receiving 20% of the amount, the appellant builder should have executed an agreement in favour of the complainant when the orders passed by the Hon'ble Bombay High Court specifically stating that the total cost of flat along with the additional charges would have to be paid within four weeks from the date of allotment.
Further, it was argued that the State Commission failed to appreciate the fact that on 11.06.2015, the complainant, by breaking the seal of the flat forcefully and illegally entered the flat in question and took unauthorized possession of the said flat and the appellant builder has filed a police complaint vide letter dated 12.06.2015, 10.12.2015, 26.02.2016 and 13.05.2016 regarding such unauthorised possession. He further argued that there was no deficiency of service on its part. On the contrary, it was complainant who failed to adhere to the stipulations and timelines contained in the Letter of Allotment dated 04.10.2010, letter dated 11.11.2010 and the Order dated 11.10.2010 passed by the Hon'ble Bombay High Court in W.P. No. 336 of 2010.
The counsel for the complainant argued that the State Commission correctly held that there was deficiency in service on the part of the appellant builder in not executing the agreement in favour of the complainant. He further argued that the appellant builder refused to accept the payment towards the allotment which demonstrated a breach of its contractual obligations and the same amounted to unjust denial of the complainant’s right to possess the allotted flat. He further argued that the appellant builder’s delay in issuing a No Objection Certificate (NOC) severely hampered the complainant ability to fulfil his financial obligations within the stipulated timeframe and the appellant builder’s actions directly contributed to the complainant’s inability to obtain the necessary loan, ultimately resulting in non-payment within the designated period.
Further, it was argued that on 13.01.2015, there was a letter from the CIDCO to the appellant builder mentioning that out of 25 pending cases, 11 members were eligible for inclusion in the scheme, and complainant was one of them. The complainant and other purchasers by letter dated 11.03.2015, placed on record the facts regarding the NOC issued by CIDCO and further showed their willingness to pay the balance payment. Despite that, the appellant builder did not execute an agreement.
We have considered the rival contentions and perused the materials available on record. The question which falls for our consideration is whether there is deficiency in service on the part of the appellant builder.
It is seen from the facts and upon perusal of evidences on record that the appellant builder, through a letter dated 17.01.2011 cancelled the allotment of the flat in question as the balance amount of the flat was unpaid, which has been admitted by the complainant. The complainant is relying on a letter dated 17.06.2014 from the appellant certifying that the complainant has been allotted a flat and specifying some balance payment. However, the appellant builder categorically denies even issuing such letter and points out that it is not even on the official letter head of the Air India. CIDCO issued a letter on 13.01.2015 to the President, M/s Airline Welfare Association mentioning that 11 members including the complainant were eligible for possession of the flat. Relying on the said letter, the complainant admittedly broke the seal of the flat and took possession in an unauthorized and illegal manner in 2015. The appellant builder has lodged police complaints vide letters dated 12.06.2015, 10.12.2015, 26.02.2016 and 13.05.2016. It is seen that after the letter of cancellation dated 17.01.2011, there is no letter addressed by the appellant builder to the complainant. The appellant builder was the owner of the flat and any communication given by CIDCO to the complainant cannot confer any right of occupation on the complainant. The allotment of the flat was cancelled way back in 2011 and the complainant took unauthorized possession of flat in 2015.
Showing willingness to pay the balance amount after unauthorized possession and thus making the possession valid is not something which can be adjudicated upon by the Consumer Commission. The present case involves highly disputed questions of facts and issues of unauthorized possession, police complainants and alleged fabrication of documents. Such complex issues cannot be adjudicated in a summary proceeding in the Consumer Commission.
In view of the above discussion, we are of the opinion that matter as such is of complicated nature, which needs deeper probe, investigation requiring parties to adduce elaborate evidence and cross examination of each other witnesses. The parties are at liberty to avail their remedy before the Civil Court in accordance with law.
. In view of the above, the appeal is disposed of and the order dated 05.02.2019 of the State Commission is set aside. The complaint is dismissed. The appellant is at liberty to avail their remedy before the Civil Court, in accordance with law. Pending applications, if any, stand disposed of.