B.C. BHANDARI vs AMARJIT SINGH JOHAR And SONS

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THE present complaint has been filed by the complainant Sh. B.C. Bhandari against M/s. Amarjit Singh Johar & Sons, under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act"). Brief facts of the case are that the complainant agreed to purchase from the O.P. a flat on the first floor of property No. N-57, Greater Kailash -I, New Delhi. The flat consisted of Drawing-cum-Dining Hall with front canopy, one bed room with a bath room and a small balcony, a kitchen and part of terrace on the front side of the property. The entire sale consideration of Rs. 8,50,000/- was paid and Agreement to Sell was executed between the complainant and the O.P. In the Agreement to Sell a reference was made of "Plan attached" under the head "Description of the Flat" showing front side of the terrace sold by the O.P. to the complainant.

The case of the complainant is that the O.P. did not attach the said plan with the Agreement to Sell and subsequently without the consent of the complainant added the word "small part" after the word "terrace on the front side". The Conveyance Deed, in respect of the above property was registered on 8.12.1993 and in that deed also the plan was not attached and when the complainant raised the objection and protested against, it the O.P. threatened to cancel the deal and forfeit the amount. The O.P., however, promised to provide to complainant the plan showing the terrace sold to the complainant. According to the complainant, before the deal O.P. agreed to separate the terrace into two portions with two separate entrances and agreed to give exclusive possession and right of the front portion of the two parts of the terrace to the complainant. The case of the complainant is that the O.P. did not provide the plan marked terrace portion in yellow colour to the complainant. The main grievance of the complainant is that the O.P. did not deliver the agreed portion to the complainant, and had made unauthorised structure on the complainant''s front portion. Besides the above complaint, there were other minor defects in the flat. However, in spite of legal notice the O.P. failed to honour the terms and conditions of the sale deed and to remove the unauthorised structure on the front terrace. Hence, the present complaint has been filed with the request that the O.P. be directed to hand over exclusive possession of the front terrace without any encumbrance and also to provide a copy of the plan duly marked as part of Agreement to Sell. The complainant also claimed reimbursement of the expenses incurred for finishing repair work which have been left incomplete and also compensation of Rs. 2 lacs for causing mental agony and harassment to the complainant. The complainant has filed an affidavit of the complainant along with copy of Agreement to Sell, copy of Conveyance Deed and copy of the various letters written by the complainant to the O.P.

THE O.P. in its reply/written version raised preliminary objections that the dispute is not a consumer dispute, hence beyond the jurisdiction of this Commission. It is stated that the main prayer of the complainant relates to compliance of the terms and conditions of the Agreement to Sell and Sale Deed and hence it is in the realm of breach of contract which do not constitute a consumer dispute under the Consumer Protection Act, so the only remedy open to the complainant is a Civil Suit. It is further stated that the complainant being fully satisfied about the quality of the construction of the flat, addressed a communication to the O.P. dated 14.6.1994, in which has stated that he was fully satisfied about the work in his flat. Moreover, a Memorandum of Understanding was also signed between the owners of the three floors of the building in question and the Builder on 29.6.1994 in which it was agreed that all the notices or objections taken by the flat owners against the builder stands cancelled. O.P. also stated that it was made clear to the complainant that he was only entitled to the portion of terrace marked red in the site plan "Annexure C" and that it was also made clear that he cannot be given exclusive rights to the terrace. O.P. , therefore, stated that the flat was delivered to the complainant after he was satisfied regarding the quality of the construction and after amicable settlement of other disputes. Hence there was no deficiency in service on the part of the O.P. and the complaint should be dismissed. We have heard both the parties and have carefully considered the entire documents/material on record. As regards the first contention of the O.P. that it is not a consumer disputes. It has been held by the Hon''ble Supreme Court in the case Lucknow Development Authority v. M.K. Gupta, reported as III (1993) CPJ 7 (SC) that housing construction is a service although related to immovable property. The Hon''ble National Commission in the case of Gujarat Housing Board v. Akhil Bhartiya Grahak Panchayat, reported as 1996 (2) CLJ 786 (NCDRC) has also held that providing houses is a service. Hence we are of the view that the present dispute, which relates to immovable property, is a consumer disputes within the jurisdiction of this Commission.

THE main grievance of the complainant is regarding the terrace of the front portion of the house. It appears that the building has been sold to three persons and terrace has been divided into three parts for each flat owner. THE complainant, however, claims exclusive possession of the front portion of the terrace. According to the complainant, the O.P. agreed to separate the terrace into two parts with two separate entrances and agreed to give exclusive possession of the front portion to the complainant but subsequently he did not comply with this understanding. THE complainant has further stated that the O.P. has intentionally not supplied the plan of the time of execution of Sale Deed. We are unable to accept this contention of the complainant. If the O.P. failed to provide the complainant the plan showing the front side terrace sold to the complaint, he could have refused to purchase the alleged flat. This fact was in the knowledge of the complainant even at the time of execution of Agreement to Sell. Subsequently, also when the Conveyance Deed was signed the same problem was there and still the complainant executed the Conveyance Deed without any protest. Moreover, no satisfactory explanation has been given by the complainant regarding the letter written by him to the O.P. dated 14.6.1994 in which he has recorded his satisfaction and clearance of misunderstanding. Similarly, the complainant has not denied the MOU executed between the complainant and the O.P. and other owners of the buildings. We cannot believe that the complainant was forced to sign these documents against his will. It is also relevant to note that even in the Agreement to Sell, in the description of the flat, only part of the terrace of front site was mentioned and the same was marked in the drawing. THE allegation of the complainant that certain alterations were made in the initial plan and in the Agreement to Sell cannot be believed. THE complainant has thus failed to prove that the O.P. has encroached upon 1/3 portion of the front portion of the terrace, which belongs to the complainant. Moreover, in view of the letter dated 14.6.1994 of the complainant it is also not proved that the O.P. has left several jobs unfinished and incomplete. We are unable to accept the contention of the complainant that the letter dated 14.6.1994 was signed under duress and coercion or under pressure. In view of the above, the complainant has failed to prove any deficiency in service on the part of the O.P. Hence he is not entitled to any relief, the complaint is, therefore, liable to dismissed and the same is dismissed accordingly. In the circumstances of the case the parties are left to bear their own cost. The present complaint stands disposed of in above terms. Complaint dismissed.