Colonel P.K. Sharma vs Sanjay Ambadas Joshi

All these revision petitions arise out of single order of State commission hence decided by common order. Revision petition No. 3592 of 2013 has been filed by complainant and revision petition Nos. 3656-3657 of 2013 have been filed by opposite party against order dated 8.7.2013 passed by State Commission in First Appeal No. 364 of 2007, Sanjay Ambadass joshi v. Col. P.K. Sharma and First Appeal No. 32 of 2004, Col. P.K. Sharma v. Sunjay Ambadas Joshi, by which both appeals were partly allowed.

Brief facts of the case are that the opposite party developer Shri Sanjay Joshi had floated a residential Farm House Scheme namely "Krishna Devrai Farm" consisting of 67 houses in G. No. 79 of village Sharanapur Tq. & Dist. Aurangabad covering the area of 6.94 H. abutting on Aurangabad-Nashik-Mumbai highway road at about 11 k.ms. away from Aurangabad city. The opposite party/developer had given publicity to the said scheme by way of brochure in which had assured to provide the facilities such as wide roads with Sodium Vapor Lamps, individual telephones, club houses, swimming pool, tennis court, restaurant, gymnasium, health club, department store, dispensary, and many more as specified therein. The complainant is an ex-army Colonel and was posted in Cantonment in Aurangabad in June, 2001. He was to retire from service in the month of Sept., 2002 and therefore had planned to settle at Aurangabad. The developer had come into his contact and by giving information about the said scheme had given him offer to purchase the farm house. Accordingly, the complainant accepted the offer and booked the farm house with plot bearing No. 6 admeasuring area of 7,457 sq. feet including built up area of 1,100 sq. feet for consideration of Rs. 8 lakh on the condition that he should be given possession of the said house before Diwali 2002:

Accordingly the complainant paid to the opposite party/developer Rs. 8 lakh towards the cost of the house and Rs. 3.85 lakh towards excess work as per demand. Thus, he paid total amount of Rs. 11.85 lakh in five instalments up to December, 2002 but the opposite party/developer failed to give the possession up to October, 2002 as orally agreed by him. The agreement to sale was executed on 29.1.2003 after heavy persuasion. The sale deed was executed on 1.10.2003 and possession of the said house was given or, the same date of sale deed i.e. after the delay of 10 months.

After having received the possession, the complainant raised various grievances against the developer such as charging excess amount of Rs. 3.85 lakh towards cost of the house etc. and non-existence of facilities as assured in brochure and agreement of sale. There was no safe drinking water facility, no electric supply although Rs. 20,000 was paid for the same. No road with Sodium Vapur lamp, no septic tank, no wide road, no security wall and so on. The quality of the construction was also poor as with in three months of possession there were various cracks in the walls and leakages in the roof. The complainant had also issued legal notice dated 22.10.2003 to the developer to comply with the above said lacunas and deficiencies, but there was no response from the developer. Alleging deficiency on the part of opposite party complainant filed complaint before District Forum and claimed refund of excess amount along with interest and other expenses incurred by him.

Opposite party resisted complaint and submitted that as per the "Agreement to Sale" the possession was to be given within ten months from the date of execution of the sale of agreement i.e. 29.1.2003. Therefore possession was supposed to be given on or before 29.11.2003 but the actual possession was given on 1.10.2003 i.e. about 2 months in advance. Hence, the complainant''s claim for rent was baseless. It was further submitted that the actual cost of the said house was fixed at Rs. 11.85 lakh and not Rs. 8 lakh. That just to avoid paying the stamp duty and other charges, the complainant had insisted to show the cost of Rs. 8 lakh only. Hence, he contended that the complainant was not entitled to receive Rs. 3.85 lakh. He further submitted that the amount of Rs. 1,59,800 was paid to him towards extra work done on the request of the complainant and hence he was not entitled to get the refund of Rs. 50,000.

The opposite party/developer further submitted that the amenities i.e. safe drinking water, electric supply, playground, space for greenery were provided on site. However, the work of other amenities such as septic tank, roads, security wall and street light were in progress. As regards other public amenities they were not viable to be provided as there were only four families who had occupied their houses. That, as far as the quality of construction is concerned; the complainant had made false and distorted allegations. He had also contended that no electric charges of Rs. 20,000 were paid by the complainant. He further submitted that as the safe drinking water supply was made available to the complainant he was not entitled to get the amount of Rs. 47,066 as the claim towards digging expenses of bore well. He also submitted that as the water testing report was issued by the Government authority there was no need for the complainant to get the water tested on his own. As per the water testing report the water was clean and potable. He therefore denied the claim of Rs. 670 also as made by the complainant. The claim of complainant of Rs. 3,202 for the repairs of electronic appliances has also been denied on the ground that required electric supply was made available to the complainant and hence he was not responsible for any alleged damages to the electric appliances. Denying any deficiency on his part prayed for dismissal of complaint.

Learned District Forum vide order dated 27.7.2005 allowed complaint partly, against which both parties filed appeals before State Commission and learned State Commission allowed both appeals and remanded back to learned District Forum. Learned District Forum allowed complaint partly and directed opposite party to pay Rs. 3.85 lakh with 9% p.a, interest and repair cracks on the wall as per report of Commissioner and opposite party was further directed to pay Rs. 20,000 for mental harassment and Rs. 2,000 as cost, Both parties filed appeals before State Commission and learned State Commission vide impugned order allowed both appeals partly and directed opposite party to pay Rs. 85,000 towards rent and interest @ 5% p.a. on Rs. 11.85 lakh on account of delay in delivery of possession, Rs. 47,066 with 6% p.a. interest towards expenses incurred in digging bore well and compensation of Rs. 75,000 towards mental and physical harassment and Rs. 5,000 towards cost of litigation, against which these revision petitions have been filed along with application for condonation of delay in filing revision petition by opposite party.

As there is delay of only four days in filing revision petition Nos. 3656-3657 of 2013, delay stands condoned for the reasons mentioned in the application.

Heard complainant in person and Counsel for the opposite party and perused record.

Learned complainant submitted that learned District Forum committed error in allowing complaint partly and learned State Commission further committed error in reducing claim, hence revision petition be allowed and impugned order be set aside and prayers made in the complaint be allowed. On the other hand, learned Counsel for the opposite party submitted that learned State Commission committed error in allowing appeal partly whereas appeal should have been allowed in to, hence revision petitions be allowed and impugned order be modified and complaint be set aside.

Complainant in the complaint claimed Rs. 3.85 lakh as excess amount charged by opposite patty from him. It was further pleaded that cost of the house was Rs. 8 lakh but complainant paid Rs. 11.85 lakh, hence Rs. 3.85 lakh may be refunded to him. Learned District Forum allowed claim of Rs. 3.85 lakh but learned State Commission set aside aforesaid direction. It is not disputed that complainant paid Rs. 11.85 lakh to opposite party and it is also not disputed that sale deed executed between the parties depicts sale consideration of Rs. 8 lakh but Para 6 of the complaint makes it crystal clear that complainant paid Rs. 8 lakh as cost of the house and Rs. 3.85 lakh for excess work as per demand. Meaning thereby complainant paid Rs. 3.85 lakh for extra work done by opposite party at he request of complainant and in such circumstances complainant is not entitled to refund of Rs. 3.85 lakh and learned State Commission has not committed any error in modifying order of District Forum to this extent.

Complainant in complainant claimed 5% p.a. interest on Rs. 11.85 lakh for 10 months but District Forum did not allow this claim but State Commission allowed interest @ 5% p.a. on Rs. 11.85 lakh from 1.1.2003 to 1.10.2003 on account of delay in giving possession of the house. Learned Counsel for opposite party submitted that there was no delay in handing over possession of the house. He has drawn my attention towards agreement to sale dated 29.1.2003 in which it was mentioned that opposite party was to hand over possession within 10 months from the execution of the agreement meaning thereby possession was to be handed over by 29.11.2003 whereas sale deed between the parties was executed on 15.10.2003 and possession was handed over to the complainant on that day and in such circumstances, by no stretch of imagination it can be presumed that there was delay in handing over possession of property. Merely because complainant made major payment before execution of agreement, it cannot be presumed that complainant was compelled to execute agreement dated 29.1.2003 containing clause of handing over possession within 10 months from date of execution of the agreement. Thus, it becomes clear that opposite party handed over possession of house before the stipulated period and learned State Commission committed error in allowing 5% interest on Rs. 11.85 lakh for a period of 9 months on account of delay in delivery of possession and to this extent revision petition filed by opposite party is to be allowed.

Complainant claimed Rs. 85,000 towards rent during December, 2002 to October, 2003. Learned District Forum did not allow aforesaid prayer but learned State Commission allowed Rs. 85,000 towards rent on account of delay in delivery of possession. Learned Counsel for opposite party has drawn my attention towards affidavit of Mr. Chandra Kant Keshav in which he submitted before District Forum that complainant utilized his premises for 10 months but not paid single Paisa to him. Mr. Chandra Kant also served notice dated 26.6.2004 on complainant for payment of rent. Complainant could not place any document on record to show that he has made payment of Rs. 85,000 to his landlord and without making payment complainant is not entitled to claim Rs. 85,000 towards rent and on this count also order of State Commission allowing refund of Rs. 85,000 is liable to be set aside.

I have already observed that there was no delay in handing over possession of house by opposite party to the complainant and in such circumstances, complainant is not entitled to any amount towards rent paid by him and learned State Commission committed error in allowing Rs. 85,000 and to this extent revision petition filed by opposite party is to be allowed.

Complainant claimed Rs. 47,066 towards expenses in digging bore well. Learned District Forum rejected this prayer but learned State Commission allowed this prayer and directed opposite party to pay a foresaid amount with 6% p.a. interest. Learned Counsel for the opposite party has drawn my attention towards Inspection Report dated 28.7.2004 made by Mr. Shekhar T. Aggarwal, Advocate in pursuance to orders of District. Forum in which it was observed that the motor fixed for boring is also seen, pipes have been fixed in Cl pipes up to the compound wall, pipe does not carry water for this bungalow, meaning thereby there was already boring carried out by opposite for supply of water and pipes had been laid up to compound wall of the complainant''s house. Complainant was required to join his pipe to the pipelines laid by opposite party for supply of water from boring and complainant was not required to dig separate bore for supply of water and if he incurred expenses at his sweet-will, he is not entitled to claim aforesaid amount from opposite party and to this extent, impugned order is liable to set aside.

Complainant claimed Rs. 50,000 for deficiency in rates of extra work, Rs. 670 for water testing bill and Rs. 3,202 for repairs of electrical appliances. Amount of aforesaid items has neither been granted by District Forum nor by State Commission and learned Complainant could not prove by any evidence that opposite party charges excess amount from the complainant to wards extra work. Water testing was carried out by complainant of his boring at his sweet-will, which was not required. He has also not proved any expenses incurred in repair of electrical appliances on account of deficient services on the part of opposite party and in such circumstances, complainant is not entitled to claim aforesaid amount as prayed in the revision petition.

Complainant claimed Rs. 2 lakh towards mental harassment, humiliation, etc. Learned District Forum allowed Rs. 20,000 but learned State Commission enhanced it to Rs. 75,000.1 do not find any deficiency on the part of opposite party as per aforesaid discussion and learned District Forum committed error in allowing compensation of Rs. 20,000 towards mental agony and learned State Commission further committed error in enhancing it to Rs. 75,000 for humiliation as well for carrying out repairs of cracks in the wall. Complainant has not proved any expenditure incurred in alleged cracks in the wall and in such circumstances, complainant is not entitled to claim any compensation towards mental and physical harassment as well for repair of cracks in the wall and to this extent impugned order is liable to set aside.

In the light of aforesaid discussion, complaint is liable to be dismissed and complainant is not entitled to any cost of litigation,

Complainant further submitted that as per brochure requisite facilities have not been provided and he is entitled to compensation. He has placed reliance on judgment of Hon''ble Apex Court in II (2000) CPJ 1 (SC)=IV (2000) SLT 654=(2000) 6 SCC 113, Ghaziabad Development Authority v. Union of India & Anr., in which it was observed that brochure issued by opposite party for public information is an invitation to offer. I agree with the preposition of law laid down by Hon''ble Apex Court but complainant is not benefited on account of not providing certain amenities in accordance with brochure, firstly because complainant has not claimed any damages in his prayer clause of the complaint on this count, and secondly, opposite party in its written statement indirectly submitted that he will be providing facilities shown in the brochure as and when area is occupied by many allottees.

Consequently, Revision Petition No. 3592 of 2013 filed by the complainant is dismissed and revision petition Nos. 3656-3657 of 2013 filed by the opposite party are allowed and impugned order dated 8.7.2013 passed by learned State Commission in First Appeal No. 364 of 2007, Sanjay Ambadas Joshi v. Colonel P.K. Sharma and P.A. No. 376 of 2007, Colonel P.K Sharma v. Sanjay Ambadas Joshi and order of District Forum dated 31.1.2007 passed in complaint case No. 32 of 2004, Colonel P.K. 116 Sharma v. Sanjay Ambadas joshi is set aside and complaint stands dismissed, Parties to bear their costs. Ordered accordingly.