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Judgment
V.K. Jain, J
The complainants / appellants owned four sites of land, which they sold to the respondent for a consideration of Rupees three crores. The respondents thereafter, agreed to sell two apartments, which they had to construct on the said land to the complainants / appellants. The sale consideration for one apartment was agreed at Rs.52,52,203/-, whereas the sale consideration for the second apartment was agreed at Rs.56,52,265/-. Since the possession of the apartments was not delivered to the complainants / appellants nor the sale deed in their favour was executed, despite receiving the requisite sale consideration, they approached the concerned State Commission by way of two separate consumer complaints, seeking possession of the allotted apartments, execution of the sale deed in their favour and compensation for the delay in delivery of possession.
The complaints were resisted by the respondents, which took a preliminary objection that the State Commission did not have jurisdiction to entertain the complaints as the complainants were seeking specific performance of the agreements executed with the respondents. On merits, the respondents alleged fraud on the part of the complainants / appellants in the sale of the land sites to them but they did not dispute the allotment of the residential flats to them or the sale consideration received from the complainants / appellants.
The State Commission vide impugned order dated 16.3.2018, dismissed the consumer complaints, without going into the merits, holding that there was a serious civil dispute in respect of the matter in issue. It was observed that there was issue regarding re-categorization of flat, loss of plinth area and identity of property, which was beyond the purview of the Consumer Protection Act.
In my view, the State Commission was not justified in dismissing the consumer complaints, without examining them on merits. On a perusal of the written version to the consumer complaints, I find no such issue, which could not have been examined and adjudicated by the State Commission. As noted earlier, the allotment of residential flats, which the respondent was to construct on the sites purchased from the complainants / appellants, was not disputed. Even otherwise, the complainants have placed on record the allotment letters issued to them by the opposite party, evidencing the allotment of residential flats as well as the receipt of substantial payment from them.
The learned counsel for the OP submits that the apartments were constructed on a land different from the land purchased from the complainants. Even if that be so, and there was some misrepresentation in respect of the land, which the complainants had sold to the OP, that would be an altogether different issue and will not come in the way of the relief being sought by the complainants / appellants, they having paid the sale consideration for the flats allotted to them. The respondent can have such remedy as may be open to them in law against the complainants / appellants for the alleged misrepresentation with respect to the four land sites sold to them but having received the sale consideration for the apartments, they cannot deny possession of the said apartments to the complainants.
If a builder entering into a transaction for selling residential flat which he is yet to construct at the time of entering into the transaction fails to complete the construction and / or deliver possession of the apartment, that would constitute deficiency in the services rendered by him to the flat-buyer and a Consumer Forum in exercise of the powers conferred upon it by Section 14 of the Consumer Protection Act would be entitled to direct the removal of the said deficiency by delivery of possession of the apartment after completing its construction, besides awarding interest for the period the possession of the apartment is delayed. Therefore, it cannot be said that the grievance of the complainant did not fall within the domain of the State Commission.
For the reasons stated hereinabove, the impugned order is set aside and the complaints are remitted back to the concerned State Commission for deciding the same on merits.
It is informed that the appellant No.1 and 3 are more than 85 years old. The State Commission is therefore directed to expedite the hearing and disposal of the complaints and dispose them of within three months of the parties appearing before it.
The parties shall appear before the concerned State Commission on 07.5.2019.