Gul K. Achhra vs Jaswant Kumar Bhatia

V. K. Jain, J

The complainant, in consumer complaint No. 336 of 2012 filed before the State Commission, was allotted a residential flat bearing No. 101 in a project which Mr. Jaswant Kumar Bhatia, the appellant in F.A. No. 45 of 2017 was to develop in Sector 7 of Kopar-Khairane for a total consideration of Rs.12,56,000/-. The complainant made the payment of Rs.7,70,000/- to the builder on 12.07.1995. However, the said construction of the said flat was not completed and the possession was not delivered to the complainant, who approached the concerned State Commission by way of a consumer complaint.

The complainant, in consumer complaint No. 337 of 2012 filed before the State Commission, was also allotted a flat bearing No. 102 in the same project for a total consideration of Rs.13,16,000/-. He paid a sum of Rs.10 lakh to the builder. The possession of the house, however, was not delivered to him nor the construction was complete.

Therefore, he also approached the concerned State Commission by way of a consumer complaint.

The complaints were resisted by the builder primarily on the ground that due to acute recession in the market, there was a reduction in demand. It was also alleged that the complainants had taken loan from GIC Housing Finance Ltd., which they were unable to pay and as a result, recovery proceedings against them were initiated by GIC Housing Finance Ltd. It was also alleged that the properties of the builder were attached by Income Tax Department and that included the property on which the project in question was to. It was also alleged that though the builder was ready to refund the amount paid by the complainants alongwith reasonable interest but they were not ready to accept the same.

The State Commission vide order dated 06.07.2017 directed as under:

"Execution applicant - Gul K. Achhra is present in person along with Advocate Shri Mohit Bhansali. Advocate Shri Sachin Gangau is present for the opposite party. These are execution proceedings u/s 27 of the Consumer Protection Act, 1986 for offence punishable with imprisonment upto 3 yrs and / or fine upto Rs.10,000/- or both. On last occasion on 16/6/2017 we had shown leniency by cancellation of bailable warrant of arrest conditionally upon executing PR Bond in the sum of Rs.15,000/- with one surety and direction that accused shall remain present on each and every date of execution proceedings. There is breach of bail bond as well as surety bond today by the accused by remaining absent from the State Commission. Instead an application is moved for exemption on the ground that since 4/7/2017 accused is suffering from fever sought to be supported by photo stat copy of certificate by one Dr. Hemang Nanawati. This application as well as certificate annexed is challenged by execution applicants on the ground that they are false and accused is in the habit of filing false affidavit with prayer that accused is intentionally avoiding to remain present before the Commission. Therefore, this application be rejected and strict action be taken against him. We therefore, forfeit the surety bond as well as PR Bond directing that the sum of Rs.15,000/- for PR Bond and sum of Rs.15,000/- by surety as surety bond, shall stand forfeited since the accused remained absent without any valid and good excuse according to the complainant. We issue Non Bailable Warrant of Arrest to compel attendance of the accused before the State Commission for further proceedings in execution to enforce the final order which was passed long back on 17.10.2016 with direction to the accused to execute registered agreement and to deliver vacant and peaceful possession of the flats in dispute as ordered in consumer complaint Nos. 336 and 337 of 2012 by the State Commission. Non Bailable warrant of Arrest shall be executed with assistance of complainant through Sr. P.I. of nearest police station where accused is residing r/on 22/8/2017. Hamdast. Parties to inform decision pending appeal before Hon'ble National Commission in absence of any interim stay order by the National Commission. Stand over to 22/8/2017.

Being aggrieved from the order passed by the State Commission, both, the complainants as well as the builder are before this Commission by way of filing these separate appeals.

None of the grounds taken by the builder to contest the complaints is justified. The complainants cannot be penalised for the financial difficulties of the builder nor can they be made to suffer due to attachment of the properties of the builder by Income Tax Department. The builder has only himself to blame for his alleged financial distress.

It is transpired during the course of hearing that the builder, Mr. Jaswant Kumar Bhatia is not in a position to complete the project and deliver the possession of the allotted flats to the complainants. According to him, he has already sold off the project to a third party, therefore, it is not feasible to deliver the possession of the allotted flats to the complainants. Though the complainants want an alternative residential flat, that may not be a practical solution to the problem since the disputes are bound to happen with respect to the location and specifications etc. of the alternative flats for providing the same to the complainants even if alternative flats are offered. The most appropriate course of action in such circumstances would be to suitably compensate the complainants on the basis of current market value of these flats calculated on the basis of rates notified in the Ready Reckoner issued by the Government of Maharashtra in respect of the locality in which the flats allotted to the complainants were to be located.

Since the Ready Reckoner is not readily available with the parties, the appeals are disposed of with the following directions:

(i) The builder, Mr. Jaswant Kumar Bhatia shall refund the amount equivalent to the current Ready Reckoner value of the flats, which he had allotted to the complainants. The amount already deposited by the builder with this Commission alongwith interest, which may have accrued on that amount, shall be adjusted out of the value so determined and shall be released by this Commission to the complainants. The balance amount shall be paid by the builder to the complainants within eight weeks of the determination of the Ready Reckoner value of the flats.

(ii) The parties shall appear before the State Commission on 24.04.2019 for the purpose of determination of the value of the allotted flat, as on today, on the basis of Ready Reckoner issued by the Government of Maharashtra in respect of the area in which the flats allotted to the complainants were to be located.

(iii) In case the builder fails to make payment in terms of this order, the said amount shall carry interest @10% per annum from the date of this order.