HIRA CONSTRUCTION vs ASHOK BALKRISHNA JAITPAL

THIS appeal filed by the original O.P. Nos. 1 to 4 in Consumer Complaint No. 62/2004 is directed against the order dated 17.10.2005 passed by the District Consumer Forum, Alibag (Raigad).

WE heard Mr. U.B. Wavikar, Advocate for the appellants and Mr. M.S. Kumthekar, Advocate for the respondent. Respondent (org. complainant) purchased residential flat from the appellants/org. O.Ps. Entire consideration was paid to the builders. The flat purchaser received possession of flat on 25.6.1996. As per the terms of the agreement, the flat purchaser purchased flat admeasuring 295 sq. ft. built up area. After occupation of the flat, flat purchaser found that the flat, which was purchased by him admeasures only 253 sq. ft. He made serious grievance about less area to the extent of 42 sq. ft. Therefore, he filed consumer complaint against the builders on 8.7.2004.

Builders filed written statement and resisted the complaint. Builders have denied to have delivered the flat of less area. It is contended by the builders that the consumer complaint was hopelessly time barred. It is also contended in the written statement that there was no deficiency on their part. Specific contention was raised in the written statement that the complaint filed by the flat purchaser is false and frivolous and, therefore, exemplary cost be awarded to them under Section 26 of Consumer Protection Act, 1986.

FORUM below concluded on the basis of material placed on record that the complaint filed by the flat purchaser was hopelessly time barred. FORUM below also recorded a finding that the built up area of the flat is to the extent of 301.49 sq. ft. FORUM below has specifically recorded a finding on the basis of report submitted by an Architect Mr. Vishwanath Vartak that the flat purchaser has received excess area to the extent of 6.49 sq. ft. FORUM below dismissed the complaint filed by the flat purchaser without awarding any cost to the builders as contemplated under Section 26 of Consumer Protection Act, 1986. Feeling aggrieved by the non-payment of cost, original O.Ps. have preferred this appeal. It is tried to be argued on behalf of flat purchaser that the appeal filed by the builders is not maintainable. We do not agree with the learned Advocate Mr. Kumthekar. The flat purchaser received possession of the flat on 25.6.1996. The flat purchaser however filed consumer complaint on 7.8.2004. Flat purchaser filed consumer complaint against the builders after 8 years. The complainant did not explain the inordinate delay of 8 years. The complaint was without any merits. The Forum below appointed Architect Mr. Vishwanath Vartak as Court Commissioner. Court Commissioner visited the site and took measurements of the flat in presence of flat purchaser. Commissioner submitted his report. Commissioner in his report has specifically mentioned that built up area of the flat is more than built up area mentioned in the agreement. It is specifically mentioned in the Commissioner''s report that the grievance of the complainant with regard to less area of the flat is wrong. The builders have specifically contended in the written statement that the complaint was false and frivolous and, therefore, cost should be awarded to them under Section 26 of Consumer Protection Act, 1986. This important aspect has not at all been considered by the Forum below. Forum below dismissed the complaint and directed the builders to bear their own cost. O.Ps. were entitled to the cost. Therefore, O.Ps. are certainly aggrieved persons. The appeal filed by the O.Ps. is, therefore, perfectly maintainable in law.

IT is clearly seen from the material placed on record that the complaint filed by the flat purchaser is mala fide, vexatious and frivolous. Flat purchaser after having grabbed excess area, filed false complaint against the builders and compelled them to incur expenses for contesting the complaint. Issue involved in the complaint was factual issue and not a legal issue. There was no grain of truth in the complaint filed by the flat purchaser. Complainant was not required to pay any Court-fee when he filed complaint in 2004. The Central Government, New Delhi has amended its Rules being Consumer Protection Rules, 1987, fixing the filing fees payable in consumer disputes to be filed before Consumer Fora w.e.f. 10.2.2005. The complainant is found to have misused the provisions of Consumer Protection Act, 1986 and dragged the builders to the Forum. This tendency, therefore, must be discouraged. Section 26 is brought on the statute book in 1993 by amendment in the Act. There is clear mandate in Section 26 of Consumer Protection Act, 1986 that in case of frivolous or vexatious complaint, complaint is liable to be dismissed and the Forum shall make an order that the complainant shall pay to the O.P. such cost and exceeding Rs. 10,000. Forum below recorded a clear-cut finding that the complaint was hopelessly time barred. Forum below also recorded a finding that the built up area of the flat is in fact in excess than the built up area mentioned in the Agreement of sale. Forum below rightly, therefore, concluded that there was no deficiency on the part of the builders. Forum below however failed to impose cost on the complainant when complaint is found false and frivolous. Frivolous means not having any serious purpose or value. False means not in accordance with truth or facts. In the case in hand, the material placed on record would clearly point out that the allegations made in the complaint are not true. On the contrary, the complaint was false and frivolous. Under the circumstances, Forum below should have awarded cost to the O.P. under Section 26 of Consumer Protection Act, 1986. In the result, we pass following order: ORDER 1. Appeal is allowed with cost of Rs. 1,000. 2. Respondent/org. complainant is hereby directed to pay cost of Rs. 10,000 to the appellants/org. O.Ps. under Section 26 of Consumer Protection Act, 1986. 3. Respondent/org. complainant is directed to comply the order within a period of 30 days from the date of receipt of the order. 4. Copies of the order herein be furnished to the parties.

Appeal allowed.