Mohini Nishikant Pathak vs Parmeshwari Schemes & 2 Ors.

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 12.02.2013, passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in First Appeal No. RBT/12/886 in FA No. A/10/293, "Mohini Nishikant Pathak versus Parmeshwari Schemes & Ors.", vide which, while dismissing the appeal, the order dated 21.01.2010, passed by the District Forum Pune, in consumer complaint No. PDF/293/2008, filed by the present petitioner, allowing the said complaint, was upheld.

Briefly stated, the facts of the case are that as per registered agreement dated 07.10.2006 between the parties, the petitioner/complainant Mohini Nishikant Pathak agreed to purchase flat No. 501, admeasuring about 104.70 sq. mtr. alongwith terrace and parking area, constructed by the respondents/Opposite parties (OPs) Builders for a total consideration of Rs. 15,38,813/-. The complainant made a total payment of Rs. 4.50 lakh to the Builder from time to time. The possession of the flat was agreed to be given by 30.11.2006. However, on the failure of the Builders/OPs to deliver the possession by the said date, the consumer complaint in question, was filed by the petitioner, seeking directions to the OP builders to complete the construction of the flat in all respects as per the approved building plan by the Pune Municipal Corporation and to hand over the possession of the property to her, after receiving the full and final payment for the same. It was also demanded in the consumer complaint that the OPs should be directed to pay a sum of Rs. 1,10,000/- to the complainant towards the rent already paid by her for temporary accommodation and further to pay Rs. 5,000/- per month as rent. A compensation of Rs. 10 lakh for deficiency in service/unfair trade practice was also demanded through the consumer complaint.

The OP Builders did not put in appearance before both the consumer fora below and hence, the orders were passed in their absence.

The main issue involved in the consumer complaint was that part payment of Rs. 4.50 lakh had already been made to the OP Builders. For payment of rest of the amount, the complainant wanted to raise a housing loan from the Saraswat Cooperative Bank Limited, Pune. The Bank had sanctioned a loan of Rs. 15 lakh to the complainant, but the OPs failed to provide the necessary documents to the complainant for submitting the same before the Bank and hence, the loan could not be disbursed.

The District Forum partly allowed the consumer complaint and gave the following directions:-

"2. The opponent No. 1 and its partners are directed to furnish all the relevant documents as demanded by the bank to complainant within a period of 15 days from the date of receipt of this order by the opponents.

Thereafter, within 30 days the complainant is directed to approach the financer bank and borrow the loan by making necessary compliances to that effect and should see that the said amount is disbursed in favour of the opponent no. 1 within a period of 30 days from the date of sanction of the loan.

In the event, the complainant fails to obtain the loan from the concerned financial institution or to make payment of the entire dues of an amount of Rs.10,38,813/- together with interest as mentioned in the agreement dated 07/10/2006, this conditional order shall automatically be vacated and the complainant shall only be entitled to recover an amount of Rs. 4,50,000/- together with the interest at the same rate as mentioned in the agreement from the opponent No. 1. The complainant in that case shall stand disposed of with no order as to the costs.

On receipt of entire consideration as per the agreement dtd. 7/10/2006 within the stipulated period as mentioned in the aforesaid paragraph no. 2 of the operative part, the opponent is directed to handover vacant and peaceful possession of the flat of complainant within 15 days thereof duly completed in all respects."

Being not satisfied with the said order of the District Forum, the complainant challenged the same by way of an appeal before the State Commission. However, the said appeal having been dismissed vide impugned order, the complainant is before this Commission by way of the present revision petition, seeking award of compensation/cost to the petitioner/complainant, in addition to the relief allowed already.

During hearing before us, it was submitted by the learned counsel for the petitioner that the balance amount for the flat could not be paid by the complainant to the OP Builders on account of the fact that they failed to provide the requisite documents to the complainant that were needed for raising loan from the Bank. The learned counsel further stated that the OPs deliberately absented themselves in proceedings before the District Forum as well as the State Commission.

On behalf of the respondents, a partner of the OP Builders Shashank Padmakar Wad, appeared and sated that the flat in question, had been ready for delivery of possession since 2007. The said partner admitted, however, that they could not obtain the completion certificate in respect of the said flat from the competent authority.

We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

There is a delay of 22 days in filing the revision petition, but the said delay was condoned vide order dated 29.08.2014 already passed by this Commission.

Vide order dated 21.01.2010 passed by the District Forum Pune, a direction was given to the OPs to furnish all relevant documents as demanded by the Bank to the complainant within 15 days. The complainant was directed to approach the Bank and borrow the loan within a period of 30 days from the date of the order. It was further directed that if the complainant fails to obtain the loan or to deposit the entire balance amount of Rs. 10,38,813/- to the OPs, she shall be entitled to recover the amount of Rs. 4.5 lakh deposited by her together with interest at the same rate, as mentioned in the agreement with the OPs. It was also stated that in case, the payment is made by the complainant, the OP shall deliver the possession of the property within 15 days, duly completed in all respects. The said order has not been challenged by the OPs and hence, the same has become final qua them. The complainant approached the State Commission, seeking compensation also from the OPs for their failure to deliver the property in time. However, the State Commission dismissed the said appeal and observed that the OPs had already issued the NOC etc. to mortgage the flat, or to create a charge on it. The complainant has further challenged the said order by way of the present revision petition. In view of the observations made by the State Commission in the impugned order, we find that there is no material defect or jurisdictional error in the said order, which may call for any interference in the exercise of the revisional jurisdiction. As held by the Hon'ble Supreme Court in "Rubi Chandra Dutta vs United India Insurance Co. Ltd. [(2011) 11 SCC 269]", the scope of exercising the revisional jurisdiction is limited. We, therefore, do not find any infirmity, irregularity or illegality in the orders passed by the Consumer Fora below and the same are upheld. It is made clear, however, that in terms of the orders of the Consumer Fora below, the possession shall be delivered by the OPs to the complainant after completing all the formalities, including obtaining the completion certificate from the competent authority. There shall be no order as to costs.