AI Structured Summary
Not yet generated for this judgment
Judgment
V.K.Jain, J
No one is present for the respondents even on the second call. On 03.08.2018, there was appearance only on behalf of respondent no.2 though both the respondents were served. On that date, the counsel appearing on behalf of respondent no.2 sought adjournment and the matter was adjourned to 13.11.2018. On that date also, no one was present for the respondents and the matter was adjourned for today. I have therefore, heard the learned counsel for the petitioners.
The facts giving rise to the filing of these revision petitions are stated in the order of this Commission dated 11.01.2016 passed by this Commission in RP/2584/2015 & RP/2585/2015. The said order, to the extent it is relevant, reads as under:
"The complainants/petitioners entered into an agreement with the respondents/opposite parties for purchase of a house for a total consideration of Rs.16 Lakhs paying a booking amount of Rs.51,000/- followed by further payment so as to complete the payment of the entire agreed sale consideration. The sale deed in favour of the complainants/petitioners was executed on 06.02.2010 and possession was delivered to them. The grievance of the complainants is that on taking possession of the house, they found that it had not been constructed as per the specification given in the brochure issued by the respondents/opposite parties. A numbers of defects were allegedly found in the house and sub-standard material is alleged to have been used. No parking space was provided to the complainant/petitioners. Being aggrieved, they approached the concerned District Forum by way of a complaint seeking the following reliefs:-
(B) The Respondents be directed by the Hon'ble Forum that cracks in the row house be repaired, internal doors to be changed and new doors be installed, tiles of the row house be fitted correctly, and conceal, plumbing and electric fitting be corrected and the complainant be provided with separate parking and the amount of maintenance i.e. Rs.500 per month be refunded with 18% interest from May 2010 till the order, the coloring of the row house of the complainant be completed, the internal roads, street lights, water line, sewage be provided, the Respondent be directed that the completion and occupancy be provided for Row House No.G-22, also provide the open space and garden, the Complainant be provided separate gate and compound wall, the underground tank be repaired, Respondent be directed to complete the water proofing of the Row House of the complainant do maintenance of other things. The Respondent be directed to refund the amount of Rs.30000 towards MSEB charges as well as Rs.40000 towards registry/interest along-with interest, good iron stair case be provided, the expenses for leveling the side margin open space to the tune of Rs.5000 be refunded, the Respondent be directed to provide permanent drainage system and cost of which is Rs.25000 be provided to the Complainant for repairing works in the interest of justice.
(C) Or, the Respondent be directed by the Hon'ble Forum to pay the amount of Rs.5,00,000 to the cure the above mentioned lacunae/deficiency in construction and for that matter orders be passed.
(D) The Respondents be directed to pay an amount of Rs.20000 towards mental agony and amount of Rs.20000 towards physical agony and Rs.10000 towards the economical agony as well as the cost of Rs.10000 be provided towards the cost of litigation.
The complaint was filed against two entities one being M/s. Tapadiya Constructions owner of the land on which the flats were to be constructed and M/s. Kasliwal Constructions, which was to construct the flats on the land of Tapadiya Constructions.
Tapadiya Constructions did not appear before the District Forum and the complaint was opposed only by the builder Kasliwal Constructions. It was not disputed that the opposite parties had agreed to sell the house to the complainants for a consideration of Rs.16 Lakhs and had received the entire sale consideration from them. The execution of the sale deed in their favour was also not disputed. They however denied the alleged defects in the construction and the alleged used of the sub-standard material.
The District Forum vide its order dated 21.09.2013 directed as under:-
The Respondent No.2 is directed to pay an amount of Rs.4,00,000/- (Four Lacs Rs. Only) for lower quality construction and for its repairs within 30 days from the date of receipt of this Judgment.
The Respondent No.2 is directed to remove the obstacle grievance for which the area cannot be utilized for parking is to be provided for parking within 60 days from the date of receipt of this Judgment.
The Respondent No.2 is directed to obtain completion certificate of the Complainant. Till the time Corporation provides for drainage facility in the area or till such time permanent drainage system is installed till such time the expenses of the electric motor installed in the septic tank and related maintenance is to be borne by the Respondents.
The Respondent No.1 jointly and severally pay an amount of Rs.25,000/- (Twenty Five Thousand Rs. Only) to the complainant on the count of mental harassment and Rs.1000/- (One Thousand Rs. Only) for the cost of litigation within 30 days from the date of receipt of this Judgment."
Being aggrieved from the order passed by the District Forum, Kasliwal Constructions preferred an appeal before the concerned State Commission. Vide impugned order dated 29.07.2015, the State Commission allowed the appeal filed by Kasliwal Construction and set aside the order passed by the District Forum. The complainant had also filed an appeal challenging the order of the District Forum since they were not satisfied with the quantum of compensation awarded to them. That appeal however was dismissed by the State Commission.
XXXXXXX
XXXXXXX
When these matters came up for hearing on 07.12.2015, the learned counsel for the petitioners/complainants stated that the complainants/petitioners will engage an architect to inspect the flat in question and report the defects existing therein along with the cost of removal of those defects. The complainants have thereafter engaged M/s. Samarth Consultants who have inspected the flat purchased by them and have submitted a report estimating the cost of removing the defects and deficiencies pointed out in their report.
Admittedly, no architect or engineer was produced by the petitioners/complainants before the District Forum either to prove the alleged defects/deficiencies in the constructions of the flat purchased by them or to prove that the construction material used by the respondents of a sub-standard quality. Since they have now engaged Samarth Consultants who have also submitted a report in this regard, the said report, in our view, needs to be considered first by the District Forum. We therefore set aside the impugned orders and remit the matter back to the District Forum with a direction to decide the complaint afresh after examining M/s Samarth Consultants who have inspected the flat of the complainants and submitted the report dated 24.12.2015. We however make it clear that clause 3 of the sale deed precluding the complainants from having claim against the respondents/opposite parties shall not come in the way of compensation being awarded to the complainants for the alleged defects and deficiencies in the construction of the flat purchased by them, the said clause being an unfair trade practice besides by and otherwise void, in view of Section 28 of the Indian Contract Act. Xxxxxxxx
After the above referred order passed by this Commission, the complaint was decided afresh by the District Forum vide its order dated 10.08.2016 after examining M/s Samarth Consultants. The learned counsel for the petitioners submits that the respondents were permitted to serve interrogatories upon the expert but the said interrogatories were never filed and therefore, could not be answered.
Being aggrieved from the order passed by the District Forum, both the parties approached the concerned State Commission by way of two separate appeals being FA No.840/2016 and FA No.861/2016. The said appeals are still pending. Vide interim order dated 10.04.2018, the State Commission directed as under:
"On hearing these appeals according to learned advocate for M/s Kasliwal Constructions, appellant in Appeal No.861/2016 the project constructed was completed and M/s Tapdia Construction Limited (one of the party before us) were granted permission for the construction as also occupancy certificate by letter bearing no.358/17/2011-12 dated 31.03.2012. Though Ltd. Adv. Shri Patni submits that completion and occupancy certificate is regarding the said project, the appellant shall produce certificate regarding completion of G-22 row-house as also completion thereon in accordance with the approved plan from local planning authority i.e. Aurangabad Municipal Corporation Town Planning Department at Aurangabad.
Since both these appeals for checkered history and earlier conflicting decision by Ld. Forum below, we think it proper to insist upon material document so that appellant in either case shall point out that row-house G-22 in respect of this consumer complaint was made was constructed and completed in accordance with the sanction plan by local planning authority. Both parties are at liberty to produce said material evidence before us for final decision in the appeals. Parties shall cooperate each other for Architecture or Structural Engineer to report the defective situation in respect of row-house as also completion certificate showing that row-house building was completed in all respect and occupancy permission was obtained accordingly. SO-07.06.2018."
Being aggrieved from the order passed by the State Commission, the petitioners/complainants are before this Commission by way of these two separate revision petitions.
I am in agreement with the learned counsel for the petitioners that in view of the order of this Commission dated 11.01.2016, the District Forum was required to decide the consumer complaint after examining M/s Samarth Consultants. That having been done by the District Forum, there was no occasion or justification for the State Commission to pass the impugned order dated 10.04.2018. The said impugned order dated 10.04.2018 is therefore, set aside and the State Commission is directed to decide the appeals filed by the parties on merits on the basis of the record which was available to the concerned District Forum. The revision petitions stand disposed of.