Shantisadan C.H.S. Ltd vs Kalpagam Chandramoleshwar

V.K.Jain, J

The complainants, who were the members of the petitioner Society, booked residential flats in a building which the Society was proposing to construct at Village Chikhale, Taluka Panvel in District Raigad and made part payments to the Society. The complainant in R.P. No. 79/2018 made payment of Rs. 2,70,000/-, whereas the complainant in R.P. No. 1198/2018 made payment of Rs. 3,62,000/- to the petitioner Society. After the aforesaid payment, the petitioner Society demanded further payment from the complainants. The said further payment having not been made, the allotment was cancelled. Being aggrieved, the complainants approached the concerned District Forum by way of separate consumer complaints, seeking completion of the construction and delivery of possession of the allotted flats alongwith compensation.

The complaints were resisted by the petitioner Society, primarily on the grounds that the complainants had failed to pay the contribution demanded by the Society and the Society had already entered into a tripartite agreement with one Mr. K. K. Kamath, the Society, the builder and Mr. K. K. Kamath, being the only parties to the said tripartite agreement.

The District Forum allowed the consumer complaints and directed the complainants to pay the balance amount of Rs. 85,250/- in R.P. No. 79/2018 and Rs. 70,500/- in R.P. No. 1198/2018 to the Society towards the cost of the flats. The Society was directed to complete the construction of the flats and give possession thereof to the complainants. A sum of Rs. 3 lakh each was awarded to the complainants towards expenses, mental agony and torture. An option was given to the petitioner to refund the amount of Rs. 2,70,000/- to the complainants in each consumer complaints alongwith interest @ 6% per annum in case it was unable to deliver possession of the allotted flats. The interest was to increase to 9% per annum in case the order was not complete within a period of six months.

Being aggrieved from the order passed by the District Forum, the petitioner as well as the complainants filed cross appeals before the concerned State Commission. Vide impugned order dated 01.11.2017, the State Commission while reducing the quantum of compensation of Rs. 1 lakh in each case and also awarding Rs. 25,000/- as the cost of litigation in each case, also set aside the option given by the District Forum to the petitioner Society to refund the amount received from the complainants alongwith interest on that amount. Being aggrieved from the orders passed by the State Commission, the petitioner Society is before this Commission by way of these revision petitions. The complainants have not challenged the order passed by the State Commission.

We have perused the tripartite agreement executed between the petitioner Society, the builder M/s. Swastik Constructions and Mr. K. K. Kamath. Neither the flat allotted to the complainant in R.P. No. 79/2018 namely Kalpagam Chandramoleshwar nor the flat allotted to the complainant in R.P. No. 1198/2018 namely Radhakumari R. Iyer (through legal representatives) was subject matter of the said tripartite agreement. Therefore, it cannot be said that the flats allotted to the above referred complainants are no more available to the petitioner Society. The learned counsel for the petitioner Society stated that in fact the Society had already allotted these flats to third parties who were not impleaded as the opposite parties in the consumer complaints. However, a perusal of the written version filed by the petitioner before the concerned District Forum would show that no such plea was taken in the written version filed by the petitioner Society. The only plea taken in the written version was that the Society had executed tripartite agreement with Mr. K. K. Kamath in respect of the flat allotted to the complainants. That plea is found to be incorrect on a perusal of the tripartite agreement between the Society, M/s. Swastik Construction and Mr. K. K. Kamath.

The next question which arises for consideration is as to whether there was default on the part of the complainants in making the payment to the Society. The onus was upon the petitioner Society to prove the alleged default. The petitioner has not placed, on the record of the revision petitions, the allotment letters issued to the complainants. In the absence of the allotment letters, it is not possible for us to find out what exactly was the sale consideration agreed between the parties and when the balance sale consideration was required to be paid. It was for the petitioner to prove that the terms of the allotment required the complainant to pay a particular amount as the balance sale consideration by a particular date or on the construction reaching a particular stage. Since no such evidence having been produced by the petitioner Society, we are unable to accept the plea that the complainants had defaulted in performance of their respective contractual obligation.

For the reasons stated hereinabove, we find no justification in interfering with the orders passed by the State Commission. The revision petitions, being devoid of any merits, are hereby dismissed.