NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 346 OF 2011
(Against the order dated 3.05.2011 in Complaint Case No.CC/09/52
of the State Commission, Maharashtra)
M/s. Dorabjee Estates Pvt. Ltd.
Prime Arcade, Office No.1,
1154, Saifee Street, Pune 411 001
Maharashtra ……….Appellant
Versus
Mr. Shoan Ashok Khetarpal
C/32, Hriparva Wanwadi,
Pune 411 001, Maharashtra .........Respondent
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Appellant : Mr. P. Sureshan &, Mr. Ajay Paniker
Advocates
PRONOUNCED ON: 28.03.12
ORDER
PER MR.VINAY KUMAR, MEMBER
The dispute in this appeal pertains to purchase of two flats by the respondent/Complainant from the appellant/OP. The two flats were booked in 2005 with the agreed price of Rs.10.12 lakhs each.
2. The case of the Complainants before the State Commission was that the ICICI Bank had agreed to sanction a loan of Rs.20,00,000/- for this purpose, subject to furnishing of documents pertaining to—
a) sanction of the scheme by the competent authority and
b) approval of the building plan.
Allegedly, the Builder/appellant agreed to provide the relevant documents, but never actually supplied the same. Due to this reasons, disbursal of the loan was refused by the Bank. Consequently, the respondent could not pay the balance of the price of the two flats.
3. It is also alleged that in March, 2008 the allotment was unilaterally cancelled by the Builder/OP. Subsequently, the Complainant was asked to pay an enhanced price. As the matter could not be resolved even with the intervention of the Akhil Bhartia Grahak Panchayat, a consumer complaint was filed.
4. The State Consumer Disputes Redressal Commission Maharashtra, allowed the complaint in the following terms:-
“Complainant is hereby directed to pay an amount as per the allotment letter dated 29/09/2005 excluding the amount already paid. In order to avail the facility of Housing loan, opponent is directed to hand over copies of legal and technical sanction of the project and approved plan sanctioned by the Pune Municipal Corporation within a period of 15 days.
On receipt of payment of consideration as per allotment letter dated 29/09/2005 the opponent is hereby directed to execute Sale deeds of flat nos.301 & 302 in “Dorabjee Enclave” and hand over possession to the complainant within one month.
Opponent is hereby directed to pay compensation of 1 lakh to the complainant for mental agony and harassment within a period of two months from the date of order.
Opponent to pay cost of 10,000/- to the complainant within a period of two months from the date of order and bear his own costs.
If the amount of compensation and cost is not paid within two months, it will carry interest @ 9% p.a. till its realization.”
5. The Builder/OP M/s. Dorabji Estate Pvt. Limited has filed this appeal against the above order. The main ground of appeal is that the State Commission has failed to consider that the Complainant had paid only about 20% of the agreed consideration. The appellant also contends that the respondent/Complainant had never approached him for any documents required for sanction of the bank loan. Therefore, the question of supply of such documents does not arise.
6. We have perused the record and heard counsel for the appellant. In the appeal petition it is contended that the State Commission has failed to consider the fact that the respondent had paid only a part of the consideration amount. Clearly, this argument arises from an ignorance of directions of the State Commission. The impugned order clearly acknowledges the fact that the agreed consideration has been paid only in part and not fully. It has therefore directed that-
“Complainant is hereby directed to pay an amount as per the allotment letter of 29.9.2005 excluding the amount already paid.”
This direction is totally unambiguous and leaves no room for the contention of the appellant. We therefore, reject this contention.
7. Before the State Commission, another contention of the appellant/OP was that the flats were alloteed to the Complainant subject to the sanction of TDR by Pune Municipal Corporation. In support of this contention the affidavit of Mr. Razak Sheikh was filed before the State Commission stating that the Complainants had booked the flat through him and that at the time of booking, he had been informed that the construction will be undertaken after the necessary sanction of the TDR. Mr. Razak Sheikh was himself the architect of the project and therefore, his testimony was rightly rejected by the State Commission. It is significant to note that in the complaint petition the respondent/Complainant has clearly stated that he was not informed at any stage, since the initial payment in 2005, that the builder did not have valid permission to purchase TDR. But, no evidence was produced by the appellant/OP before the State Commission against this categorical averment in the complaint petition. The State Commission has therefore, observed that apart from the testimony of Shri Razakh Shaikh, no evidence was produced by the OPs in support of their claim that the allotment of the flat was subject to sanction of the TDR by the Pune Municipal Corporation.
8. The State commission has considered the communications from the ICICI Bank of 20.10.2005 and of 10.1.2008 in which sanction of the loan, subject to the conditions mentioned in the earlier part of this order, had been communicated to the respondent/Complainants. Based thereon the State Commission has concluded that while the loan had been sanctioned by the Bank, its disbursal could not take place because of the failure of the Builder/OP to supply the necessary documents.
9. The complaint petition before the State Commission also refers to certain relevant information obtained from the Pune Municipal Corporation under the provision of the RTI Act. Considering the same with the written response of the Builder/OP, the State Commission has concluded that the construction itself had been undertaken without proper approvals.
10. In the light of the above, we are in full agreement with the conclusion arrived at by the State Commission that as the construction itself was without proper permission/sanction, the Builder/OP was in no position to supply the documents required by the Complainant for the disbursal of the housing loan. Therefore, the State Commission has rightly concluded that in the facts and circumstances of the case, the Builder/OP could not have legally terminated the allotment. For the same reason, the appellant/builder could not have asked for enhanced consideration to restore the same.
11. In the course of consideration of this appeal, it was also argued by the learned counsel for the appellant that the award of the State Commission goes beyond the prayer of the Complainant. The State Commission, it is argued, has directed appellant to hand over possession of the two flats when there was no such prayer in the complaint. This argument does not carry any substance. The Complaint petition clearly carries a prayer to permit him to pay the balance of the price and to require Builder/OP to complete the transaction of sale of the two flats. Learned counsel could also not answer how the complete price of the flats could have been demanded in 2007 and the allotment terminated, when the approval of the TDR itself was received subsequently in 2008 from the Pune Municipal Corporation.
12. In the result, we find no substance in this appeal. Consequently, the same is dismissed and the order of the State Consumer Disputes Redressal Commission in Complaint Case No. CC/09/52 confirmed. No order as to costs.
.………………Sd./-…………
(V.B.GUPTA,J.)
PRESIDING MEMBER
………………Sd./-………….
(VINAY KUMAR)
MEMBER
s./-
