RAMDHARI D. MISHRA Vs. DILIP S. GADA (SHAH)

JUDGEMENT

(1.) This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the impugned orders dated 07.06.2007 and 19.06.2007, passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in Miscellaneous Application No. 614/2004 in consumer complaint No. C-71/98, in the Execution Proceedings against the opposite party (OP) builder.

(2.) The facts of the case are that the complainant Dilip S. Gada (Saha) entered into an agreement for purchase of flat No. 501 in the building of Friends' Cooperative Housing Limited, being constructed on plot No. 30, Sector 7, Airoli, Navi Mumbai, District Thane from respondent No. 2/Opposite Party-1 (OP) M/s. Superior Builders and paid a sum of Rs. 5,10,000/-. The price of the flat was later revised to Rs. 6,15,000/- to be paid on or before 27.06.96. The OPs/respondents Kailash Khedkar and Jagannath Bhikaji Khedkar (J.B. Khedkar) are the partners in the said firm Superior Builders. However, later on, the said building was taken over by the present petitioner Ramdhari Devnarayan Mishra who stepped into the shoes of the original builders. The complainant filed complaint No. 71/1998 before the State Commission against the original builders, alleging that the original builders had failed to hand over the possession of the said premises to the complainant, even after accepting the deposit of 5 lakh. The complainant sought relief saying that a direction be given to the builders to complete the construction of the proposed building, with all amenities as stated in the agreement dated 27.02.1995. In case, they were unable to do so, they should be asked to refund the amount of 5 lakh deposited with them, along with a further interest of 5 lakh. The complaint was resisted by the OP Builders by filing a written statement before the State Commission in which they stated that as per the revised plan of the building, the area of the flat being constructed had also increased from 850 sq. ft. to 955 sq. ft. and the total amount payable was Rs. 9,55,000/- and hence, the complainant was still to pay the balance amount of Rs. 4,55,000/- to them. The OPs stated that due to recession in the real estate and the money market, the purchasers were not coming forward to make payments. However, the OPs were willing to accept the remaining amount and were ready to finish the work and deliver possession. The OP also stated that they were prepared to refund the amount of 5 lakh without interest to the complainant.

(3.) The State Commission passed an order dated 2.01.2003 in the consumer complaint, by which they directed the OPs to refund the amount of 5 lakh deposited by the complainant along with interest @18% p.a. from the date of payment till realisation and also to pay 1 lakh as compensation to the complainant and Rs. 7,500/- as cost of litigation. The order of the State Commission was challenged by either of the parties in appeal/revision petition and hence, became final. The complainant then made an execution application No. 614/2004 on 11.03.2004 before the State Commission. It was stated in the said application that the amount payable to the complainant as on 29.02.2004 in accordance with the order of the State Commission dated 2.01.2003 was Rs. 12,84,906/-. However, since the OP Builders had paid the said amount in pursuance of the order of the State Commission, the application had become entitled to have the property attached. It was prayed that the award should be executed by taking possession of the flat in question. It was also stated in the execution application that in the event of the applicant opting for possession of the flat, the same should be handed over to him in full and final satisfaction of the Award. As per order dated 12.03.2004, recorded by the State Commission, the OP J.B. Khedkar, appeared before the State Commission and stated that the construction of the building had been completed and the flat earmarked for the complainant was ready and they were willing to hand over the possession of the flat to the complainant. He also gave a statement that the said flat shall be handed over to the complainant in the first week of June 2004. Learned counsel for the complainant also stated that they were willing to accept the flat. A direction was issued by the State Commission to the OPs that they shall create any third party interest in respect of the flat in question. Further, as per another order dated 01.07.2004 made by the State Commission, it was stated that the matter was finalised as recorded in the order dated 12.03.2004. The State Commission appointed a court receiver to take possession of the flat after following usual procedure. As stated in the order dated 13.01.2005 of the State Commission, the court receiver filed his report dated 23.07.2004 before the State Commission, saying that he could get possession of the flat, as he found that Ramdhari Devnarayan Mishra (R.D. Mishra), the proprietor of M/s. Mishra Builders and developers, the present petitioner was in actual possession of the entire building including flat No. 501 and the said R.D. Mishra refused to hand over the possession of the flat to the receiver. The State Commission issued bailable warrants against J.B. Khedkar, for non-payment of a sum of Rs. 12,66,798/-. Further, there is a document carrying the signatures of the petitioner R.D. Mishra and the previous builder J.B. Khedkar, saying that both of them were taking over the liability under Consumer Complaint No. 71/1998 and M.A. No. 614/2004. The State Commission passed an order dated 29.03.2005 in which the learned counsel for Superior Builders made a statement at the Bar that fresh registered agreement in favour of the complainant by the new builders will be executed within two weeks of the date of the order. The State Commission recorded an order dated 21.04.2005, issuing bailable warrants against J.B. Khedkar and the new builder R.D. Mishra. Further, on record is a copy of the agreement dated 05.07.2005 between the Complainant and R.D. Mishra, according to which the complainant agreed to purchase flat No. 801, measuring 764 sq. ft. in the same building for a sum of Rs. 9,51,000/-. It was stated in the agreement that the developer shall hand over legal possession of the premises to the purchaser on or before 01.02.2006. The said agreement is signed by the petitioner R.D. Mishra and the complainant Dilip S. Gada (Saha). A copy of the receipt issued by the petitioner R.D. Mishra has been placed on record, according to which, he received a sum of Rs. 9,51,000/- from the complainant Dilip S. Gada (Saha). Another document dated 03.05.2005 with the title "Memo of handing over key" has been placed on record, in which it is stated that J.B. Khedkar, the previous builder and R.D. Mishra, the new builder had handed over one key of flat 801 to the complainant on that date for making furniture and some sanitary work. It was stated in the said document that the second key will be handed over to the complainant after obtaining the occupation certificate, which was expected to be received within a time of 6 to 8 months. The second key was kept with the developer for finishing the balance work of the flat. It was also stated that the key was being handed over in pursuance of the statements recorded in the State Commission in MA No. 614/2004. Vide impugned order dated 07.06.2007, it has been stated that the earlier warrant had been executed and a demi-official letter should be written to the Commissioner of Police, Mumbai. A non-bailable warrant was ordered to be issued against R.D. Mishra. Vide another order dated 19.06.2007, it was stated that as per the registered agreement signed between the complainant and the new builder, clause No. 11, occupation certificate of the building was to be obtained by the builder within 6 to 8 months from the agreement but the builder failed to obtain the same, and hence, non-bailable warrants were being issued against R.D. Mishra as he had failed to comply with the terms and conditions of the registered agreement.