Robbery of Bank Locker ……whether bank is liable for loss to the customer

 

Robbery of Bank Locker ……the bank is liable for loss to the customer under the Consumer Protection Act

  

Gist

June 13, 2017

  1. 26 lockers at a Punjab National Bank (PNB) branch in Ghaziabad near Delhi emptied out.
  2. CCTVs not working, no guard at bank.
  3. Robbery during week end by gang drilling hole into bank wall.

Facts

A group of thieves demolished a portion of the wall of the Punjab National Bank (PNB) bank’s branch in Ghaziabad  and emptied about 30 lockers.  The value would be in crores of rupees.

The police officers probing the bank robbery found that the CCTV cameras were not working, and there was no guard at the bank.

The police found that the gang had entered the bank by boring through a concrete wall. A dense cover of bushes concealed them as they demolished the wall.

According to the police, the burglary which was discovered on June 12, 2017

took place either on Saturday or Sunday when the bank was shut.


“I visited the crime spot and found that the bank lacks security measures. If any attempt was made to intrude into the bank, a siren should have gone off. But the siren did not work,” said a police officer.

 

Whether the Banks are liable for the loss


Similar locker robberies have taken place from time to time. The Banks deny any liability.

 The RBI and the public sector banks deny any liability

 A lawyer filed applications under the Right To Information Act (RTI) to the Reserve Bank of India  and 19 Public Sector Banks.

 

The Reserve Bank of India  and the 19 Public Sector Banks absolved themselves of any responsibility of items from personal lockers. They replied that Banks are not responsible for the loss or robbery of any valuables from a personal locker because the relationship between customers who use bank lockers and the banks themselves is that of a lessee (landlord) and lessor (tenant). 

 

Decisions under the Consumer Protection Act

 

The following are the arguments usually advanced by banks in such cases:


(i) That since the controversy involved in this case pertains to a criminal case which is also pending  before the competent criminal court, therefore, this Commission had no jurisdiction to decide the matter in question and thus the complaint filed by the complainant is not maintainable.

 

(ii) That as per the agreement executed between the complainant and opposite party  and as per terms and conditions thereof the complainant is estopped from questioning the bank for stolen of the ornaments in the incident of theft which had taken place in the bank.

 

(iii) That under the  conditions of the Safe Deposit Memorandum of hiring of lease,  it is clearly mentioned that the bank would not be responsible for any damages or loss to the contents kept in the safe deposits vault as a result of any act of war or civil disorder or theft or burglary and the contents would be kept by the hirer at his sole risk and responsibility. In light of above, for the loss of articles  in any incident of theft/ burglary, the bank cannot be held liable.

Various Consumer Commissions and Forums have found the bank liable in appropriate cases.  I am giving the link to one decision.

 

Decision of the State Consumer Disputes Redressal Commission
RAJASTHAN, JAIPUR

Vivek Agarwal  & Ors.  Vs  Indian Overseas Bank

19 May, 2010

LG ordered to replace Defective Air Conditioner


In one of my earliest consumer dispute cases filed for defective Air Conditioner in 2012,

the Addl. Consumer Disputes Redressal Forum, Mumbai Suburban District Admin Bldg.,

3rd floor, Nr. Chetana College, Bandra-East, Mumbai-51 has passed its order on 1.2.17

Complaint Case No. RBT/CC/12/93 1.

ANILA GUPTA , BINOY GUPTA
1101, SHIROMANI, RAJ KAMAL LANE, PAREL, MUMBAI-12. ………..Complainant(s)

Versus

  1. SNEHANJALI 1, BONANZA ARCADE, S.V ROAD, AMBOLI, OPP. RAILWAY STATION CROSSING, ANDHERI-WEST, MUMBAI-58.
  2. L G ELECTRONICS INDIA PVT. LTD., PLOT NO. 51, SURAJPUR KASNA ROAD, GREATER NOIDA, U.P.-201306. …………Opp.Party(s)

In the result we pass the following order.

ORDER

 

  1. RBT Consumer Complaint No. 93/2012 is partly allowed.
  2. The Opposite Party No.2 LG Electronics India Private Limited is directed to replace AC Model No.LSA5ZGSN with new AC of same quality and description within two months from the date of receipt of the order.
  3. The Opposite Party No. 2 is directed to pay Rs.10,000/- as compensation for mental angry to complaint No. 1.
  4. No order as to cost.

 Copy of this order be sent to the both parties. [HON’BLE MR. S.D.MADAKE] PRESIDENT [HON’BLE MR. S.V.KALAL] MEMBER

 

Link to the full decision:

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=21%2F608%2FRBT%2FCC%2F12%2F93&dtofhearing=2017-02-01

Appeal

The order is good. But the District Forum has directed LG is replace the old AC with another new one of the same model. This model has been discontinued several years ago.
Further, the Forum has not awarded any interest and costs which is normally done. 
I have therefore preferred appeal in the State Commission.

Happy Ending

LG has agreed to replace the old AC with one of the latest versions and pay compensation of Rs. 10,000.  I will withdraw the appeal.

Builder liable to hand over areas shown open in the original plans (even if the constructions are made with the approval of the Municipal Corporation)

 

Duty of  Builder :

To pay Interest and compensation for delayed possession;  builder liable to hand  over areas shown open in the original plans (even if the constructions are made with the approval of the Municipal Corporation) and that  no fees can be collected for car parking spaces.

 

In CONSUMER CASE NO. 1479 OF 2015

DEVELOPERS TOWNSHIP PROPERTY OWNERS WELFARE SOCIETY
505, Hemkunt Chambers, 89 Nehru Place,
New Delhi – 110 019.                                                         ………..Complainant(s)

Versus

JAIPRAKASH ASSOCIATES LIMITED
Jaypee Greens, Sector -128, Noida – 201 304
Uttar Pradesh. …………………………………………………………….Opp.Party(s)

 

By its order dated 2 May 2016, NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

Decided the following issues.

 

Interest and compensation for delayed possession;  builder liable to hand  handing over areas shown open in the original plans (even if the constructions are made with the approval of the Municipal Corporation) and that  no fees can be collected for car parking spaces.

 

“ 31. This Commission in the case of M/s G.G. Associates & Ors. Vs. Commodore Ravindra Kumar Narad & Anr. Revision Petition No. 1647 of 2014, decided on 16.10.2014, placed reliance on a Ruling reported in Kalpita Enclave Co-op. Housing Society Ltd. Vs. Kiran Builder of the Hon’ble Bombay High Cour t, it was observed that “if the original plans and specifications on the basis of which the persons were persuaded to purchase the flats discloses that certain areas will be kept open it would be clear contravention of the agreement as well as the law if the promoter proceeds to construct additional structure on those places even with the sanction of the Municipal Corporation”.

 

“ FINAL ORDER :

i) It was stated by the counsel for the OP at Bar that they would send offers of possession of allotment within three months from 22.04.2016. There is already huge delay. We accept the offer made on behalf of the OP and direct the OP to handover the possession of the premises in dispute within three months from 22.04.2016 to 21.07.2016, otherwise, it will pay penalty in the sum of Rs.5,000/- per flat / per allottee/allottees, per day, till the needful is done; -15

ii) For the delayed period, the OP is directed to pay interest @ 12% p.a., on the amount(s) deposited by the respective complainants w.e.f. 39 months’ from the date of respective provisional allotment letters, till the actual physical possession as per prayer clause (a), is handed over by the OP. All the necessary documents, common areas and facilities be also provided.

iii) The OP is further directed to provide adequate car parking spaces in the project for the complainants therein and refund the excess amount, if any, collected from the members of the Complainant Society towards car parking slots, with interest @ 12% p.a., from the date(s) of charging, till its realization.

iv) As per law laid down in K.A. Nagamani (supra), we further impose costs in the sum of Rs.50,000/- payable to each of the flat allottee / allottees, total being Rs.5,00,000/-, for all the flat owners. The said amount be paid within 90 days’ from the date of receipt of copy of this order, otherwise, it will carry interest @ 9% p.a., till its realization.

Link to the full decision:

file:///C:/Users/Eleena/Downloads/National%20Commission%20judgement2016-05-02%20(1).pdf

Execution Applications under Section 25 and 27 of the Consumer Protection Act


Execution Applications under Section 25 and 27 of the Consumer Protection Act

What to do if the Opposite Party does not obey the order of the various Consumer Forums / Commissions which have attained finality…..
You have to file Execution Applications under Section 25 and 27 of the Consumer Protection Act

 

In Maharashtra State Consumer Disputes Redressal Commission
Mr Amir Ali Tharani  vs  Mr Rajesh Sukhtnkar decided on 27 September, 2010, the Commission has detailed the difference between these two provisions and the procedure to be followed.

I am giving the gist below…….I am also giving the link to the full decision at the end of this article.


            (j)      While dealing with proceeding under Sections 25 & 27, procedure as provided under Sections 13 & 14 will not be applicable;

           (k)     Proceeding under Section 27 is a criminal proceeding and the said proceeding is required to be dealt with in accordance with the provisions laid down in Section 27 only.  The procedure is a summery criminal procedure to be followed in case of offence and therefore, Chapter XX & XXI which dealt with the procedure of the summery trial of the criminal case will be and shall be applicable in a proceeding under Section 27;

          (l)      It is clarified that the orders passed by the Consumer Fora are no more deemed to be a decree of the Civil Court so as to attract provisions of Order XXI of Code of Civil Procedure.  After the amendment of Section 25, procedure as provided in old Section 25 is not applicable and therefore, the Consumer Fora cannot invoke powers under Order XXI of Code of Civil Procedure for execution of the order; after new Section 25 has been brought on Statute Book dated 15/03/2003 and therefore, neither the Consumer Fora nor the Civil Court can now execute the orders of the Consumer Fora as if they are decrees of the Civil Court as was permissible under the old Section 25;

          (m)    Under Section 27 District Consumer Forum in a composite way is constituted as a Judicial Magistrate of First Class and conferred with the powers of the Judicial Magistrate of First Class and this status and the powers have been given by Section 27(2) by applying non-obstante clause and it is clarified that said non-obstante clause is only applicable in sub-Section (2) of Section 27 by which the Consumer Fora have been declared as a Judicial Magistrate of First Class with conferment of powers as such Judicial Magistrate of First Class.  Had the said non-obstante clause been not there, it would have been necessary for the Consumer Fora to get a status of Judicial Magistrate of First Class and conferment of the powers under Section 11 of Code of Criminal Procedure.  However, in order to avoid such difficulties, the Legislature has directly conferred the powers & status of the Judicial Magistrate of First Class directly by the legislation and for said limited purpose, non-obstante clause has been introduced in Section (2) of Section 27.

            It is to be clarified that offence under Section 27(1) of the Act has been provided under the Special Act, namely, Consumer Protection Act, 1986.  So far as trial is concerned, sub-Section (3) has specifically provided for summary procedure of trial and we held that the procedure as provided under Chapter XX & XXI of Code of Criminal Procedure is required to be followed.  We also clarify that in view of provisions of Section 45 & 6 of Code of Criminal Procedure read with provisions of Consumer Protection Act, 1986 it follows that except and for the purpose, the specific procedure which has been provided under the Consumer Protection Act, 1986 rest of the procedure as may be applicable from the Code of Criminal Procedure shall be followed by the Consumer Fora while dealing with the complaint or application under Section 27 i.e. while sitting and dealing with the application under Section 27 as a Judicial Magistrate of First Class and from that angle, we have analysed the procedure in the earlier part of the judgement.

        The third party application may be permissible in a proceeding under Section 25(1) &(2) as discussed above.  However, third party proceeding is not applicable in case of proceeding under Section 25(3) before the Consumer Fora.  That may be possible while the Collector has taken steps for recovery of the amount as arrears of land revenue under Section 210 of the Maharashtra Land Revenue Code, 1966. So far as proceeding under Section 27 is concerned, there would not be a third party proceeding, since this is a criminal proceeding where the opponent who is a person allegedly committed an offence as provided under Section 27(1).  This a question is to be considered by the Consumer Fora sitting as Judicial Magistrate of First Class composite.

       (n)     There may be multiple execution applications either under Section 25 or under Section 27 depending upon the facts of the case;

 

Link to the full decision:
https://indiankanoon.org/doc/48891284/

 

Separate conveyance must for each housing society on one plot

 

Separate conveyance must for each housing society on a plot

Jehangir B Gai | TNN | Mar 22, 2010, 05.17 AM IST

Builder held liable to execute separate conveyance for each society building

 

BACKDROP: It is common to come across builders failing to execute conveyance to retain their hold over the land. This is not permissible, as per a recent ruling of the Consumer Forum for Mumbai Suburban District, in the case of Mamta-D Co-operative Housing Society v/s Gundecha Builders.

 

Case Study: Gundecha Builder had constructed four buildings at Prabhadevi. These were named Mamta-A, B, C and D Co-operative Housing Society. Of these, Mamta-D CHS raised a grievance against the builder, stating that its members had purchased flats by paying the entire consideration and taking possession in December 1984, and thereafter the society was formed and registered in December 1989, yet the conveyance was not executed as required by law. The society also wrote to the builder and demanded that he construct independent boundary walls for their building and execute conveyance. Since the builder failed to pay heed, in May 2001, the society filed a consumer complaint against the builder.

 

The builder contested the complaint. He claimed that that since the four buildings were constructed on one plot of land, it was not possible to get the mutation done in the land records for sub-division of the plots. Consequently, it would not be possible to execute separate conveyance for Mamta-D Society. He claimed that when the construction work on the plot is completed, he would execute the conveyance for all the buildings, and the society should bear with the delay. The builder stated that the complaint was devoid of any merit and should be dismissed. The society claimed that the builder’s stand was incorrect because the four buildings were not joined, each had a separate entrance and it was possible to construct independent boundary walls around each building.

 

After hearing advocates Uday Wavikar and Mr Wankhade for the society and advocate Bhandari for the builder, the forum observed that the builder was bound by the terms and conditions of the agreement and was also required to abide by the provisions of the Maharashtra Ownership Flats Act (MOFA). The law casts a duty on a builder to execute conveyance within four months of formation of the society. As this has not been done, the builder is guilty of violating the law and there is a deficiency in the service rendered by him.

 

The Forum noted that in the present case, when the complaint was argued out in the year 2010, the builder had not yet executed conveyance even though more than 20 years had elapsed from the date of formation of the society. The forum also observed that builders try to delay or withhold conveyance to take advantage of any subsequent increase in FSI, which is not legally permissible. Conveyance has to be executed within four months of formation of the society, and in case any additional FSI is available, its benefit accrues to the society which is the real owner of the land.

 

G L Chavan, delivering the judgment on behalf of the Bench comprising himself and President Suman Mahajan, upheld the complaint. By an order dated February 26, 2010, the builder was directed to construct an independent boundary wall for the society and also execute conveyance. Six months’ time was given for compliance of this order. In case of non-compliance within this period, the builder was liable to pay a compensation of Rs 50 to the society for each day’s delay. In addition, Rs 5,000 was awarded as costs.

 

Impact: The compensation of Rs 50 per day for each day of default and delay in executing conveyance should send a strong signal to other builders to desist from adopting similar unfair practices.

 

The latest update:

Gundecha Builders filed appeal against this order. The following is the latest status:

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI 
APPEAL NO. A/10/369
 
M/S.GUNDECHA BUILDERS Vs. MAMTA D CO-OP. HSG. SOC.LTD.
 
BEFORE: Justice R. C. Chavan, President Dhanraj Khamatkar, Member
 
   
Dated : 22nd  June 2015
ORDER: Advocate Mr.Mohit Bhansali is present for the appellant.  Advocate Mr.Uday Wavikar is present for the respondent.  Both the Ld.Counsel state that they are trying to settle the matter amicable and therefore, seek time. Time is granted.  Matter is adjourned to 26/08/2015.

 

National Green Tribunal decides on municipal issues such as parking spaces, recreation grounds and fire safety within the scope of environment jurisdiction


By this judgment, for the first time, the National Green Tribunal brought municipal issues such as parking spaces, recreation grounds and fire safety within the scope of environment jurisdiction.”

 

Judgement of the National Green Tribunal (Principal Bench, New Delhi) in the matter of Sunil Kumar Chugh & Ors. Vs. Secretary, Environment Department, Govt. of Maharashtra & amp; Ors. dated 03/09/2015

In this landmark order The National Green Tribunal, directed a developer to remit Rs 3 crore towards the environmental relief fund and stopped the construction and sale of a slum rehabilitation project at Antop Hill, Mumbai till the amount was paid and plans amended to include additional parking space.

The order was in an appeal filed by Sunil Chugh against environmental clearances granted to Priyali Builders last March for construction on a 6,500- sq m plot in Sion-Koliwada despite violations to the town planning and environmental laws.

After hearing advocate Aditya Pratap for Chugh, Vikas Malhotra for the environment department, Anand Yagnik for the Slum Rehabilitation Authority (SRA) as well as others, the tribunal panel, headed by former Supreme Court judge Swatanter Kumar, held that the builder needs to correct certain lapses in the project.

The panel directed the builder to pay Rs 3 crore to the SRA within a fortnight and Rs 32 lakh towards deficient recreational area to the Maharashtra Pollution Control Board for incurring expenses on environmental and ecological rehabilitation. The tribunal said that the developer must modify the building plans and get them approved for additional parking space in the sale building from the seventh storey upward to make parking space available for both the rehabilitation building and the sale building. It also imposed a Rs 1 lakh cost on the builder.

The land, which was encroached by slums, was reserved for a municipal office and road when the builder submitted a proposal to the SRA to rehabilitate 324 tenements in 1997. Five years later, the builder got the first letter of intent for 14,600 sq m built-up area and was later granted permission for more construction, which the tribunal was told exceeded 20,000 sq m attracting a prior environment clearance.

The builder said the SRA had permitted reduction in the amenity area to 8% and allowed the recreational area above the podium level. But the tribunal observed that the SC held that “right to clean and healthy environment is within the ambit of Article 21 (right to life) and that open land around a building can only be at the ground level, not podium”.

Observing lack of paucity of parking space, the tribunal directed that “three floors shall be made available from seventh floor onwards from the area available for construction of flats…to ensure adequate parking spaces…and ensure that vehicles do not spill out on the streets resulting in congestion and prevent adverse impacts on the environment”.

The judgment written by judicial member U D Salvi said the term built-up area includes both FSI and non-FSI areas. In this case, the built-up area was 30,000 sq m, which included over 12,000 sq m of non-FSI area. This will help end the practice of builders trying to separate the two to evade environment clearance, said a lawyer.

 

 Link to the full decision:

http://www.indiaenvironmentportal.org.in/files/building%20environment%20clearance%20NGT%20Mumbai.pdf

Purchase of two flats does not indicate purchase for Commercial Purpose


Purchase of two flats does not indicate purchase for Commercial Purpose

 

Till recently, it was considered that a person can occupy only one flat. If he purchases
more than one 
 flat, it was presumed that the purchase was for the commercial purpose of investment, and complaints were dismissed. The National Commission has now clarified the law on the subject.

 

Rajesh and Deepa Malhotra along with their sons Rohan and Parvan, all belonging to Gurgaon, booked two villas in Goa which were being constructed by Acron Developers. The villas were booked under two agreements, the first in the name of the parents with one son, and the second in the name of the parents with the other son. The total cost of both the villas was about Rs1.38 crores. Possession was to be given in April 2007.

 

When Malhotras inquired about the progress of the construction, the builder did not furnish this information, and instead threatened to terminate the agreements for non-payment of instalments. The builder also collected various additional amounts. Malhotras filed a complaint before the Goa State Commission against the developer and its directors for a refund of the wrongly collected amounts. The builder contested the complaint.

 

The State Commission concluded that the villas were meant that they were purchased for commercial purpose. It also observed that there were two agreements in different names, so one combined complaint could not be filed for two separate transactions. It dismissed the complaint, and ordered Malhotras to pay Rs.10,000 for misusing the provisions of the Consumer Protection Act.


Malhotras challenged this order in appeal. The National Commission observed that commercial purpose would have to be determined on the basis of the primary motive of trading or business activity for the purpose of making profit. Mere assertion by the builder that the properties have been purchased for commercial purpose is not sufficient. The National Commission also observed that two villas were purchased by the parents, one for each son. Even if a residential house, flat, or villa is let out, it would not amount to commercial purpose. Accordingly, by order dated 5.11.2015 delivered by the Bench of Justice D.K. Jain and M. Shreesha, the National Commission allowed Malhotra’s appeal, held them to be consumers, and remanded the matter back to the State Commission.

 

Link to the full decision:

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FFA%2F1287%2F2014&dtofhearing=2015-11-05

Builder directed to pay interest at the same rate he levied on delayed payment


BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI

                                                   Consumer Complaint No.CC/13/198

Mrs. Shruti Kirti Laddha,

Mr.Kirti Shivchandra Laddha,

Both R/at: 15, Staff Quarters, 2nd Floor, Institute of Chemical Technology, Matunga (E), Mumbai 400 019. …..                                                                                               Complainant(s)

                                         Versus

M/s. G.A. Builders (RNA Corpn. Group Company),

Through its Group Chairman,

Mr.Anil Aggarwal

            and

Managing Director Mr. Anubhav Aggarwal,

Having their office at: RNA Corporation Park, Next to Collector’s Office, Kalanagar, Bandra (E), Mumbai 400 051. ………………….Opponent(s)

 

BEFORE: Hon’ble Mr. Justice A.P. Bhangale, President Hon’ble Mr. Narendra Kawde, Member

For the Complainant: Advocate Mr.Vinay Rathi.

For the Opponent: None.

 

ORDER Per Hon’ble Mr.Narendra Kawde – Member:

(1) Allegations levelled by filing this consumer complaint against the opponent builder developer for failure to deliver vacant and peaceful possession of flat no.1102 on 11th floor, in the project named RNA Sagar, situated at Plot No.57, behind Apna Bazar, Pantnagar, Ghatkopar (East), Mumbai, agreed to have been sold to the complainants for total consideration of Rs.47,15,880/- even though complainants have paid substantial mount of Rs.38,04,488.15. Aggrieved thereby consumer complaint has been filed praying for directions to CC/13/198 2/7 handover legal possession of the Flat and also claimed compensation of Rs.10,00,000/- for mental and physical harassment with costs of Rs.1,00,000/-.

 

(2) It is not in dispute that the complainants have booked flat bearing no.1102 in the project developed by opponent by paying booking amount of Rs.5,00,000/- on 24/12/2009 by cheque bearing no.605889. Subsequently the complainants have paid amount of Rs.17,84,488/- by way of cheque payments which is not in dispute. Thus, the total amount paid by cheque is Rs.22,84,488/- as against the agreed consideration of Rs.47,15,880/-. It is the contention of complainants that amount of Rs.15,20,000/- was paid in cash on 24/12/2009 at the time of issuing the allotment letter. However, opponent did not issue receipt for cash payment alleged to have been paid. According to the complainants even though substantive amount against the agreed consideration is paid and they are willing to pay the balance consideration, yet, for the reasons best known to them, opponents have failed to deliver the possession.

 

(3) Opponents by filing written version tried to defend themselves on the ground that this being a redevelopment project with the co-operative society, the dispute cropped up pertaining to the use of Floor Space Index (‘F.S.I.’ in short) at the behest of co-operative housing society the matter was referred to arbitration and it was decided by the Arbitrator to restrict use of F.S.I. to 2.4 instead of 2.5 as was originally planned. Since it is redevelopment project first preference is for those old occupiers and only surplus flats constructed would have been available for sale. In view of the restrictions for use of F.S.I., construction was limited only to 11th floor instead of 16th floor as originally planned. In view of this CC/13/198 3/7 changed condition opponents are unable to accommodate the complainants to allot flat no.1102 as it was not available for sale. Opponents have always shown their willingness to refund the amount of Rs.22,84,488.15 together with interest @9% per annum under the provisions of Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act (45 of 1963) (hereinafter referred to as ‘MOFA’ in short). However, the complainants have refused to accept the refund and continued to litigate. According to Opponents cost of flat was agreed to Rs.31,95,880/- and not Rs.47,15,880/- as presumed by the complainants. Opponents stoutly denied receipt of cash amount of Rs.15,20,000/- as alleged by the complainants. In view of the developments narrated above the allotment was cancelled and accordingly, complainants were repeatedly informed by e-mails, by letters to take refund of the amount paid as narrated supra.

 

(4) Heard Advocate Mr.Vinay Rathi for the complainant. None appeared for the opponent. We have perused the record and documents relied upon by the parties

 

(5) It is not in dispute that amount of Rs.22,84,488.15 has been received by the opponents. Complainants did not demonstrate the proof of cash payment of Rs.15,20,000/-. The booking form duly signed by the complainants and opponents on 24/12/2009 indicates allotment of flat 1102 with 610 sq.ft. area on 11th floor, RNA Sagar, and also it shows payment schedule attached thereto. However, total agreed consideration is not mentioned therein. It is the contention of the opponents that the total consideration was Rs.31,95,880/-. Even if it is presumed to be correct, in that CC/13/198 4/7 case even substantial amount of Rs.22,84,488.15 was accepted by the opponent in a staggering mode after booking of the flat on 24/12/2009, knowing fully that there are restrictions for use of FSI and the flat in question cannot be allotted to the complainants after accommodating the original flat owners in the redeveloped project. According to the opponents themselves, arbitration Petition 326 of 2011 before the Hon’ble Bombay High Court and the order passed therein on 05/05/2011, restricted use of the F.S.I. Even thereafter also the opposite party continued to accept the balance payment by cheques. Even though complainants have paid substantial amount, opponent failed to execute registered agreement under the provisions of Section 4 of MOFA. Non-compliance of statutory obligation to execute registered Sale Deed, per se, amounts to deficiency of service on the part of the opponents. Since it was within the knowledge of the opponent that issue pertaining to use of F.S.I. was raised and referred to arbitration, at this point of time opponents ought to have made known these developments and their inability to fulfil the obligation to allot flat to the complainants.

 

(6) According to the opponents construction upto 11th floor was permitted with certain modifications. However, there is no approved modified development plan available on record. By their own admission construction could be done upto 11th floors, it would have been possible to accommodate allotment of flat bearing no.1102 as per booking since it was located on 11th floor. There is no reason to cancel the allotment without following the due procedure and moreover, after having accepted substantial amount of more than 80% of the agreed consideration of Rs.31,95,880/-. In case the CC/13/198 5/7 said flat was not available alternate flat ought to have been made available by accepting the balance consideration for which the complainants were ready and willing. Despite submissions on various counts disputing the claim we do not find opponents have made alternative offer of availability of flat of same size to the complainants.

(7) Failure of opponent builder to execute registered agreement and handover vacant and peaceful possession of the flat by accepting balance consideration amounts not only to glaring deficiency of service but it is unfair trade practice as well on their part and therefore, they are liable for their failure as such. At the time of arguments neither Advocate nor opponent were present and therefore, Commission could not obtain present status of the project, i.e. as to how many floors are constructed, how many flats are available etc. There is no record to substantiate that the project has been completed upto 11th floor or otherwise. Accepting the huge sum and mis-utilizing for the long period without appropriating such receipted amount for the project for which it was meant is also a serious issue nothing short of unfair trade practice. Non-fulfillment of contractual and statutory obligations on the part of the opponent is undoubtedly deficiency of service and unfair trade practice under the provisions of Section 2(1)(g) and 2(1)(r) of Consumer Protection Act, 1986.

 

(8) In view of the observations aforesaid, the contractual relations still subsists between the complainants and opponent builder as consumer and service provider under the provisions of Consumer Protection Act, 1986. It is only belatedly, that the opponents tried to refund the amount with interest @9% per annum without valid and justifiable CC/13/198 6/7 reason as the documents do not demonstrate as to how the flat booked on 11th floor and use of F.S.I. was permitted upto 11th floor could not be allotted to the complainants. There is no justification on the part of the opponent for their failure to fulfil the contractual and statutory obligation under the provisions of MOFA by handing over vacant and peaceful possession of the flat in question by accepting the balance consideration of Rs.9,11,391.85/- or to offer alternative flat of the same size in the vicinity in case it is imfeasible to fulfil the obligations.

(9) On perusal of the demand notice dated 21st April, 2010 the opponents have claimed interest @21% per annum for default payment. Therefore, the refund of amount, if any, as claimed shall carry the same rate of default interest as demanded by the opponents with a view to maintain balance of equity.

 

(10) In view of the above, we hold the opponents have resorted to unfair trade practice and indulged in deficiency of service and therefore, complaint is allowed against the opponents with following directions:

 

ORDER

 

(I ) Consumer complaint is allowed with costs quantified to Rs.30,000/- (Rupees Thirty Thousand only) payable jointly and severally by the opponents to the complainants.

 

(ii) The opponents are directed to handover jointly and severally vacant and peaceful possession of Flat bearing No.1102 on 11th floor, in the building RNA Sagar, Building No.1 at Ghatkopar East, Mumbai or CC/13/198 7/7 alternative flat of same size of 610 sq.ft in the same project or in the vicinity by accepting balance consideration of Rs.9,11,391.85/- (Rupees Nine Lacs Eleven Thousand Three Hundred Ninety One and Paise Eighty Five Only) from the complainants within a period of 45 days from the date of this order.

(iii) Complainants to pay Rs.9,11,391.85 (Rupees Nine Lacs Eleven Thousand Three Hundred Ninety One and paise Eighty Five only) to the opponents within 60 days from today. In case Opponents refuse to accept the amount, the complainants are at liberty to deposit the amount with State Commission within eight days from refusal, if any. OR Alternatively at the option of the complainants to refund the amount of Rs.22,84,488/- (Rupees Twenty Two Lacs Eighty Four Thousand Four Hundred Eighty Eight only) together with default interest @21% per annum from the date of each such deposit within a period of 45 days from the date of this order. Non-compliance shall enhance the rate of interest @24% per annum on the amount to be paid till realization.

(iv) One set of complaint compilation be retained for our record and rest of the sets be returned to the complainant.

 Pronounced on 26th September, 2016.
[Justice A.P.Bhangale] President                          [Narendra Kawde] Member

Revisionary Powers of the National Consumer Commission – Section 21 (b) of the Consumer protection Act

 

Builders often drag flat purchasers through a series of litigation to discourage them from approaching courts. National Consumer Commission is discouraging such practice.

 

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. IN this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora.

  

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

     NEW DELHI

 

REVISION PETITION NO.   1566    OF 2010
(From the order dated  30.10.2009   in Appeal No. 728/2009

of the State Commission,  Maharashtra)

 

M/s R.N.A. BUILDERS (NG)

Raja Bahadur Building,

28, Bombay Samachar Marg,

fort, Mumbai-400023.                                                          … Petitioner (s)

Versus

Shri Kalikant Mishra

R/0 F-75, Sagar Kiran,

ONGC Employees CHS Ltd.,

Navghar Road, Bhayander (E),

District Thane-401105.                                            … Respondent (s)

 

For the Petitioner      :        Mohd. Wasay Khan, Advocate      

For the Respondent  :        Mr. Nagaraj V. Hoskeri, Advocate

 

REVISION PETITION NO.   1567    OF 2010
(From the order dated  30.10.2009   in Appeal No. 729/2009

of the State Commission,  Maharashtra)


M/s R.N.A. BUILDERS (NG)

Raja Bahadur Building,

28, Bombay Samachar Marg,

Fort, Mumbai-400023.

Through Mr. Narender Gupta                                … Petitioner (s)

Versus

Shri Sujit Kumar Mishra 

Through his Attorney holder

Kalikant Mishra,

R/0 F-75, Sagar Kiran,

ONGC Employees CHS Ltd.,

Navghar Road, Bhayander (E),

District Thane-401105.                                            … Respondent (s)

 For the Petitioner                :        Mohd. Wasay Khan, Advocate 

 

BEFORE:

 

HON’BLE MR.JUSTICE  V.B. GUPTA, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER
                                                                                                                  

Dated 05th July, 2011

 

ORDER

 

PER JUSTICE MR. V.B. GUPTA, PRESIDING MEMBER

 

          Consumer Disputes Redressal Commission, Mumbai, Maharashtra (For short ‘State Commission’) vide common order dated 30th October, 2009 disposed of two appeals (No. 728 & 729/2009) filed by respondents Kalikant Mishra and Sujit Kumar Mishra as issues involved in these appeals were common and the builder (i.e. petitioner) is also common.

  1. Respondent/Complainant (Kalikant Mishra) filed complaint (No. 390/2007) whereas respondent/complainant (Sujit Kumar Mishra) filed complaint (No. 398/2007) before District Consumer Forum, Thane, for not giving possession of two flats to them.  According to their complainants they had purchased flat no. 401 & 402 on 4th floor in “A” Wing in the building known as ‘NG VIKAS’ and each flat is measuring 379.88 sq. ft. in area.  Cost of flat no. 401 was Rs.8,24,600/-.  Accordingly, agreement for sale was registered on 25-04-2006.  As per complainant, he paid Rs. 5,50,000/- out of Rs.8,24,600/- to the O.P. as part consideration.  Complainant further submits that he approached O.P. and requested for possession of the flat after receipt of balance consideration amount.  However, O.P. failed to hand over the flat to the complainant.

  2. In case of flat no. 402, complainant paid entire amount of Rs.8,24,600/- to the O.P. in full and final settlement of the price.  In spite of having accepted full consideration amount, O.P. failed to hand over possession of flat no. 402 to the complainant. 
  3. Therefore, separate consumer complaints were filed by both
    respondents/complainants alleging deficiency in service on the part of the builder.

  4. O.P./petitioner filed its written statement and denied allegations of the complainants.  It pleaded that cost of flat no. 401 was fixed at Rs.8,24,600/- and cost of flat no. 402 was Rs.7,38,600/- and Rs.86,000/- was fixed by O.P. for providing extra amenities.  Out of Rs.86,000/-, complainant paid only Rs.46,403/- for the extra amenities and failed to pay the balance amount of Rs.46,403/- to the O.P.  it is further pleaded that complainant has not paid entire amount of the flat.  Therefore, possession of the flat was not handed over to the complainant since complainant was facing financial crises and had not paid balance amount to the O.P.  Therefore, there was no deficiency in service on the part of O.P.

  5. After considering documents and affidavits placed before it, District consumer Forum partly allowed the complaints and directed O.P. to refund amount of Rs.5,50,000/- together with interest @ 10% p.a. from 25-04-2006.  It further directed O.P. to pay Rs.7,000/- towards cost and Rs.25,000/- for mental agony in case of flat no. 401, in complaint (no. 398 of 2007).

  6. In case of flat no. 402, in complaint (No. 390 of 2007) District forum directed the O.P. to refund amount of Rs.8,24,600/- together with interest @ 10% p.a. from 05-05-2006.  It further directed O.P. to pay Rs.10,000/- towards cost and Rs.25,000/- for mental agony.

  7. Aggrieved by the order of District Forum, respondents /complainants filed appeals before the State Commission, which vide impugned order, allowed both appeals and ordered that Clause 2 & 3 of the operative part of complaint (No.390/2007) regarding refund of consideration amount be substituted as under:–

“Respondent/Org. O.P. is directed to hand over possession of the flat no. 402 on 4th floor, ‘A’ Wing in the building known as ‘NG VIKAS’ admeasuring 379.88 sq. ft. carpet area to the appellant.”

  1. Similarly, clause Nos. 2 & 3 of the operative part of complaint (No. 398/2007) regarding refund of consideration amount be substituted as under:–

“Respondent/Org. O.P. is directed to hand over possession of the flat no. 401 on 4th floor, ‘A’ Wing in the building known as ‘NG VIKAS’ respondent/Org. O.P. is directed to hand over possession of the flat no. 402 on 4th floor, ‘A’ Wing in the building known as ‘NG VIKAS’ admeasuring 379.88 sq. ft. carpet area to the appellant after accepting balance amount of consideration.

Rest of the order stands confirmed.”

 

  1. It has been argued by learned counsel for the petitioner that respondents have not paid the entire consideration of the flats in question and as such possession cannot be handed over.  Accordingly, there is no deficiency on the part of the petitioner.

  2. It is further argued that Respondents have made alternative prayer in their complaint seeking damages and as such possession of the flats cannot be handed over to them.

  3. On the other hand, it has been argued by learned counsel for respondents that there is no infirmity or legality in the impugned order passed by the State Commission.  Petitioner is bound to hand over the possession of flats to the respondents and respondent in complaint (No. 398/2010) is willing to pay the balance amount of consideration as agreed earlier.

  4. In paras (No. 4 to 7) of both complaints, respondents /complainants have taken specific pleas with regard to the payments made by them during different periods.

  5. In written statement filed by the petitioner, there is no specific denial with regard to the payments made by the respondents /complainants as mentioned in their respective complaint. 
  6. Under these circumstances, as there is no specific denial made by the petitioner, the payments as stated in the complaints shall be deemed to be admitted as correct, except that in complaint (No. 398/2007) respondent in categorical terms has stated that he is always ready and willing to pay the final consideration amount of Rs.2,74,100/- towards the purchase of the flat.  Moreover, there is nothing on record to show that except for the balance consideration amount as admitted by respondent in complaint (No. 398/2007) any other amount is due towards any of the respondents.

  7. State Commission in its impugned order observed:–

          “Perused the record and memo of appeal and we are finding that the order passed by the Forum below in each complaint is erroneous.  Appellant has purchased two flats from Respondent and paid total amount of consideration of Rs.8,24,600/- for flat no. 402 and agreed to pay balance amount of consideration in case of Flat No. 401.  However, O.P. failed to hand over possession of the flat to the complainant.  Forum below awarded refund of consideration amount along with interest @ 10% p.a.  However, appellant has filed present appeals for possession of both the flats as Forum below has awarded only refund of the amount.

 

            We perused copy of complaint, wherein appellant has prayed for possession of both the flats namely flat nos 401 & 402 ‘A’ Wing and ready to pay balance amount of consideration of the flat no. 401.  The real estate prices have been increased tremendously and the complainant/appellant herein will not be able to purchase flat at the same rate, what was prevailing in the year 2006.  Therefore, by allowing both the appeals, we direct the Respondent /org. O.P. to hand over possession of both the flats to the appellants after accepting the balance amount in case of flat no. 401.”

 

  1. Since, it is a case, where purchaser of flat in complaints (No. 390/2007) has paid the entire consideration and purchaser of flat in complaint (No. 398/2007) is ready and willing to pay the balance amount, the petitioner/builder cannot deprive them of their legal right to have possession of both flats.

  2. Petitioner/builder, in the present case “wants to have the cake and eat it too” as in one case, admittedly it has received the entire consideration whereas in other case, certain amount is due, which the purchaser is willing to pay.

  3. Thus, petitioner being the builder, is enjoying possession of both flats as well as substantial amount of considerations paid by the respondents.  On the other hand, both respondents after having paid full amount of consideration in one case and in the other case after having paid substantial amount of consideration, are still without any roof.

  4. In Narsingh Singh through LRs & Ors. Vs. Shanti Devi through LRs & Ors.2010 (115) DRJ 601.  Delhi High Court observed;

          “It is well settled that where two Courts below have given a concurrent findings of facts, this Court under Article 227 of the Constitution of India shall not disturb the findings even if there is some mistake committed in appreciation of some part of evidence.  Under Article 227, this Court does not correct the mistakes of law or mistakes of facts.  The intervention of the this Court under Article 227 has to be only in those exceptional cases where the fora below had either not exercised their jurisdiction or had acted beyond jurisdiction or had ignored the well-settled legal proposition and acted contrary to law.”

 

  1. Supreme Court in Mudigonda Chandra Mouli Sastry vs. Bhimanepalli Bikshalu and others, (AIR 1999 (SC) 3095) observed;

“It was also not open to the High Court in exercise of its revisional jurisdiction to have indulged in a reassessment of evidence and thereby interfered with the finding of the facts recorded by the two Courts below.”

 

  1. Recently, Supreme Court in Rubi (Chandra) Dutta vs. United India Insurance Co. 2011 (3) Scale 654 observed that;

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. IN this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora.

 

  1. Such type of unscrupulous act on the part of petitioner/builder should be dealt with heavy hands who after grabbing the money from the purchasers enjoy and utilize their money but does not hand over the flats, on one pretext or the other.  Petitioner has made respondents run from one Fora to other Fora during last four years so that respondents cannot have any roof over their head and he (petitioner) can go on enjoying respondent’s money without any hindrance. 

 

  1. Since two Fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, in our opinion, the present petition is nothing but gross abuse of the process of law and the same is totally frivolous in nature, which is required to be dismissed with punitive cost of Rs. 1 Lakh (One Lakh).  Accordingly, we dismiss these petitions with cost of Rs. 1 lakh.

  2. Out of this cost, Rs.25,000/- each shall be paid to each of the respondent’s in these two petitions.

  3. Petitioner is directed to deposit the cost by way of cross cheque for a sum of Rs.50,000/- in the name of “Consumer Legal Aid Account” and two cheques in the sum of Rs.25,000/- each in the name of each of the respondents’ within four weeks from today.

  4. In case the costs are not deposited within the prescribed period, the petitioner shall be liable to pay interest @ 9% p.a. till realization. 
  5. The cost awarded to the respondents shall be paid to them only after the expiry of period of appeal or revision preferred, if any.

  6. Accordingly, both the revision petitions stand disposed of.

  7. List for compliance on 12-08-2011.

  Sd/-

……………………………J.

(V.B. GUPTA)

PRESIDING MEMBER

                                                                                                                                                                                        Sd/-

………………………………

(SURESH CHANDRA)

MEMBER

aj

 

Associate Member of Housing Society can be member of Managing Committee

Kalpit Mankikar

| TNN | Feb 2, 2015, 04.44 AM IST

 

MUMBAI:

In many old societies, senior citizens owned flats but would not show interest, and associate members were barred from participating in managing committee proceedings.


Section 2 (19) of the Maharashtra Cooperative Societies Act says an associate member jointly holds a share of the society with others, but whose name is not first in the share certificate. Rule 56M of the Maharashtra Cooperative Societies Rules, 1961, and Section 2 (19) (b) of the Maharashtra Cooperative Societies Act, 1960, state an associate member can vote and participate in elections but cannot become an office-bearer of the society where his name appears as an associate member in the society register. 

 

The state cooperative election authority (SCEA) has clarified that a housing society’s associate members can be part of the managing committee. This will be a shot in the arm for old cooperative housing societies as more residents can participate in their housing complex’s affairs.

 

http://timesofindia.indiatimes.com/city/mumbai/Associate-member-can-be-part-of-managing-panel/articleshow/46090740.cms