1. Builder – Deficiency of service –Builder/developer failed to deliver peaceful possession of property – Compensation on account of mental agony and rate of interest on the payment made was directed to be paid. [Consumer Protection Act, 1986]

Opponent is a builder/developer, entered into registered agreement with the complainant on 13-9-2012 for sale of flat bearing No. 202 in building No. 2 on second floor of the project developed by the opponent named and styled as “N. G. Sterling” for total consideration of
Rs. 49,50,750/-. No date of possession was mentioned in clause 50 of the said registered agreement. Complainant has paid the entire consideration except the amount required to be paid at the time of handing over possession which works out to
Rs. 50,068/-. The opponent failed to deliver peaceful and vacant possession of the subject flat even though opponent were in position to obtain occupation certificate from competent authorities on 12-8-2013. Consumer complaint has been filed praying for handing over possession of the subject flat and claiming monetary relief of
Rs. 30,90,817/- for the deficiency of service on the part of the opponent.

The Hon’ble State Consumers Disputes Redressal Commission observed that after obtaining occupation certificate on 12-5-2013 or immediately thereafter the complainant should have been put into possession as the complainant dutifully complied with the obligations under the stipulation of agreement and was ever ready to pay agreed balance consideration. Thus, complainant discharged his contractual obligations. It is the only opponent who failed to abide and act upon the terms of registered agreement. Instead the opponent put forth the extra demand of
Rs. 2,04,645/- with no justification whatsoever. Therefore, failure on the part of opponent resulted into consumer dispute and the complainant was unnecessarily dragged to knock the doors of the State Commission subjecting to mental agony for his no fault. Therefore, suitable compensation on account of the avoidable delay to hand over the possession would meet the ends of justice. However, in the interest of justice, we are of the considered view that the complainant was entitled to receive the possession by end of September 2014 [2 years from date of agreement], opponent has deprived the complainant by not handing over the same, though received occupation certificate and entire consideration except some balance amount which was required to be paid at the time of possession. Opponent has been using the large sum without complying the contractual obligations. Consumer fora are court of equities, therefore, we are of the view that reasonable rate of interest on the amount paid by the complainant from date of filing of the complaint would meet the ends of justice. In view of the above observation the court directed the builder to hand over vacant and peaceful possession of the flat within 30 days from the payment of balance consideration from the complainant. The opponent was further directed to pay interest @ 9% on the amount of
Rs. 49,00,682/- from the date of filing the complaint within 30 days and payment of
Rs. 1 lakh as cost for the mental agony suffered.

Mehul Jayantilal Gandhi (Mr.) v. RNA Builders (NG) CC No. CC/14/296 dt.1-2-2016 (State Consumer Disputes Redressal Commission, Maharashtra)

2. Builder – Deficiency and negligence in rendering services – Payment made in full to builder – Held complainants have suffered mental pain and agony to obtain their dream house – Builder directed to pay costs and grant peaceful possession of the flat. [Consumer Protection Act, 1986]

Complainant No. 1 is a retired person and complainant No. 2 is residing at abroad. Hence, she has given power of attorney to her mother. The opponent – M/s. Superior Builder is a builder & developer doing construction work at different places. The complainants had agreed to purchase Row House No. 1 in the building Friends Co-op. Hsg. Society Ltd., Airoli, Navi Mumbai, admeasuring for total consideration of
Rs. 20 lakhs on or about 18-2-1996. The complainants have paid total amount of
Rs. 20,00,001/- to the opponents. The opponents/developers agreed to deliver possession of the premises on or before 31-12-1997. The opponents failed to hand over possession of the premises within stipulated time. The opponents have given reasons that due to dispute between the other flat owners and the builders in respect of payment terms and other issues, the work of the said society building had been stopped. On inquiry opponents gave assurances and informed that problem would be sorted out shortly.

Complainants filed an complaint and demanded vacant and peaceful possession of the premises from the opponents or in the alternate it was requested to return of the amount to the complainants as per prevailing market rate with interest @18% p.a. Notices were given to the opponents but of no use. It is alleged that the complainants have suffered loss due to opponents/builder. Opponents are guilty of malpractices, delay, defect, deficiency and negligence in rendering services of handing over possession of the premises to the complainant. Ultimately, complainants have filed present complaint and claimed possession of subject Row House.

The material question which is touching to the route of this consumer complaint is, whether the opponents are guilty of deficiency in service.

The Hon’ble State Consumers Disputes Redressal Commission observed that full amount of consideration as mentioned in agreement executed on 1-4-1996 was accepted by the opponents. No explanation by the opponents as to why the excess amount was received from the complainants. The opponents failed to follow the terms and conditions of the lawful agreement executed in favour of the complainants. They raised several difficulties before the complainants for not handing over the possession. As per agreement the complainants were required to receive possession from the opponents on 31-12-1997. The opponents failed to give lawful possession of Row House to the complainants in spite of receipt of huge consideration. Delay in handing over possession itself is a deficiency in service. The complainants have waited for their dreamed house since 1996 till today. Without any base the opponents have raised the defence that agreement of sale is terminated by sending notice which was served to the opponents after filing of the complaint. The cheque sent along with the notice was useless. The complainants have duly proved deficiency in service on the part of the opponents while rendering the services to the complainants. It was held that the complainants have suffered mental pain and agony. They have booked Row House in the year 1996 and waited for possession. Ultimately they are forced to file the consumer complaint. Therefore, it was directed that the complainants are entitled for amount of
Rs. 5,00,000/- towards compensation due to mental pain, agony and financial loss. They were required to issue notice and to appoint lawyer to file litigation. They are entitled for amount of
Rs. 1,00,000/- towards costs of litigation.

C.V. Subramaniyen & Ashwin Subramaniyen v. Superior Builders CC.No. /12/311/dt. 27-1-2016 (State Consumer Disputes Redrerssal Commission , Maharashtra)

3. Document – Execution – Burden of proof – Section 67 says that unless execution of document is proved, document cannot be admitted in evidence [Evidence Act, 1872]

When document is lost and even its copy is not available, in that case also, the evidence on execution of document need to be given. Defence that original document itself was forged, it become necessary of party relying on the document to prove the execution of document. It is only after proof of execution, the party making allegation of forgery need to prove forgery.

Kashinath Yadeo Hiwarde v. Osman Baig Sandu Baig. AIR 2016 (NOC) 266 (Bom.)](HC)

4. Jurisdiction of Court – Custody of minor children – Petition by legal guardian, mother – Place of her residence as on date presentation of petition – Is place where it has to be construed as the minors ordinarily resided

The solitary test for determining the jurisdiction of the court under S. 9 in respect of application of custody of children is the “ordinary residence” of the children. The expression used is “Where the minor ordinarily resides”. Whether minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may be, at best, a mixed question of law and facts are admitted, it can never be a pure question of law, capable of being answered without
an enquiry into the factual aspects of the controversy.

Thus where the minors were shown to be born at ‘H’ and they were residing at ‘H’ with their mother as it would be her place of residence at the time of filing application.

Rama (Smt. )) and Ors v. Sharadha (Smt ). [AIR 2016 (NOC) 295 (Kar.)](HC

5. Stamp duty – Payable on instrument – Is to be quantified with reference to date on which instrument was signed

For the purpose of quantifying the stamp duty payable on the instrument it is the date on which the instrument was signed. However, the question or issue, as to whether the document is appropriately stamped will arise for consideration only when it is sought to be relied upon and is available to be executed.

Dilli Babu v. State of Karnataka and Anr. AIR 2016 (NOC) 223 (Kar.) (HC).

6. Will – Challenge – Limitation of three years starts from date author of Will expires [Limitation Act, 1963]

Will is a legal declaration of the intention of the testatrix with respect to her property and take effect after her death. A Will is a voluntary posthumous disposition of property.

In the instant case, the author of the Will, the mother, had expired on 18th January, 2003. The right to sue begins to run from 18th January, 2003 and period of limitation is three years. The suit filed on 12th November, 2003, was held to be filed within the period of limitation.

Munawar Begum (Smt.) v. Asif Ali and others. AIR 2016 (NOC) 259 (Cal.) (HC)]

7. Will – Registration – Will cannot be held to be duly proved merely on ground that same was registered. [Registration Act, 1908]

Certified copy of the Will is produced in evidence. No explanation given for non production of original Will. Attesting witness could not tell as to whether Will was written by testator or got typed by him. No reasons mentioned in Will by testator as to why other natural legal heirs were excluded from inheritance. Testator not having good reasons with beneficiary since he has misused power of attorney executed by testator in his favour. Execution of Will surrounded by suspicious circumstances. Will cannot be held to be duly proved merely on ground that same was registered.

Jai Singh v. Pavitra Devi and Ors. AIR 2016 (NOC) 276 (P&H)(HC)

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