state consumer forum has power to issue order flat possession
Querist :
Anonymous
(Querist) 29 April 2011
This query is : Resolved
Dear Sirs,
I have consumer case against a builder at the state forum. My case is in the hearing stage now. My advocate informed me that, he recently found that consumer court has limited power and may not give the order to builder for flat possession. The court only can order builder to pay compensation relief for delay, mental agony, fraud, etc.
My advocate advice me to file a suit at the district civil court under 'specific performance Act', if I wish court to issue flat possession order to the O.P.
Now, I am confused what to do in this regard.
Actually I am fine even if builder do not give me possession. In this case court has to order the O.P. to be obliged to give me 18% interest compensation for delay, including rental expenses, etc until handover the said flat to me. I am okay with this. I believe, O.P. will always choose to handover flat at the earliest rather than give me hefty compensation as per my claim.
Dear sirs, please give me your expert advice in this regard.
Thanks.
Raj Kumar Makkad
(Expert) 29 April 2011
I ratify views and opinion of your counsel.
Devajyoti Barman
(Expert) 29 April 2011
If you have paid the full consideration amount then the consumer forum is bound to give an order to execute the deed of sale and to put you in possession of the same.
R.Ramachandran
(Expert) 29 April 2011
Dear Mr. Tom,
Are you satisfied that even when the Consumer Forum has only limited power to order compensation/damages for deficiency of service, still it can order the builder to 'hand over possession' (assuming that the buyer has paid full consideration to the builder towards the property)?
Guest
(Expert) 30 April 2011
When you are fine even if builder do not give me possession and you want only the compensation, that is well within the powers of the forum.
Advocate. Arunagiri
(Expert) 30 April 2011
The consumer forum is having all such powers to order for "handing over the possession of the immovable property" to the consumer and order for compensation for the delay in handing over.
Querist :
Anonymous
(Querist) 30 April 2011
Dear Sirs,
Thanks a lot for your valuable comments.
For your info. I have paid builder 98 percent of consideration value in the sale deed. I have submitted all the reciept during filing case appln. With this, can the state forum in its power order the O.P. for flat possession?
If so, I do not find need to file separate suit in district civil court under 'specific performance Act'. Also , it may takes years to deleiver judgement there. Conversely, consumer court is fast track judgement delivery.
Pl advice further.
thanks
Querist :
Anonymous
(Querist) 03 May 2011
Dear Sir,
Mixed repsonses above from the expert counsels has created bit of confusion to me. My question is 'is it absolutely needed to file 'suit' to the civil court to get the poseession of flat order?'
My lawyer claim that, when this matter was on board, during that time one similar matter called out whereby Hon'ble State commission stated that...'Consumer court is not giving directions for possession of flat. It does not fall jurisdiction upon which counsel in respect of said matter argued that we also sought damages for non delivery of flat. Upon which court stated that 'yes' we can considered prayer for damages but we are not sitting here to give direction for possession of flat.
My lawyer says that, 'i am also advising you to file suit for Specific Performance' at Senior Division, district Court if you need flat possession'
Expert counsel please advice me definitely, if this is the only way to get flat possession from o.p.? Secondly it will take much longer time to get the judgement in civil court. Isn't it?
Thanks in advance for your advice.
Advocate. Arunagiri
(Expert) 03 May 2011
See S.14 b) of the CP Act.
The Consumer forum is having the power to order to replace the goods with new goods......
This section clearly shows that the consumer courts are having powers to order for delivery of the goods (interpretation: the goods includes the property also)
I have live case. A consumer case was filed against the builder for handing over the possession of the building. While the case was pending the builder handed over the property. The Forum had passed the orders that as the possession was already given, no further orders is needed. Please note the Consumer forum had not ruled that the Forum is not having such powers.
My suggestion is, please file the consumer case and see the result.
Querist :
Anonymous
(Querist) 03 May 2011
Dear Arunagiri Sir. Thanks for your valuable input. Section 14(b) is for replacing the goods(property). If I want the same flat (and not the replacement flat) does it contradict with the stated Act?
There is one more section 14(e) to remove the defects in goods or deficiencies in the services in question.
Does this Act apply more appropriately to the order of flat possession?
Any other expert counsel's comment ?
Thanks
Advocate. Arunagiri
(Expert) 03 May 2011
Dear Anonymous,
I have quoted that section just to say that the Consumer Forum is having the power to order for possession.
1994 AIR 787, 1994 SCC (1) 243
You can go through this decision. It deals with the order of the State Forum's order
"The appellant was further directed to hand over possession of the flat without delay after completing construction work up to June 1990. The Commission further directed that if it was not possible for the appellant to complete the construction then it should hand over possession of the flat to the respondent by April 5, 1990 after determining the deficiencies and the estimated cost of such deficient construction shall be refunded to the respondent latest by April 20, 1990."
Advocate. Arunagiri
(Expert) 03 May 2011
The Pune District Consumer Disputes Redressal Forum has penalised a builder for delay in handing over the possession of flats to 27 buyers at the Wonder Futura housing project (phase-II) on Pune-Bangalore Highway. The forum has also directed the builder to repay Rs4 lakh along with 9% interest per annum taken from one of the buyers.
A three-member bench of the forum, in its order on June 6, directed the owners of Bharati Developers, Manoj Agarwal and Satish Mittal, to pay a compensation of Rs7,000 per month to each of the 27 aggrieved buyers with effect from July 1, 2007 or from the date of agreement till they are actually given the possession.
The forum, however, directed the buyers to clear their dues to the developer by July 31. In case, the party refuses to accept the payment, the buyers would have to deposit the amount with the forum before August 13. If they failed to comply with the orders, the forum's conditional order will be vacated.
The consumer court has asked the builders to give possession of the flats to the buyers by August 15 with the promised amenities.
The buyers had moved the forum following a three-year delay in getting their flats. They had formed the Wonder Futura Residents' Association after the builder failed to respond to their repeated pleas. The builder was supposed to hand over the flats in June 2007.
Advocate. Arunagiri
(Expert) 03 May 2011
Developer asked to hand over possession of flat
The UT Consumer Dispute Redressal Forum recently ordered a developer, Uppals Marbel Arch, to hand over the possession of a flat to an NRI couple within three months, besides paying a compensation of Rs 1 lakh for mental agony and litigation cost of Rs 7,000.
In this case, since Uppals failed to execute the agreement even after being paid the entire amount, the developer was guilty of not fulfilling the statutory provisions prescribed under the Act. The forum also held the developer guilty of deficiency in service as he failed to hand over the possession of the flat to the buyer within the prescribed time of receiving the amount.
Dr Pritpal Singh and his wife Rajinder Kaur, residents of USA, had paid Rs 11.20 lakh as registration fee for booking a four-bedroom flat in Uppals Marbel Arch in Mani Majra in April 2006. A buyer’s agreement was executed in November 2006 in which the developer agreed to sell them same flat in block C, apartment No C-14, first floor having an area of 2450sq ft at Rs 5,490 per sq ft.
In an advertisement, it was clearly mentioned to deliver the possession of the flat by the end of year 2008. Later, Uppal intimated the complainants through an email that they had applied for the completion certificate and possession would be delivered as the same was received. While the SDO (building) denied giving the completion certificate as there were number of discrepancies in the construction of the building, stated complainants in their complaint.
In its reply, the developer stated that they never committed to deliver the possession on any specific date. The respondents pleaded that the construction work was completed in March 2009 but the possession could not be delivered because non-issuance of the completion certificate by the UT administration.
The forum comprising president Lakshman Sharma and members Ashok raj Bhandari and Madhu Mutneja stated that as the complainants paid the entire sale consideration in January 2007, they could not be allowed to wait for an unlimited period for the possession. In such circumstances, non-delivery of possession within a reasonable time amounts to deficiency in service on the part of developers.
Advocate. Arunagiri
(Expert) 03 May 2011
A "landmark judgment" delivered recently by a State Commission has ensured redress for a harassed Matunga couple. The Maharashtra State Consumer Disputes Redressal Commission has directed Khar-based Monish Builders to pay Arti and Vikas Modi Rs 7.86 lakh as damages and hand over possession of the Chunabhatti flat they had bought in 2006.
Querist :
Anonymous
(Querist) 04 May 2011
Thanks a lot again to Adv Mr Arunagiri for detail posting of few cases.
I also could able to get few more records of similar kind on the internet search.
Now I understand that consu court has vested power to punish including to order to builder for flat possession.
Since, my other query as below is still unanswered by the learned counsels, I would appreciate some response to it.
[ Is there still any merit to file a suit at the district court under 'specific performance Act', to get an order of flat possession order?. Otherhand I worry that suit filing will be time consuming and expensive.]
Thanks and Regards.
Advocate. Arunagiri
(Expert) 04 May 2011
If you could get the similar order details in the internet, why you are approaching us?
If you know these order details earlier, why are asking this question?
Coming to the point:-
Civil court is also having the power to grant relief under specific performance Act.
When the consumer court can give a speedy disposal, it is up to to you to choose the consumer court or Civil Court.
Do you want citations for comparison of civil courts power and consumer courts power?
I am ready to help you, if you are not able to get the similar citations in the internet.
Querist :
Anonymous
(Querist) 04 May 2011
Dear Arunagiri Sir.
I think you misunderstood my comment. After reading your citations of May 3rd, I also searched on internet for some other cases, if any involving consumer court orders for flat possession. And incidently I found couple of cases but those are different from your citations. Anyway, I am really thankful to you fro your help. I hope u won't have hard feeling for me any more.
As offered by you, I humbly request you to help me once again on other querry.
Many Thanks.
