State Consumer Disputes Redressal Commission
Mr. Khemchand S Chawla vs M/S M L Developers on 18 July, 2019
CC/16/1059 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO.CC/16/1059
Mr.Khemchand S. Chawla
R/at : 10 B, Cenced Apartment,
Plot No.318, Pali Hill Road, 1st Union Park,
Khar West, Mumbai 400 052. ....Complainants.
Versus
M/s. M.L.Developer
Regd.Office at : 282,
Kalbadevi Road, Mumbai 400 002
And
Takli Upnagar Road, Behind Gandhinagar,
Off Nashik Pune Road, Nashik 422 101. .... Opponent.
BEFORE: Mr.D.R.Shirasao, Presiding Judicial Member.
A.K.Zade, Member
PRESENT:
Adv.D.S.Joshi for the complainant
Adv.S.B.Prabhawalkar for the opponent
ORDER
Per Hon'ble Mr.D.R.Shirasao, Judicial Member:\
[1] Complainant has filed this consumer complaint for getting direction against opponent for revocation of agreement of sale in respect of flat or in alternative, for getting compensation from opponent along with other reliefs.
[2] Brief facts of the case are as under:-
Complainant had booked a flat bearing no.701 in Wing C of 'B' Building, admeasuring carpet area 1210 sq.ft. on 7th floor in Project Ozone situated at Takli Upnagar Road, Behind Gandhinagar off.Nashik Road, Nashik for total consideration of Rs.33,15,400/-. Complainant had paid an amount of Rs.3,31,540/- to opponent towards booking amount on 11/10/2010. Opponent issued receipt about the same in favour of complainant. Opponent had issued CC/16/1059 2 allotment letter in respect of flat no.701 in favour of complainant on 12/11/2010. Complainant had paid total amount of Rs.30,62,980/- to opponent on different dates. Opponent had acknowledged the payment made by complainant and issued receipts in favour of complainant. However, on 18/09/2011, opponent informed complainant by issuing letter that as per approved plan by municipal corporation, the flat allotted to him is flat no.702 instead of flat no.701. Thereafter, opponent executed agreement of sale in respect of flat no.702 in favour of complainant on 30/12/2014. At that time, complainant learnt that fraud has been committed on him by executing agreement in respect of flat no.702 instead of flat no. 701 which was given to him as per allotment letter. It is the contention of the complainant that opponent has neither given possession of the flat no.701 nor of flat no.702 to complainant. Hence, complainant has filed this consumer complaint for getting direction against opponent for revocation of agreement of sale in respect of flat no.702 and execution of agreement in respect of flat no.701. In alternative, he claimed compensation of Rs.5,00,000/- from opponent. Complainant has further claimed interest on deposited amount with opponent along with costs and compensation.
[3] Opponent contested the consumer complaint by filing their written version on record. They submitted that in respect of change in number of flat, letter was given to the complainant on 18/09/2011. On that date, complainant learnt about change in flat. However, since then, he had not filed consumer complaint within two years and has filed the same on 17/10/2016. The same is beyond limitation. Complainant has not filed any application for condonation of delay of 860 days along with consumer complaint. Hence, consumer complaint is not tenable.
[4] They further submitted that at the time of issuance of allotment letter to complainant, inadvertently flat no.701 was mentioned. Said mistake was also repeated while issuing receipts to complainant. This mistake had also taken place in respect of other flat purchasers CC/16/1059 3 on the same floor. Consequently, opponent learnt that flat shown to complainant and allotted to him was not flat no.701 but it was flat no.702. Hence, opponent informed this fact to the complainant on 18/09/2011 by giving letter to complainant. Complainant also accepted the same and executed agreement in respect of flat no.702. Complainant had not given any notice about the same before filing the consumer complaint. All other flat purchasers had also accepted the mistake and executed the agreements in respect of purchase of their respective flats. Hence, they submitted that at the time of execution of agreement, no fraud was played on complainant. This Commission has no jurisdiction to decide the complaint. Complainant had not taken any objection, hence he is estopped from claiming revocation of agreement or from claiming compensation for the same. Hence, they submitted that as they have not given deficiency in service to complainant, complaint be dismissed.
[5] Considering rival contentions of parties, evidence adduced by them and documents filed on record, following points arise for our determination and we have recorded our findings on them as follows for the reason given below -
Sr.No Points Answer
.
1 Whether complainant is "Consumer" of Yes
opponent ?
2 Whether opponent has given deficiency in Yes
service to Complainant ?
3 Whether complainants are entitled to get As per final
order in respect of revocation of order.
agreement or for getting compensation ?
4 What order? As per final
order.
CC/16/1059 4
-: REASONS :-
POINT NO.I :- [CONSUMER]
[6] In this case, it is admitted fact that complainant had booked
flat with opponent. Complainant had paid part of the amount of
consideration. In this case, admittedly, opponent had given allotment letter in respect of flat no.701 to complainant. Opponent has also issued receipts in respect of that flat in favour of complainant. However, subsequently agreement was executed by opponent with complainant in respect of flat no.702. Further, payment made by complainant was accepted by opponent for flat no.702. It is the contention of complainant that although flat no.701 was allotted to him. Opponent played fraud on him and executed agreement in respect of flat no.702 in his favour. Opponent has neither given possession of flat no.701 nor of flat no.702 to complainant. Hence, complainant has filed this consumer complaint against opponent. We are of the opinion that considering all these facts, it is clear that complainant is consumer of opponent and complaint filed by complainant is tenable. Hence, we answer Point No.I in affirmative.
POINT NO.II & III :- [DEFICIENCY, REVOCATION, COMPENSATION] [7] In this case, it is admitted fact that opponent had issued
allotment letter in respect of flat no.701 in favour of complainant on 11/10/2010. Opponent also received sale consideration for flat no.701 and he issued receipt in that respect in favour of complainant for flat no.701. However, on 18/09/2011, opponent informed complainant by giving letter that as per sanctioned plan, flat allotted to him is flat no.702 instead flat no.701. Thereafter, opponent executed agreement in favour of complainant on 30/12/2014. It was in respect of flat no.702. Complainant has neither received possession of flat no.701 nor of flat no.702 from opponent. Hence, complainant has filed this consumer complaint.
CC/16/1059 5[8] Learned advocate appearing for opponent has mainly contested consumer complaint on the ground that although opponent informed complainant on 18/09/2011 about change in flat, complainant has not file consumer complaint in respect of the same with a period of two years from receipt of that letter. Complainant has filed this consumer complaint in the month of October 2016 and same is beyond limitation. Hence, the same is not tenable. However contention of the learned advocate for opponent in this respect cannot be accepted. Although, complainant had received letter about change in number of flat on 18/09/2011, agreement was executed on 30/12/2014. On 30/12/2014, when agreement was executed by opponent in favour of complainant in respect of flat no.702, he realized that fraud has been played upon him and instead of flat no.701 agreement of flat no.702 is executed in his favour. Since then, consumer complaint is within limitation. Moreover, complainant has claimed revocation of agreement for flat no.702. Complainant has neither received possession of flat no.701 nor of flat no.702. In view of the same, complaint filed by complainant is within limitation.
[9] In this case, it is an admitted fact that opponent informed complainant on 18/09/2011 that flat allotted to him is flat no.702 in favour of complainant. Since 18/09/2011 till execution of agreement, complainant has not taken any objection in that respect with opponent. Complainant has also not taken objection at the time of execution of agreement on 30/12/2014. Hence, contention of complainant cannot be accepted that by executing agreement in respect of flat no.702 in favour of complainant, opponent has played fraud on complainant. Moreover, in that respect complainant had not given report against opponent in Police Station. We are of the opinion that the fact of playing fraud by opponent on complainant also cannot be considered and decided by this Commission. For that purpose, complainant will have to take recourse before the appropriate Forum. Hence, contention of complainant cannot be accepted that opponent CC/16/1059 6 has played fraud on him by executing agreement in respect of flat no.702 instead of flat no.701.
[10] In this case, it is an admitted fact that opponent has executed agreement with complainant in respect of flat no.702. Amount paid by complainant in respect of flat no.701 was adjusted by opponent towards consideration of flat no.702. Complainant has not made any claim in respect of flat no.702 in this complaint. Hence, as per agreement executed by opponent in favour of complainant in respect of flat no.702, complainant is entitled to get possession of flat no.702 from opponent. When opponent had executed agreement in respect of flat no.702 in favour of complainant, at that time, opponent must have executed agreement in respect of flat no.701 also with any other purchaser. There is no evidence on record that till today flat no.701 is available for sale. If opponent had already executed agreement in respect of flat no.701 in favour of other person and accepted consideration for that flat form other person, then he cannot be compelled to revoke agreement executed in respect of flat no.702. In this case, it is the contention of complainant that as no evidence has been adduced in respect of flat no.701 by opponent, opponent be directed to revoke agreement of flat no.702 and execute the same in respect of flat no.701. However, for reasons mentioned above, revocation of agreement executed is not possible in respect of flat no.702 as there is no evidence on record that flat no.701 is still available for allotment to complainant. However, in this case, it is an admitted fact that opponent had given allotment letter to complainant in respect of flat no.701 and also received part of the amount for flat no.701 by issuing receipts in favour of complainant. However, at the time of execution of agreement, flat no. is changed from flat no.701 to flat no.702. This is only due to mistake of opponent and opponent has admitted the same in their written version. Opponent had made this mistake in allotment letter issued to complainant and receipts issued in favour of complainant. At that time, opponent should have verified sanctioned plan. Thereafter, opponent should have issued CC/16/1059 7 allotment letter to complainant. We are of the opinion that inconvenience is caused to complainant only because of opponent and for that complainant is entitled to get compensation of Rs.1 lac from opponent. Hence, we answer Point No.II and III accordingly and proceed to pass the following order.
ORDER
1) Consumer complaint is hereby partly allowed.
2) Opponent is hereby directed to pay compensation of Rs.1 lac along with costs of Rs.10,000/- for this litigation to complainant within a period of two months from passing of this order.
3) Amount of compensation and costs, if not paid within stipulated period, same shall carry interest @12% p.a. from the date of passing order till realization of amount by complainant.
4) Free certified copies be furnished to the parties forthwith.
Pronounced on 18th July, 2019.
[D.R. Shirasao] Presiding Judicial Member [A.K.Zade] Member pg