State Consumer Disputes Redressal Commission
Mr.Wilson Lobo And Mr.Stephen Lobo vs M/S.Disha Direct Marketing Services ... on 8 April, 2021
CC/19/80 1
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO.CC/19/80
Mr.Wilson Lobo
Mr.Stephen Lobo
Both r/at : 203, Vithai Apartment,
Diva Nagar, Sector-09, Plot No.F33/3,
Airoli, Navi Mumbai 400 708. ...........Complainant(s)
Versus
1] M/s.Disha Direct Marketing Services
Private Limited,
Office at : 609, First Tower,
Lodha Suprimax, Near Passport Office,
Wagle Estate no.22, Thane West,
Through its Director,
Mr.Santosh Pandurang Naik,
2] M/s.Bairav Realty,
Address at : K.J.Group, 7,
Zainab Hospital, Ground Floor,
Near Byculla Post Office, Byculla East,
Mumbai 400 027
Through its Director, Mr.Kishor Jain. ............Opponent(s)
BEFORE:
Hon'ble Dr.S.K.Kakade, Presiding Member
For the Complainant:
Adv.Poonam Makhijani
For the Opponent/s: None
ORAL ORDER
Per Hon'ble Dr.S.K.Kakade, Presiding Member
[1] Complainants have filed this consumer complaint against opponent for getting physical & legal possession of flat along with other reliefs.
[2] Brief facts of the case are as under:-
Complainants booked flat no.302 with the aggregate area
admeasuring 675 sq.ft.s (carpet) in the building no.8 in the project known as "CIDA DE VIDA" on the plot bearing no.Survey No.294 & 296 situated CC/19/80 2 at Village Kavir, Taluka Alibaug, Dist.Raigad with opponent for total consideration of Rs.22,90,701/-. At the time of booking, opponent agreed to hand over the flat to complainant within a period of 18 months. Complainants paid an amount of Rs.11,52,360/- to opponent no.1 on different dates. Opponent no.1 confirmed booking of the flat vide booking form dated 30/07/2012 and executed agreement dated 13/02/2013 in favour of complainants. Thereafter, all of sudden, opponent stopped construction work. On follow up by complainant no.1, no update was given by the opponent no.1. In the month of July 2014, by undated letter, opponent no.1 informed that construction work will be resumed by end of July 2014, failed to do so. On 24/02/2016, opponent no.1, by email, informed that project will be relaunched and completed by March 2017. On 24/08/2016, opponent no.1 informed by email that brick work will be commenced followed by another email dated 02/09/2016. However, on visiting the site, the complainant no.1 found that the construction work was at stand still and was same as three years before. Complainant visited office of the opponent no.1, but no update was provided. Being left no option, complainant and other flat buyers moved a written complaint dated 06/12/2016 to the Commissioner of Police, Thane. After several round of discussion, opponent no.1 offered alternate flat of identical description bearing no.A/A-101, in Building by name "Amber" admeasuring 716 sq.ft. in the project "Bay Castle" Village Nehuli, Tal.Alibaug, Dist.Raigad to be constructed by the opponent no.2 and to confirm the transaction issued letter dated 15/03/2017 confirming the payment of Rs.10,55,560 and stamp duty of Rs.96,800/- will be paid to opponent no.2 and same will be adjusted against the alternate flat to be allotted by opponent no.2. At assurance of opponent no.1, complainant issued a cheque of Rs.51,000/- to opponent no.2. Receipt dated 15/03/2017 of which is issued. Although complainants paid this much amount of sale consideration in respect of flat to opponents, opponents failed to complete construction work and to hand over possession of the flat to complainants. Complainants are ready and willing to pay balance amount of sale consideration to opponents. Hence, complainant has filed this consumer complaint against opponent for getting possession of flat no.302 or A/A-101 from opponents after executing agreement in respect of that flat in their favour. Alternatively, complainants have claimed that CC/19/80 3 if opponent no.1 is not in a position to give possession of flat to them, opponent no.1 be directed to refund Rs.12,03,360/- to them along with interest on that amount along with costs and compensation.
[3] Along with complaint, complainants have filed on record copies of brochure, booking form dated 30/07/2012, payment schedule, payment receipts, agreement dated 13/02/2013, communication between the parties etc. [4] After admission of the consumer complaint, notice of consumer complaint was issued to opponent by publishing the same in newspaper. However, no one appeared for opponent to contest the consumer complaint. In view of the same by passing order on 17/06/2019, this Commission directed to proceed the consumer complaint without written statements against opponents. Thereafter, complainants filed their evidence on record along with documents in their favour.
[5] On perusal of documents filed on record, it has become clear that complainant booked flat no.302 with the aggregate area admeasuring 675 sq.ft.s (carpet) in the building no.8 in the project known as "CIDA DE VIDA" on the plot bearing no.Survey No.294 & 296 situated at Village Kavir, Taluka Alibaug, Dist.Raigad with opponent for total consideration of Rs.22,90,701/-. At the time of booking of flat, opponent agreed to hand over the flat to complainant within 18 months. From documents filed on record, it has become clear that complainant paid amount of Rs.11,52,360/- to opponent no.1 in respect of these flat no.302 on different dates. Thereafter, opponent issued execution agreement dated 13/02/2013 in respect of this flat in favour of complainant. Copy of execution agreement and receipts in respect of payment are filed on record. Although complainants had paid this much amount to opponent no.1, opponents failed to hand over possession of the flat bearing no.302 in favour of complainants till filing of this consumer complaint. Subsequently, opponent no.1 on 15/03/2017 offered alternation flat no.A/A-101 to be constructed by the opponent no.2 adjusting entire amount paid to him against this transaction. Letter to that effect was issued and same is on record. However, opponent no.2 also did not start the construction and did not hand over possession of the flat to the CC/19/80 4 complainant. Considering submission, it has become clear that either of opponents have not completed construction work and handed over possession of the flat in dispute to complainants which amounts to deficiency in service and unfair trade practice adopted by the opponents. Since, in the consumer complaint, complainant has stated that he is ready and willing to pay balance consideration for possession of the flat, he is entitled to get vacant, peaceful and legal possession of the flat no.302 or A/A-101 from opponent along with costs and compensation along with occupation certificate after completion of construction work with internal and external amenities as mentioned in agreement.
[6] So also, the complainants have has claimed interest @24% p.a. on the amounts paid to the opponent on account of delayed possession. From the documents filed on record, it has also become clear that complainant is yet deprived from possession of the flat after payment of Rs.12,03,360/-. Hence, complainant is entitled to receive interest @12% p.a. on the said amount from 13/02/2013 till it is realization.
[7] Alternatively, complainant has claimed refund of amount paid to the opponent i.e.Rs.12,03,360/- along with interest @24% p.a. from the date of payment i.e.13/02/2013 till its realization. Since the complainants have proved deficiency in service rendered by the opponents, complainants are alternatively entitled to get refund of amount paid to the opponent with interest.
[8] Complainants have claimed compensation of Rs.5,00,000/- on account of mental harassment suffered by them. It is clear that in the year 2013, the complainants have booked the flat with opponent and paid Rs.12,03,360/-. However, the complainants could not get possession of the flat from either of the opponents. They required to knock the doors of this Commission because of act and inaction of the opponents and hence it is clear that they have suffered mental agony. Hence, the complainants are entitled for some compensation. We find that amount of Rs.2,00,000/- on that count is very reasonable. Hence, I proceed to pass the following order.
ORDER CC/19/80 5
1. Consumer complaint is hereby partly allowed subject to costs of Rs.25,000/- to be paid by opponent to complainant.
1. Opponent no.1 is directed to hand over vacant, peaceful and legal possession of the flat no.302 with the aggregate area admeasuring 675 sq.ft.s (carpet) in the building no.8 in the project known as "CIDA DE VIDA" on the plot bearing no.Survey No.294 & 296 situated at Village Kavir, Taluka Alibaug, Dist.Raigad to complainants on receipt of balance amount of consideration, if any, within a period of 6 (six) months from passing of this order.
OR Opponent no.1 and 2 are jointly or severally directed to hand over vacant, peaceful and legal possession of the flat no.A/A- 101, in Building by name "Amber" admeasuring 716 sq.ft. in the project "Bay Castle" Village Nehuli, Tal.Alibaug, Dist.Raigad to complainants on receipt of balance amount of consideration, if any, within a period of 6 (six) months from passing of this order.
2. Opponent no.1 is directed to pay interest @12% p.a. on the amount of Rs.12,03,360/- received from complainants from the date of receipt of said amount i.e.13/02/2013 till actual possession of the flat.
OR Alternatively, opponent no.1 and 2 are jointly and severally are directed to refund the amount received from complainants i.e.Rs.12,03,360/- (Rs.Twelve Lacs Three Thousand Three Hundred Sixty only) along with interest @12% p.a. from 13/02/2013 till its realization to complainants within two months from the date of this order.
3. Opponents are jointly and severally are further directed to pay compensation of Rs.2,00,000/- (Rs.Two Lacs only) to complainant/s for mental paid and agony.
CC/19/80 64. Amount of costs and compensation be paid by opponents to complainant/s within a period of one month from passing of this order, otherwise the amounts will carry interest @18% p.a.from the date of passing of this order till realization of the amount by complainant/s.
5. Certified copies of the order be furnished to the parties forthwith.
Pronounced on 08th April, 2021.
[ Dr.S.K.Kakade ] PRESIDING MEMBER pg