State Consumer Disputes Redressal Commission
Mr Shyam Singh vs M/S Jhv Construction Co Pvt Ltd on 14 September, 2015
CC/10/55 & 56 1/8
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint Case No. CC/10/55
MR.SHYAM SINGH,
Through its Constituted Attorney,
Mr.Dindayal T. Chandrus,
Hard Rock Co-op. Housing Society Ltd.,
B-201, Section 7, Kharghar, Navi Mumbai,
Maharashtra. .......Complainant(s)
Complaint Case No. CC/10/56
MR. RAJIV KUMAR
Through its constituted attorney,
Mr.Dindayal T. Chandrus,
Hard Rock Co-op. Housing Society Ltd.,
B-201, Section 7, Kharghar, Navi Mumbai,
Maharashtra. .......Complainant(s)
All Versus
1. M/s.JHV CONSTRUCTION CO. PVT. LTD.,
Shop No.1, Hard Rock Building,
Plot Nos.6 to 10, Sector 7, Kharghar,
Navi Mumbai 410 210, Taluka Panvel,
District Raigad, Maharashtra.
2. MR. HIRALAL JAISWAL - DIRECTOR,
3. ABHISHEK JAISWAL - DIRECTOR,
Shop No.1, Hard Rock Building,
Plot Nos.6 to 10, Sector 7, Kharghar,
Navi Mumbai 410 210, Taluka Panvel,
District Raigad, Maharashtra. ............Opp.Party(s)
BEFORE:
Shashikant A. Kulkarni PRESIDING JUDICIAL MEMBER
Narendra Kawde MEMBER For the Advocate Mr.Anand Patwardhan Complainant:
For the Opp.
Advocate Mr.Suresh Sharma Party:
COMMON ORDER IN CC/10/55 & CC/10/56 Per Mr.Narendra Kawde, Member :-
(1) Both these consumer complaints are disposed of by this common order as there is a common question of fact and law involved and the opponent is one and the same.CC/10/55 & 56 2/8
(2) In Consumer Complaint No.CC/10/55, complainant booked flat no.203, in Hard Rock Building, Situated at Plot No.6-10, Sector 7, Kharghar, Navi Mumbai, admeasuring 1265 sq.ft., in the project developed by the opponent builder developer for total consideration of Rs.27,80,000/- by paying booking amount of Rs.2,78,300/- on 24.09.2006. Opponent issued allotment letter dated 24.09.2006 together with stagewise schedule of payment. Opponent allegedly failed to execute the registered agreement even though advance payment of 10% of the agreed consideration was accepted and consequently failed to deliver the possession within time.
Complainant is N.R.I. and was operating through General Power of Attorney holder to materialise the contractual obligations to purchase the said flat. Having failed to execute agreement, the opponent was issued notices, but, there was no response whatsoever from the opponent builder developer to execute agreement and deliver possession by accepting balance consideration.
(3) In Consumer Complaint No.CC/10/56, complainant booked Flat No.B-202 in Hard Rock Building, Situated at Plot No.6-10, Sector 7, Kharghar, Navi Mumbai, admeasuring 1050 sq.ft., in the project developed by the opponent builder developer for total consideration of Rs.23,10,000/- by paying booking amount of Rs.2,31,300/- on 24.09.2006. Opponents issued allotment letter dated 24.09.2006 together with stagewise schedule of payment. Opponent allegedly failed to execute the registered agreement even though advance payment of 10% of the agreed consideration was accepted and consequently failed to deliver the possession within time. Complainant is N.R.I. and was operating through General Power of Attorney holder to materialise the contractual obligations to purchase the said flat. Having failed to execute agreement, the opponent was issued notices, but, there was no response whatsoever CC/10/55 & 56 3/8 from the opponent builder developer to execute agreement and deliver possession by accepting balance consideration.
(4) Aggrieved by the failure of opponents to discharge the statutory obligation under Maharashtra Ownership of Flats Act, 1963 ('MOFA' in short) consumer complaints have been filed seeking directions to the opponents for execution of agreement and receive the balance consideration and handover the possession of the flat bearing no.203 admeasuring 1265 sq.ft. and B-202 admeasuring 1050 sq.ft, respectively, situated at Hard Rock Building Khargar, Navi Mumbai.
(5) Opponent resisted the claim by filing written version mainly on the following grounds:
(a) While admitting that the allotment letter was issued together with schedule of making stagewise payment, the complainants' failure to observe the payment schedule has been attributed for non-
performance of the contractual obligations by the complainants.
(b) Receipt of advance payment is not in dispute.
(c) Both the complainants are not bonafide purchasers as they are non-resident Indians and invested small amount to purchase the respective flats from the opponent. Therefore, both these complaints are not consumers under the provisions of Consumer Protection Act, 1986.
(d) There is nothing on record as to what arrangement was made by the complainants for making balance payment as agreed upon as per the payment schedule.
CC/10/55 & 56 4/8(e) All the facts and circumstances were explained to the local agent of the complainants as both of them are N.R.I. in respect of their failure to honour the payment schedule.
(f) The specific provision in the allotment letter was brought to the notice of the authorized agent about committing default in payment of any one instalment, the offer letter stood automatically cancelled and 25% of the amount paid by each complainant was to be forfeited, refunding the balance amount.
(g) The said offer after deducting the 25% from the advance amount was not accepted by the authorized agent of the complainant, though it was communicated in writing by letter dated 25.11.2006, thereby informing that the allotment letter was cancelled.
(h) Complainants have no locus to knock door of this Commission as they failed to perform their part under the agreement.
(6) We have heard Mr.A.V. Patwardhan, Ld.Advocate for the complainants and Mr.Suresh Sharma, Ld.Advocate for the opponent and perused the documents relied upon by the parties.
(7) Facts not in dispute are that allotment letter and receipt of 10% of the agreed consideration i.e. Rs.2,78,300/- and Rs.2,31,000/- respectively in both the complaints.
(8) Complainants originally filed consumer complaint no.121 and 122 in 2009 before the District Forum, Raigad. However, for want of pecuniary jurisdiction the complaints were disposed of granting liberty to both the complainants to file the same within a period of thirty days from the date of the order before appropriate Consumer CC/10/55 & 56 5/8 Fora. In compliance of the directions of District Forum both these consumer complaints have been filed well within time.
(9) On careful perusal of the record opponent's letter dated 25.11.2006 cancelling the allotment and booking of the premises though taken as a defence is not available on record. Opponents admit that the transaction is under the provisions of Maharashtra Ownership of Flats Act, 1963. However, Ld.Advocate Mr.Suresh Sharma made no submissions about the Provision of Section 4 of MOFA which provides for execution of registered agreement by the opponent after having received consideration not exceeding 20% of the total consideration. In both the complaints opponent admits to have received the amount to the extent of 10% of the agreed value but failed to execute registered agreement for the best reasons known to them. Non-execution of the registered agreement per se amounts to deficiency of service on the part of the opponents. Moreover, there is no documentary evidence to establish termination of allotment letter as claimed to have been issued by the opponents. At the same time whether progress of work as stipulated in the appendix to the allotment letter was intimated to the complainants as their agent is not on record, though the complainants were more than willing to comply the payment schedule. There is no conclusive evidence adduced by the opponents to support of their contentions.
(10) Both the complainants have sought directions for possessions or alternative possessions of identical size of the flats in the project of the opponent and they have shown their willingness to pay the balance amount against the agreed consideration. In view of this, both the complaints are required to be considered in view of their willingness to settle the balance consideration for seeking possession. Ld.Advocate of Opponents made a statement at Bar that about 80% work of the project is complete. In view of this, we CC/10/55 & 56 6/8 are inclined to allow both the consumer complaints in part as no fault can be attributed to the complainants for performing their part. Hence, we proceed to pass the following order:
ORDER (1) Consumer complaint No.CC/10/55 is partly allowed with direction to the opponents as below:
(i) To handover vacant and peaceful possession of Flat No.203 in Hard Rock Building, admeasuring 1265 sq.ft., Plot No.6-10, Sector 7, Kharghar, Navi Mumbai, to the complainant after accepting the balance consideration of Rs.25,04,700/- (Rupees Twenty Five Lakhs Four Thousand Seven Hundred only) (Rs.27,83,000/- - 2,78,300/-) from the complainant within sixty days from today.
OR Alternatively the opponents are directed to handover vacant and peaceful possession of the flat of identical size in the same locality to the complainant within a period of sixty days from date of payment by accepting Rs.25,04,700/- (Rupees Twenty Five Lakhs Four Thousand Seven Hundred only).
(ii) Complainant is directed to pay balance amount of Rs.25,04,700/- (Rupees Twenty Five Lakhs Four Thousand Seven Hundred only) to the opponents within a period of forty five days from today. In case, opponents refuse to accept the amount, the complainant is directed to deposit the said amount in the office of this State Commission within eight days from date of such refusal.
CC/10/55 & 56 7/8(iii) Opponents are directed to pay Rs.1,00,000/- (Rupees One Lac Only) as compensation to the complainant towards mental harassment and costs of the litigation quantified to Rs.25,000/- (Rupees Twenty Five Thousand only).
(iv) One set of complaint compilation be retained for our record and rest of the files be returned to the complainant.
(2) Consumer complaint No.CC/10/56 is partly allowed with direction to the opponents as below:
(i) To handover vacant and peaceful possession of Flat No.B-202 in Hard Rock Building, admeasuring 1050 sq.ft., Plot No.6-10, Sector 7, Kharghar, Navi Mumbai, to the complainant after accepting the balance consideration of Rs.20,79,000/- (Rupees Twenty Lacs Seventy Nine Thousand only) (Rs.23,10,000/- -
2,31,000/-) from the complainant within sixty days from today.
OR Alternatively the opponents are directed to handover vacant and peaceful possession of the flat of identical size in the same locality to the complainant within a period of sixty days from date of payment by accepting Rs.20,79,000/- (Rupees Twenty Lacs Seventy Nine Thousand only).
(ii) Complainant is directed to pay balance amount of Rs.20,79,000/- (Rupees Twenty Lacs Seventy Nine Thousand only) to the opponents within a period of forty five days from today. In case, opponents refuse to accept the amount, the complainant is directed to deposit the said amount in the office CC/10/55 & 56 8/8 of this State Commission within eight days from date of such refusal.
(iii) Opponents are directed to pay Rs.1,00,000/- (Rupees One Lac Only) as compensation to the complainant towards mental harassment and costs of the litigation quantified to Rs.25,000/- (Rupees Twenty Five Thousand only).
(iv) One set of complaint compilation be retained for our record and rest of the files be returned to the complainant.
Pronounced on 29th September, 2015.
[ Shashikant A. Kulkarni] PRESIDING JUDICIAL MEMBER [ Narendra Kawde] MEMBER ep