State Consumer Disputes Redressal Commission
Anshu Murarka And Anr vs M/S.Enkay Castle Through Its ... on 26 September, 2024
1 [CC/2019/783]
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MUMBAI, MAHARASHTRA
Consumer Complaint No. CC/19/783
Date of filing : 21/09/2019
Date of disposal : 26/09/2024
1. Anshu Murarka and Anr.
2. Sanjay Kumar Murarka,
Currently Residing at:
Flat No.701, Building No.2,
Neel Sankal, Sector - 11, Kalamboli,
Navi Mumbai - 410 218. ..... Complainants
Versus
M/s. Enkay Castle through its
Through the Sole Proprietor
Mr. N.K. Bhupeshbabu
Having Office at:
5th Floor, Real Tech Park,
Plot No.39/2, Sector 30A,
Vashi, Navi Mumbai - 400 703. ......Opposite Party
BEFORE
Mr. Mukesh V. Sharma, Presiding Member
Dr. Satish A. Munde, Member
APPEARNACE :
For the Complainants : Adv. Aditya Kharkar i/b Adv. Dr. U. Warunjikar.
For the Opposite Parties : None
JUDGMENT
(Dated 26/09/2024)
Per: Hon'ble Dr. Satish A. Munde, Presiding Member
[1] The Complainants have filed present complaint under Section 18 of the Consumer Protection Act, 1986.
The brief facts of the consumer complaint are as follows:
[2] The Complainants stated that they had booked one flat No. 201 (No.9), on
2 [CC/2019/783] 2nd Floor, Building No.8, "Balsam" in the said project of Opposite Party for a total agreed consideration of Rs.16,59,800/-. Accordingly, an agreement dated 30/11/2011 was executed and registered at Sr. No. PVL2/10540/2011 wherein the Opposite Party has promised to deliver peaceful, vacant and lawful possession of the said flat within two years from the date of agreement, i.e. on or before 01/12/2013. The said flat was booked by Complainants on the basis of the representation made by Opposite Party in his brochure. The Complainants have paid the entire consideration of the said flat to the extent of Rs.16,59,800/- as and when demanded by Opposite Party and Complainants have extra paid development charges of Rs.77,200/- to the Opposite Party. The Complainants submitted that much against the promised date of 01/12/2013, the Opposite Party delivered to Complainants mere physical possession of the said flat that too without electricity supply and regular water supply from concerned Municipal Body. The Opposite Party had merely handed over the keys to the said flat, without giving any opportunity to inspect the same.
[3] The Complainants stated that there were leakages in the bedroom and kitchen area alongwith damp patches in the hall. On several times the Opposite Party had telephonically informed to Complainants that the Opposite Party will issue the Occupancy Certificate within period of three months but till date, the Opposite Party has not received Occupancy Certificate for the said flat. While giving the keys for the said flat, the Opposite Party had assured the Complainants that the flat is complete in all respects and practically forced the Complainants to sign one printed document titled "Possession Receipt and Undertaking". The Complainants had signed the said document under the threat of termination of said agreement and as such the Complainants have not signed the said documents dated 07/12/2015 out of free consent and accordingly the recitals in the said document are not binding upon the Complainants. The Complainants were allowed to inspect the said flat only after accepting the keys thereof and then the Complainants immediately pointed out the incomplete work to the personnel of Opposite Party, 3 [CC/2019/783] whereupon the Opposite Party promised the Complainants to complete the incomplete work within three months. However, the Opposite Party miserably failed and neglected to complete the incomplete work even on expiry of the period of three months. The Opposite Party has miserably failed and neglected to complete the incomplete work, till date. It is submitted that, even today, the Opposite Party has not provided electricity supply to the said flat, the Opposite Party has not obtained regular water supply from concerned municipal authority. Furthermore, even the construction of most of the Building No.8 "Balsam" is incomplete. Moreover, the Opposite Party has not obtained Occupancy Certificate for the said flat.
[4] The Complainants stated that apart from above, without finishing the construction of the said flat, the Opposite Party has demanded and collected from Complainants an amount of Rs.9,264/- towards maintenance charges. The said money was paid by Complainants through cheque. Whereas, the Opposite Party is not entitled to receive any money from the Complainants towards maintenance of the said flat as the Opposite Party has not even completed construction of the said flat, till date. Moreover, in furtherance of the said unlawful act, the Opposite Party has demanded further money towards maintenance through the letters.
[5] The Complainants stated that mere physical possession of the said flat given by the Opposite Party is meaningless. The Opposite Party has miserably failed and neglected to deliver peaceful, vacant and lawful possession of the said flat as contemplated under MOFA.
[6] Accordingly, the Complainants had addressed a letter to the Opposite Party on 28/10/2014, 21/10/2015, 30/07/2016 and 06/01/2017 stating that his grievance in detail and claiming appropriate compensation from the Opposite Party. The Opposite Party has not replied the same.
[7] The Complainants stated that the said agreement stipulates an interest at the rate of 18% p.a. in case of delay on the part of Complainants in paying money as 4 [CC/2019/783] per the said agreement. Accordingly, even the Complainants are entitled to receive interest at the rate of 18% p.a. on all the amounts paid by Complainants from Opposite Party.
[8] The Complainants stated that that by letter dated 02/03/2016 and 27/06/2016 addressed by the Opposite Party to the Complainants for amenities which are required to be given to the Complainants in future and same is not given at the time of handing over possession as per agreement.
[9] The Complainants stated that Opposite Party has raised maintenance charges bills without giving the possession as agreed under Registered Agreement for Sale and not providing the amenities thereof. The Complainants stated that Complainants have taken photograph of the said flat in question and other amenities which is agreed to be given to the Complainants as per registered agreement for sale was not given like left, water connection, electricity etc. [10] The Complainants stated that due to incomplete work in said flat, the Complainants have required to hire flat on leave and license basis from 08/07/2018 to 07/06/2019 of 11 months on Rs.8,000/- p.m. [11] Being aggrieved by the complete inaction and breach of statutory obligations on the part of Opposite Party, the Complainants have filed the present complaint before this State Commission.
[12] The Opposite Party has acted in complete breach of his statutory obligations and furthermore the last communication by the way of e-mail was received by Complainants wherein the Opposite Party has accepted and admitted the defects and deficiencies on their part. Accordingly, the present complaint is filed within period of limitation as per the Consumer Protection Act, 1986.
[13] The Complainants prayed for issuing directions to the Opposite Party to deliver the lawful possession with Occupancy Certificate and complete in all respect of the disputed flat or Alternatively, Opposite Party to refund the entire 5 [CC/2019/783] consideration of Rs.16,59,800/- alongwith development charges, VAT, Service Tax etc. @ 21% interest per annum from 01/04/2011 till realization, to provide electricity supply and separate electricity meter for the flat No. 201; pay to the Complainants money equivalent to interest @ 18% p.a. on Rs.16,59,800/- from 01/12/2013 till the date of lawful possession of the said flat ; to pay compensation for physical and mental agony of Rs.10,00,000/- and Rs.2,00,000/- towards legal and incidental expenditure etc. [14] So as to support the claim, the Complainants adduced on record the affidavit, statement of claim, copy of agreement dated 30/11/2011, copy of the brochure published by Opposite Party, copies of receipts issued by Opposite Party for payments and receipts of development charges, copy of maintenance letter, copy of photographs, copy of leave and license and other relevant documents. The list of documents is at page No. C-3.
[15] The complaint was admitted. Notice was issued to the Opposite Party. The Opposite Party is appeared and contested the Complaint. The Opposite Party stated that the Complaint filed by the Complainants are barred by law of limitation and hence, it is not tenable in the eyes of law, as the Complainants have failed to file an application for delay condonation. The Opposite Party stated that they have handed over the possession of the flat to the Complainants and the Complainants have taken the possession of the said flat on 07/12/2015. The Complainants have taken over the possession of the flat after the detailed inspection of the flat, the Complainants had signed the possession letter and undertaking at the time of taking possession of the said flat.
[16] The Opposite Party stated that they have completed the project within stipulated time period as agreed and mentioned in the agreement executed between the parties on 30/11/2011, therefore, no deficiency in service caused by the Opposite Party. The Opposite Party stated that the members including Complainants of the Enkay Garden failed to pay the development charges to the Opposite Party. They were informed through letter dated 02/03/2016.
6 [CC/2019/783] [17] The Opposite Party stated that they have made application to the CIDCO for seeking permission to development. In response to the application the CIDCO had directed to make the payment of total Rs.6,51,03,000/- through letter dated 29/11/2017, under various heads of the compounding development charges. The development charges arisen due to change in the Government Policies. Therefore, it cannot be said that the Opposite Party has made deficient services to the Complainants. The Opposite Party is taking follow ups for Occupancy Certificate. When the flat was given to the Complainants at that time flat was in good condition but the Complainants themselves refused to take the possession of the flat without any reason. Therefore, due to lack of the maintenance of the flat, the flat is in poor condition for which the Complainants themselves are responsible. The Complainants failed to pay development and maintenance charges. Though the charges were not paid by all other members of the Enkay Garden, the Opposite Party carried out all the development of the project. Currently more than 300 families are residing in „Balsam‟ Building No.8 in Enkay Garden. The possession of the flat was given to the Complainants and hence, the Complainants are liable to pay the maintenance.
[18] The Opposite Party stated that they have provided all the basic amenities to the customers / Complainants as promised. As far as the supply of electricity is concerned, there is a separate electricity meter for flat No. 201. The Complainants approached with the mala-fide intention to make unlawful gains. Hence, the present complaint be dismissed with costs and direct the Complainants to make payment of outstanding maintenance. So as to support the contentions of the Opposite Party, the Opposite Party adduced the documents on record, such as copy of reply from CIDCO Authority as to seeking permission for the development dated 29/11/2017 and receipt of Mahavitaran dated 22/09/2015.
[19] Perused the complaint, written version of the Opposite Party, evidence affidavit of the Complainants, written notes of argument of the Complainants, the complaint proceeded without evidence of Opposite Party and other relevant 7 [CC/2019/783] documents filed by them on record. Heard Advocate for the Complainant. The following points arise for our determination and we have recorded our findings for the reason given below: -
Sr. No. POINTS FOR DETERMINAION FINDINGS
1 Whether the Complaint is barred by law of No
Limitation?
2 Whether the Opposite Party has committed a Yes
deficiency in service to the Complainants?
3 What order? As per the final
order.
Record shows that the Complainants are consumer of the Opposite Party and we deal with the above points with our reasoning as below.
REASONING As to the Point No. 1- " Complaint is barred by law of Limitation" :
[20] The Opposite Party stated that the Complaint filed by the Complainants are barred by law of limitation and hence, it is not tenable in the eyes of law, as the Complainants have failed to file an application for delay condonation.
[21] Perused the record it shows that the date of possession of the disputed flat was on 01/12/2013. The Opposite Party has handed over mere possession of the disputed flat on 07/12/2015 but not in legal, peaceful and in complete sense. Hence, cause of action is continuous. As such, complaint is well within limitation. Therefore, the complaint is not barred by the law of limitation. Thus, we answer this issue in the negative.
As to the Point No. 2 - "deficiency in service" :
[22] We have heard advocate for complainant. Perused the record. The Complainants have proved that the Complainants have booked the disputed flat with the Opposite Party, for total consideration of Rs. 16,59,800/-. The
8 [CC/2019/783] Complainants have paid the amount of Rs. 16,59,800/-to the Opposite Party towards consideration of the disputed flat. Further, the Complainants have paid development charges of Rs.77,200/- to the Opposite Party. The agreed date of handing over the possession of the disputed flat was on 01/12/2013. But the Opposite Party has delivered mere and defective possession of the disputed flat to the Complainants on 07/12/2015 without giving all agreed amenities in the agreement and without Occupation Certificate for the disputed flat.
[23] The Complainants averred their contentions in the complaint and reiterated the same in his evidence affidavit. The Opposite Party appeared and filed a written version but failed to file affidavit of evidence. Hence, the contentions of the Opposite Party without an affidavit of evidence cannot be considered. Hence, the evidence and contentions / averments made by the Complainants have gone unchallenged. As such, the Complainants have proved their claim/s / contentions. In our opinion, this much of evidence is enough for this Commission to hold that the Opposite Party is guilty of deficiency in service to the Complainants. Hence, we answer this point in the affirmative.
As to the Point No. 3 - :
[24] In view of our findings as to the point No.2 in the affirmative, it has become clear that the Opposite Party is guilty of deficiency in service and unfair trade practice to the Complainants.
[25] The Complainants have made several prayers, some of them are granted and others are rejected. The Complainants prayed for issuing directions to the Opposite Party to deliver the possession of the disputed flat legal and peaceful and complete in all respects or Alternatively, Opposite Party to refund the entire consideration of Rs.16,59,800/- alongwith development charges, VAT, Service Tax etc. @ 21% interest per annum from 01/04/2011 till realization; direct to Opposite Party to pay to the Complainants money equivalent to interest @ 18% p.a. on Rs.16,59,800/- from 01/12/2013 till the date of lawful possession of the said flat.
9 [CC/2019/783] [26] Keeping in mind, the facts and circumstances of the consumer complaint, evidence on record. Furthermore, the Opposite Party failed to file affidavit of evidence. Hence, there is no updated status of the said project before us. The value of the similar flat in the same locality might have been escalated by the time. As such, it would be just and proper in the interest of justice to direct the Opposite Parties to hand over the possession of the disputed flat along with all amenities and complete in all respect and interest @ 7 % per annum towards delayed possession or alternatively, at the option of Complainants, refund of Rs.17,37,000/- along with interest @ 15% per annum from the date of respective payments.
[27] Further, it is prayed for Rs. 10,00,000/- towards compensation for mental and physical harassment and cost of litigation of Rs. 2,00,000/-. The disputed transaction took place in the month of November, 2011. The Complainants have paid total agreed consideration of the disputed flat to the Opposite Party. Now, we are in the month of September, 2024, till today, the Opposite Party neither handed over the possession of the disputed flat legal, peaceful and complete in all respects nor refunded the paid consideration to the Complainants. As such, it would be just and proper in the interest of justice to direct the Opposite Party to pay to the Complainants Rs. 2,00,000/- towards compensation for physical and mental harassment and Rs. 50,000/- towards the cost of litigation.
ORDER
1. The Consumer Complaint No.CC/19/783 is hereby partly allowed.
2. The Opposite Party is directed to handover to the Complainants peaceful, vacant, and legal possession and complete in all respects, of the flat No. 201, 2nd Floor, in the building No. 8, named "Balsam" in the project of Opposite Party named "Enkay Gardens".
3. The Opposite Party is directed to pay to the Complainants interest @ 7% p.a. on the amount of Rs.17,46,264/- towards the delayed 10 [CC/2019/783] possession since 01/12/2013 till handing over legal, peaceful, vacant and complete in all respects the possession of the disputed flat.
4. Alternatively, at the option of Complainants, the Opposite Party is directed to refund of (Rs.16,59,800/- + Rs.77,200/-) i.e. Rs.17,37,000/- (Rs. Seventeen Lakhs Thirty-Seven Thousand Only) to the Complainants alongwith interest @ 15% p.a. from the date of respective payment till realisation of the said amount. On receiving refund of entire amount of consideration along with interest from the Opposite Party, the Complainants are directed to handover keys of the flat to the Opposite Party and both parties are directed to get the registered agreement cancelled.
5. The Opposite Party is also directed to pay compensation of Rs.2,00,000/- (Rs. Two Lakhs Only) towards mental agony, harassment and Rs.50,000/- (Rs. Fifty Thousand only) towards costs of litigation to the Complainants.
6. The Opposite Party is directed to comply with the aforesaid order within 45 days from the date of this order.
7. Statutory and legal charges, if any, be paid by the Opposite Party from the compensation granted to the Complainant and balance amount of compensation, if any, be paid to the Complainant.
8. The Copy of this order be sent to both the parties free of costs.
[Mukesh V. Sharma] Presiding Member [Dr. Satish A. Munde] Member SAM / aj 11 [CC/2019/783]