State Consumer Disputes Redressal Commission
Shri Dinesh Sharma & Ors. vs Shri Atul M Nadar on 23 July, 2013
A-724-725-2011
BEFORE
THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
MAHARASHTRA, MUMBAI
First
Appeal No. A/11/724
(Arisen
out of Order Dated 18/02/2011 in Case No. 80/2011 of District Additional
DCF, Mumbai(Suburban))
1. SHRI DINESH SHARMA
109 BHARAT INDUSTRIAL ESTATE,
BHANDUP WEST MUMBAI 400078
MAHARASHTRA
2. SHRI M. D. SHARMA
109 BHARAT INDUSTRIAL ESTATE
BHANDUP WEST MUMBAI 400078
MAHARASHTRA
3. SHRI VINOD SHARMA
109 BHARAT INDUSTRIAL ESTATE
BHANDUP WEST MUMBAI 400078
MAHARASHTRA
4. M/S SHARMA REALTY PVT LTD
109 BHARAT INDUSTRIAL ESTATE
BHANDUP WEST MUMBAI 400078
MAHARASHTRA
...........Appellant(s)
Versus
1. SHRI ATUL M NADAR
ROOM NO 56 CHANDANWADI
VILLAGE ROAD BHANDUP WEST
MUMBAI 400078
MAHARASHTRA
...........Respondent(s)
First
Appeal No. A/11/725
(Arisen
out of Order Dated 19/06/2011 in Case No. Complaint Case No. CC/11/79 of
District Additional DCF, Mumbai(Suburban))
1. SHRI DINESH SHARMA
109 BHARAT INDUSTRIAL ESTATE
BHANDUP WEST MUMBAI 400078
MAHARASHTRA
2. SHRI M. D. SHARMA
109 BHARAT INDUSTRIAL ESTATE
BHANDUP WEST MUMBAI 400078
MAHARASHTRA
3. SHRI VINOD SHARMA
109 BHARAT INDUSTRIAL ESTATE
BHANDUP WEST MUMBAI 400078
MAHARASHTRA
4. M/S SHARMA REALTY PVT LTD
109 BHARAT INDUSTRIAL ESTATE
BHANDUP WEST MUMBAI 400078
MUMBAI
MAHARASHTRA
...........Appellant(s)
Versus
1. SMT PRAMILA KRISHNA KUMAR
A/105 DEEP JYOTI HOUSING
SOCIETY
NEAR SHAHAD RAILWAY STATION
SHAHAD WEST KALYAN 421 103
THANE
MAHARASHTRA
...........Respondent(s)
BEFORE:
HON'ABLE MR. Dhanraj Khamatkar
PRESIDING MEMBER
HON'ABLE MR. Narendra Kawde MEMBER PRESENT:
Mr.Deval Anja, proxy for Mr.Uday Warunjikar, Advocate for the Appellants Mr.U.B. Wavikar, Advocate for the Respondent.
O R D E R Per Mr.Dhanraj Khamatkar Honble Presiding Member:
1. These appeals take an exception to an order passed by the District Forum dated 18.02.2011 in Consumer Complaint Nos.80/2011 and 79/2011.
2. Facts leading to this appeal can be summarized as under:
In Appeal No.724/2011 (Consumer Complaint No.80/2011) the original Complainant had booked Flat no.501 in A wing admeasuring 555 sq.ft. for `15,40,625/-. The original Complainant had paid an amount of `2,80,969/-
between 30.05.2003 to 09.10.2005. In addition to this, the Complainant contended that he has paid an amount of `3,00,000/- in cash. Further, it is stated by the Respondent/Complainant that possession was to be handed over within a period of 18 months. Subsequently, the Appellant/Opponent had asked Respondent/Complainant that since the rates of the building material were increased he would have to pay `1,875/- per sq.ft. as against `1,550/-
per sq.ft., agreed earlier and Respondent/Complainant accepted the proposal given by the Appellant/Opponent. As the Appellant/Opponent failed to handover the possession of the said flat alleging deficiency in service on the part of the Appellant/Opponent, the Respondent/Complainant had filed consumer complaint praying that the Appellant/Opponent be directed to execute an agreement, to direct the Appellants/Opponents to pay house rent of `5,000/-
per month from January, 2003 onwards and the costs of `25,000/-.
3. In appeal No.725/2011 (original Complaint No.79/2011) the original Complainant had booked the flat to be constructed by the appellant/opponent in A wing, Flat No.205 admeasuring 780 sq.ft. @`1550 sq.ft. for a total consideration of `12,09,200/-. The Complainant had paid an amount of `2,27,504/- on 25.05.2003 to 03.12.2005. Apart from this, the Respondent/Complainant had paid an amount of `5,00,000/- in cash. According to the Respondent/Complainant the possession of the flat was to be handed over within eighteen months. It is further stated by the Complainant that the Opponent had increased rate per sq. ft. from `1550/- per sq.ft. to `1,840/- per sq.ft. and as there was no other alternative to the Respondent/Complainant he had accepted the same. As the Appellant/Opponent failed to handover the possession of the flat, the Respondent/Complainant had filed consumer complaint praying therein that the Appellant/Opponent be directed to execute an agreement and be directed to pay him house rent which he has to pay at the rate of `5,000/-
w.e.f. January, 2005 and costs of `25,000/-.
4. The Opponents had contested the complaint by filing written version contending therein that the Opponents have entered into a development agreement with the original land owner i.e. M/s.Khandelwal Hermann Electronics Private Limited. The development agreement was registered on 01.11.2004 and after registration of the development agreement they had started booking of the flat. The Appellant/Opponents further contended that they have got the commencement certificate in respect of the F Wing.
However, the original land owner M/s.Khandelwal Hermann Electronics Private Limited, issued a notice to the Appellants/Opponents through Advocate dated 12.10.2007 cancelling the development agreement and the power of attorney in favour of the Opponents and hence, they could not start the construction. The Appellants/Opponents further contended that they have informed to the Complainant about this fact and the Appellants/Opponents were ready to refund the amount paid by the Respondent/Complainant. The Appellants/Opponents further contended that the reasons for non-construction of the flat is beyond their control and hence, there is no deficiency in service on their part.
5. After filing the written version in both the complaints, the Respondents/Complainants have filed rejoinder contending therein that if the Opponents are ready to pay the amount paid by the Complainant the same may please be paid by prevailing market rate which is `6,000/-
per sq.ft. in the area where the land involved in the complaint is situated.
6. The District Forum after going through the complaint, written version filed by the Opponents and rejoinder filed by the Complainant, evidence filed by both the parties on affidavits and the pleadings of advocate of the parties came to the conclusion that there is deficiency in service on the part of the Opponents and partly allowed the complaint directing the Opponents in Appeal No.724/2011 to pay an amount of `8,99,100/- within a period of one month, failing which the amount will carry an interest @9% per annum and costs of `5,000/-
and in Appeal No.725/2011 the amount of `10,67,976/- was directed to be paid within a period of one month, failing which the amount will carry interest @9% per annum and costs of `5,000/-. Aggrieved by the said order, the original Opponents have filed these two separate appeals.
7. As there is common point of law involved in both the appeals, the Appeals are being disposed of by this common order.
8. We heard, advocate Mr.Deval Anja, proxy for Mr.Uday Warunjikar, Advocate for the Appellants and Mr.U.B. Wavikar, Advocate for the Respondent.
9. We have gone through the orders passed by the District Forum. Admittedly, the Respondents in both the appeals have booked a flat and paid an amount of `2,80,969/- and `2,27,504/- respectively and the Appellants have admitted this fact. It is the contention of the Appellants that there is no deficiency in service on their part. They further contended that the Opponents have entered into development agreement on 27.05.2003 with the land owner and the Development agreement was registered on 01.11.2004. They also contended that they have obtained commencement certificate of F Wing, however, the original land owner i.e. M/s.Khandelwal Hermann Electronics Private Limited had sent notice dated 12.10.2007, cancelling development agreement and the power of attorney given to the Opponents.
10. It is clear from the record that the Appellants have accepted the amount of consideration from the Respondents from 25.05.2003 to 03.12.2005. It becomes clear that since the execution of development agreement i.e. dated 27.05.2003 till receiving notice of the cancellation of the development agreement i.e. 12.10.2007, the Appellants have not made any efforts to start and complete the construction. In the appeal, the Ld. Counsel for the Appellants argued that as the reasons for non-construction of the flat are beyond their control as per Section 8 of the Maharashtra Ownership of Flats Act, 1963 (MOFA in short) Respondents are entitled for refund of the amount paid by them with interest @9% per annum. It is on record that the Appellants have filed a writ petition no.566/2010 in High Court against the land owner and in appeal it is stated that a notice of motion taken out by the Opponents was rejected by the High Court and the said order is challenged by the Opponents before the Divisional Bench of the High Court.
However, there is nothing on record that the Opponents have informed the same to the Respondents. As against this, the Respondents had filed an Affidavit stating therein that on the same piece of land the Appellants have started accepting the booking and the Respondents had produced a copy of the advertisement in newspaper along with an affidavit. In the Writ Petition the High Court has observed that there is no evidence to show that the original land owner will interfere with the possession of the Appellants of the said land. This proves that the alibi taken by the Opponent for not constructing the building is not correct. Similarly, from the advertisement filed by the Respondent it is clear that the Appellants are doing booking of the flats. While arriving at the market price the District Forum has taken into consideration the location of the land and the prevailing market price of the land in the area. Not only this while awarding the market price the District Forum had taken into consideration the amount paid by the Respondents and accordingly awarded the market price in proportion the Respondents had made the payment.
11. In short, the Respondent had booked a flat in the year 2003 and made the payment of consideration of amount upto 03.12.2005. The Appellants had entered into development agreement with the original land owner of the land on 27.05.2003 and subsequently with the Registrar on 01.11.2004. So, from 27.05.2003 till the date of receiving the notice by the Appellants of the land owner terminating the development agreement dated 12.10.2007, the Appellants have not made any effort for construction further. Even Respondent paid an amount more than 20% of the total consideration, they have not executed the agreement with the Respondents. This is a clear-cut deficiency in service on the part of the Appellants and the District Forum after taking into consideration the facts of the case and the evidence produced by the Respondents arrived at the right conclusion. In the case of Veena Khanna Vs. Ansal Properties and Industries Ltd. and Others ~ II-(2007)-CPJ-185-(NC), wherein the Honble National Commission observed that Consumer Fora are not governed by adversary system procedure but, it is to hold inquisitional proceedings (inquiry). In view of the observations of the Honble National Commission, we are of the view that the order passed by the District Forum does not suffer from illegality or irregularity and we do not find any substance or merit in the appeal filed by the Appellants/Opponents. We hold accordingly and pass the following order:
ORDER
(i) Appeal Nos. A/11/724 and A/11/725 stand dismissed.
(ii) Impugned orders passed by the District Forum are hereby confirmed.
(iii) Appellants/original Opponents are directed to bear their own costs and pay costs of `25,000/- to the Respondent/original Complainant in each appeal.
(iv) Inform the parties accordingly.
Pronounced on 23rd July, 2013 [HON'ABLE MR. Dhanraj Khamatkar] PRESIDING MEMBER [HON'ABLE MR. Narendra Kawde] MEMBER ep