State Consumer Disputes Redressal Commission
Mr. Himesh Bhalchandra Bhange vs Teirth Developers And Suyojit ... on 30 September, 2024
1 [TEIRTH DEVELOPERS]
THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL BEFORE
COMMISSION, MAHARASHTRA, MUMBAI
MR. PRAMOD SURESH PATIL
Residing at C/o. Dolly PradeepBhootda,
B-407, Vishal Shrusti, Sainath Nagar,
Wadgaon Sheri, Pune-411 014 ....COMPLANANT IN CC/13/500
MR. KUSHAL KUMAR VYAS
Residing at Flat no.7,Medhavi Housing
Soc., Suvarnbaug Colony, Kothrud,
Pune-411 052. ... COMPLANANT IN CC/13/501
MR. RAHUL VAMAN KOLTE
Through his Power of Attorney Holder
Abhijeet Vaman Kolte
Residing at Flat No. B-62,
Viola Near, Cipla Foundation,
Mumbai-Bangalore Highway,
Warje, Pune-411 029 ... COMPLANANT IN CC/13/505
1. MR. HARESH MURLIDHACHIMANPURE
2. MS. MADHURI HARESH CHIMANPURE
Both residing at Flat No.404, Venkatesh- ll,
Shivalaya society, Pashan-Sus Road,
Pune-411 021 ... COMPLANANTS IN CC/13/506
MR.BHAGWAT DASHARATH ROKADE
Residing at A-10, Sunshine Residency,
Swami Vivkanand Nagar,
New Sangavi, Pune - 411 027. ... COMPLANANT IN CC/13/508
MR. RAJESH N SHINDE
Residing at: B-36, Mont Vert-2,
SR. No. 128/2A/1, Pashan Sus Road,
Dist: Pune. Pin: 411021. ... COMPLANANT IN CC/13/509
MR. MANOJ JOHN
Residing at Flat No. B 403, Rolling Hills,
Baner-Pashan Link Road,
Pune - 411 028 ... COMPLANANT IN CC/13/510
MR.ASHISH MANOHAR GONDKAR
R/At C-1008, Ruturanga Apartment,
Behind Paranjape Scheme, Kothrud,
Pune-411 038 ... COMPLANANT IN CC/13/511
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2 [TEIRTH DEVELOPERS]
MR.HIMANSHU BHALCHANDRA BHANGE
Residing at Flat No.16, Prachi Residency.
Baner Road, Pune - 411 045. ... COMPLANANT IN CC/13/512
MR.PRASANNA KUMAR
Residing at E-401, Mont Vert Tropez.
Wakad, Pune - 411 057. ... COMPLANANT IN CC/13/513
MR. PRIYANK JAIN
Residing at Flat No. A/202, Swojas Anand,
Anand Park, Aundh, Pune - 411 007. ... COMPLANANT IN CC/13/514
MR. AVINASH ZUTSHI
Residing at H-104, Nikash Lawns,
Pashan Sus Road, Pune - 411 021. ... COMPLANANT IN CC/13/515
MRS. SURABHI ABHIJEET KOLTE
MR. ABHIJEET VAMAN KOLTE
Both Residing at Flat No. B-62,
Viola Near, Cipla Foundation,
Mumbai-Bangalore Highway,
Warje, Pune-411 029 ... COMPLANANTS IN CC/13/517
MR. AMIT MUKUND PATIL
Residing at: "Deep" Bungalow, Nr. Janta
Vidyalay, Mahadevnagar, Islampur,
Tal: Walwa, Dist: Sangli. Pin: 415409 ... COMPLANANT IN CC/13/518
MR. BALKRISHNA P GODBOLE
Residing at: 140,1Gopal Deep Heights,
Mitha Ghar Road, Mulund (East),
Mumbai, Dist: Mumbai. Pin: 400081 ... COMPLANANT IN CC/13/519
MR. GANESH RAJMAL PALLERLA
MRS. POONAM GANESH PALLERLA
Both resident at Markandey Soc., Salisbury Park,
Gultekdi, Pune - 411 037 ... COMPLANANTS IN CC/13/520
MR. TUSHAR M BHANDARKAR
Residing at: 6-B, Shantadurga,
Abhinav nagar, Borivali (East),
Dist: Mumbai Pin: 400066. ... COMPLANANT IN CC/13/522
MR. SANDEEP WAGH
Residing at: C/O Satish Wagh,
B801, Vatika, Behind Oravi. On Lane
Near MITCON, Balewadi,
Dist: Pune Pin: 411045. ... COMPLANANT IN CC/13/523
3 [TEIRTH DEVELOPERS]
Versus
1. TEIRTH DEVELOPERS AND
SUYOJIT INFRASTRUCTURE LTD.
A joint venture having its office at
Teerth Realities, Office No. 102, 1st Floor,
Sai empire, Near ICICI Bank, Baner road,
Baner Pune -411 045,
2. SHRI. VIJAY TUKARAM RAUNDAL
Proprietor of sole proprietary concern
Teirth Developers
Residing at Row House No. F3,
Shreenath Hermitage, Pashan,
Pune - 411 008
3. SUYOJIT INFRASTRUCTURE LTD.
A Company incorporated under the
Company's Act, 1956
having its Office at
F-1/2, Suyojit Heights, Opp. Rajiv Gandhi
Bhavan, Sharanpur Road, Nashik ...OPPONENTS IN ALL THE CASES
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BEFORE
Dr. Satish A. Munde : Presiding Member
Mr. Vijay C. Premchandani : Member
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For the Complainants : The learned Shri. Aditya Kharkar
For the Opponent : The learned Shri. Patwardhan
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COMMON JUDGMENT
(Dated 30th Sept., 2024)
Per Hon'ble Mr. Vijay C. Premchandani, Member
1] The present complaints are filed against the same opponents and the facts of all the complaints are same and identical, hence disposed of by this common judgment. The complainants have filed present complaint under section 12(1)(a) of the Consumer Protection Act, 1986. The gist of the complaint is as under.
4 [TEIRTH DEVELOPERS] 2] The complainants have approached to the opponents with reference to the purchasing the flats in the scheme declared by the opponents which is to be constructed at Survey Nos.123/1, 123/2, 123/3/1, 123/3/2, 123/4/2 and 123/6/2 at village Sus, Taluka-Mulshi, Dist. Pune under the dame and style as 'Aarohi'. The complainants have submitted that they agreed for the consideration of the flat/bungalow, details of the same has been mentioned in the Schedule, which is as follows.
SCHEDULE
Case Name Flat Area ( Type Date Date Actual Del Pa Flat Cost Actual Extra
Sr. Numb No Sq Ft) of of Date ay rki ( Amount paid
No er agree Posse of mo ng Agreemen paid amou
. ment ssion Posses nth all t Value) nt
( sion s oc witho
Agree at ut
ment) ed ST,VA
T,
MSEB
1 CC/13/ Pramod D- 1055 2BHK 9-May- 31- 20-Oct- 46 No 33,07,625 33,07,625
500 Patil 803 2011 Dec- 2015
2011
2 CC/13/ Kushal D- 1068 2BHK 17-Apr- 30-Jul- 31-Oct- 63 No 20,29,390 22,25,180 45,378
501 Vyas 102 2009 2010 2015
3 CC/13/ Rahul C- 953 2BHK 15-Apr- 31- 24-Oct- 46 No 20,01,300 22,39,173 69,741
505 Kolte 603 2011 Dec- 2015
2011
4 CC/13/ Haresh D- 1103 2BHK 28-Apr- 30-Jul- 21-Oct- 63 No 20,95,700 21,93,014 Bathro
506 Chimanp 301 (P22) 2009 2010 2015 om
ure reducti
on
5 CC/13/ Bhagwat D- 952 2BHK 29-Apr- 31- 20-Oct- 46 No 19,99,200 21,84,235
508 Rokade 704 2011 Dec- 2015
2011
6 CC/13/ Rajesh B-04 Car A- Banglo 17-Apr- 30-Jul- 31-Oct- 63 NA 52,49,885 62,43,987 6,84,61
509 Shinde 2103 w 2009 2010 2015 0
Gar A -
1041
7 CC/13/ Manoj C- 1103 2BHK 20- 30-Jul- 24-Oct- 63 No 20,95,776 22,62,187 92658
510 John 106 May- 2010 2015 +
2009 Bathro
om
reducti
on
8 CC/13/ Himansh E- 1416.6 3BHK 16/4/2 30-Jul- 20/10/ 63 No 26,91,540 30,20,591 1,04,33
512 u Bhange 304 009 2010 2015 0
5 [TEIRTH DEVELOPERS]
9 CC/13/ Prasanna D- 945.32( 2BHK 2/4/20 30-Jul- 16/01/ 65 No 17,96,108 20,36,025 81,324
513 kumar 403 P35) 09 2010 2016 (P22) (P242)
jha (P35) (P23) (P39) (P436)
10 CC/13/ Priyank E- 1409 3BHK 30/3/2 30-Jul- 20/10/ 63 No 26,77,100 29,37,097 22,830
514 Jain 401 009 2010 2015
11 CC/13/ Avinash E- 1582 3BHK 6/8/20 31- 1 Oct 15 46 No 51,46,000
515 Zutshi 1104 11 Dec- 54,97,727.
2011 00
12 CC/13/ Surabhi C- 1050 2BHK 15-Apr- 31- 24-Oct- 46 No 22,05,000 24,18,502 57,668
517 Kolte / 605 2011 Dec- 2015
Abhijeet 2011
Kolte
13 CC/13/ Amit Patil C- 999.97 2BHK 10/2/2 31- 21-Oct- 46 No 28,49,922 30,84,376 1,03,21
518 903 011 Dec- 2015 6
2011
14 CC/13/ Balkrishn D- 833 2BHK 15- 31- 3-Nov- 47 No 22,15,500 24,61,127 52,964
519 a Godbole 705 (P116) Apri- Dec- 2015
2011 2011
15 CC/13/ Ganesh A-21 Carpet Row 4/17/2 31-Jul- 10/31/ 63 NA 4095930 45,84,196 282413
520 Pallerla -1671 House 009 2010 2015 (P-34) (P 346,
Garden (P22) (P38) (P 448) 450, 451)
-732 (P
-34)
16 CC/13/ Tushar D- 1063 2BHK 5/27/2 30-Jul- 24-Oct- 46 No 20,19,700 22,88,928 1,29,00
522 Bhandark 205 009 2010 2015 4
ar
17 CC/13/ Sandeep D- 1055 2BHK 23/8/2 30- 9/30/2 46 No 36,50,500 37,75,600
523 Wagh 804 011 Dec- 015
2011
The opponents have agreed to provide following facilities and amenities to the complainants.
(a) Piped gas for all apartments, row houses, bungalows
(b) Garbage chutes
(c) Water treatment plant
(d) Rain water harvesting
(e) Shopping complex
(f) One covered car parking for all flats
(g) Play area for children
(h) One passenger lift and one service lift
(i) Office and warehouse space for the society management
(j) Religious hall
(k) Club house with Two tennis courts One basket ball court One badminton court 6 [TEIRTH DEVELOPERS] Swimming pool for adults and children Kids sitting area Party garden Multipurpose room with cards table Dining facility Private theatre Gymnasium Table Tennis and Pool tables One squash court
(l) Adequate number of open parking for visitors
(m) Fencing for row houses and bungalows
(n) Open area/garden at common places in society as well as for row houses and bungalows to be laid with lawn
(o) Play are/lawn needs to be on the same plane and should not have Contour
(p) Generator for Emergency power supply The opponents failed to provide these facilities and amenities to the complainants. There is delay in handing over possession of the flats/bungalows as agreed in the agreement. The complainants should not supposed to pay service tax, in spite of that, it has been paid by them, there is deficiency in service on the part of the opponents for delay in handing over possession of the flats/bungalows and also neglected to provide facilities and amenities as agreed at the time of sale of flats. Therefore the present complaints have been filed.
The complainants have prayed that the opponents may be directed to hand over possession of the flats/bungalows along with all the facilities and amenities and also directed to pay compensation, monthly rent, refund of Service Tax, VAT paid to the opponents along with interest and costs of the litigation. 3] The complaint was admitted and the notices were issued to the opponents. The opponents appeared and objected the present complaints. The opponents 7 [TEIRTH DEVELOPERS] have contended in the written statement that, the opponent no.3 was originally approached by the Aarohi Co-operative Society Ltd. for purchase of land and construction of the project. The opponent nos. 2 and 3 have formed a joint venture company which is opponent no.1. The opponents were assured by the society that the 166 members of the society shall purchase the flats, row houses, bungalows in the project. Hence on the strength of the assurance and of timely payment of the consideration from the Society members the opponents commenced the project in an efficient and professional manner. Initially all token of considerations were made to opponents. All permissions germane have been obtained from the concerned Government authorities and attached along with our Additional affidavit of evidence. It is further contended by the opponents that, though assurances were received for 166 members from the said society, 40 members cancelled their booking made in different buildings and eventually only 126 agreements for sale were registered, causing financial stress as the booking done and agreed on account of bulk project was at a basic minimum rate. According to the opponents, the initial sanction of building plans (of February 2009) the area of the service shaft (Duct) was 4.35 Sq.Mtrs. However, after said sanction the Development Control Regulations (DCRs) were revised and the area of service shafts was increased to 6.0 sq.mtrs. The opponents submitted that according to requirement of the revised DCRs the opponents were required to revise the building plans making the area of duct 6.0 Sq. Mtrs. The said revision not only required to revise plans of the building but the overall layout construction which was already commenced, requiring the area of the toilets to be decreased to accommodate the new shaft area.
8 [TEIRTH DEVELOPERS] According to the opponents, genesis of the dispute with regard to the possession of the said units lies not in agreement of sale, but due to change in the DCR rules and other requisites as tabled below;
Documents and Date of Document Number of
clearances applied for Application
obtained on months delayed
Revised sanction- Due 25-Feb-09 26-Nov.-10 21 Months
to change in D.C. Rules
for duct area 4.35
Sq.Mtrs to 6 Meter
Environmental 21-Sep-10 23-Jan-12 16 Months
Clearances
Plinth Checking 15-Oct-10 04-May-13 31 Months
Certificate
Road hand over 18-Oct-11 23-Apr-12 6 Months
Completion Certificate 3-Apr-13 03-Jul-14 15 Months
Total number of months delayed 89 Months
Unless the changes were made, the plans were not getting sanctioned although submitted immediately on account of the sluggish functioning of the authorities. The Environment Certificate was another new procedure that had to be got sanctioned. These factors had a cascading effect and hence the delay of 89 months, all these factors were beyond the control of the opponents. The various departments took their own sweet time to approve the plans and further NOC's, which caused the delay.
It is contended by the opponents that, in order to complete the construction in time the opponents being confident of getting the revised plans approved continued the construction work, for which the opponents had to pay a heavy penalty of Rs. 57,00,000.00. This confirms and affirms that opponents were more than willing to perform and complete their commitment on or before due date and more so without passing any un-estimated burden of the said Rs. 57 lakhs to any of the flat buyers. The opponents further contended that, even during pendency 9 [TEIRTH DEVELOPERS] of sanction, the opponents never stalled the development and construction works and paid heavy penalties for the same. According to the opponents, as per Government Norms promoter/builder/developers have to obtain plinth checking certificate from concerned authority, which is basic document which require for getting Occupancy Certificate. The opponents received plinth checking certificate on 04/05/2013 from Collector, Pune which application was made by the opponents on 15/10/2010, there 31 months delay was not in hands of the opponents and therefore beyond the scope of the opponents which is severely covered in the agreement.
It is submitted by the opponents that, though the construction of the buildings was completed within the stipulated time by paying the fine of Rs.57.0 lacs as penalty for the same. Before the grant of Occupancy Certificate (the "OC"), Fire NOC had to be produced as per Government Norms. The application for Fire NOC to Chief Fire Officer (the "CFO"); however, the said application was officially inwarded on 12/11/2013. Final NOC by CFO was granted on 17/10/2014. Further, the OC was withheld as there was no concurrence of the Pune Municipal Corporation, which took 6 months that the OC was released. Once again, the delay caused was for the reasons beyond the control of the opponents. The opponents stated that on 03/07/2014, the OC was issued by the authorities and after issuance of the OC the possession of the units were handed over to unit purchasers. The opponents stated that the possession was offered to the complainant in CC/13/500 by letter. However; complainant took possession before getting OC and taken possession letter on 20th Oct. 2015.
According to the opponents, the said project was completed with the amenities and the claim of the complainants were wrong and baseless. The complainants have tried to obstruct the construction of phase II and even today 10 [TEIRTH DEVELOPERS] are not allowing the opponents to complete the project by construction of the 6 bungalows and have thrown tantrums by swatting on the road or lying down so that the trucks carrying construction material and other construction equipment cannot reach the site. The various complaints made by the Aarohi society and this complainant was the reason that the OC was withheld by PMRDA. It was only after a proper investigation and site visits by the PMRD and the MPCB to whom the complaints were referred, gave a clear report that all the amenities are in place and that the sanction for phase II was properly given that the OC was issued. This information was procured form the PMRDA under RTI, a copy which is annexed hereto.
With these contentions the opponents prayed that the complaints filed by the complainants may be dismissed with costs.
[4] Perused the complaint, affidavit, list of documents, written version, evidences of both the parties and written arguments and heard oral arguments of both the Counsels. Following points arise for our determination and we have recorded our findings against the same for the reasons given below :-
Sr. No. Points Findings
1. Whether complainants are the 'consumer' of In the affirmative.
the opponent as defined in the Consumer
Protection Act, 1986?
2. Whether the opponents have adopted In the affirmative.
deficiency in service towards the
complainants?
3. Whether complainant is entitled for the As per final order.
compensation?
11 [TEIRTH DEVELOPERS]
4. What order? As per final order.
REASONS
5] Point No.1 - Whether complainants are the 'consumer' of the opponent
as defined in the Consumer Protection Act, 1986?
As per the aforesaid schedule, the complainants approached to the opponents for purchasing aforesaid alleged flats/bungalows for the consideration amount, as agreed in the agreement. Hence, it is proved that the complainants are the 'consumers' of the opponents as per section 2(1)(d) of the Consumer Protection Act, 1986.
6] Point No.2 - Whether the opponents have adopted unfair trade practice or deficiency in service towards the complainants?
It is contended in the complaint as well as in the evidence of the complainants that all the amenities and facilities have not provided as agreed and there is delay in handing over possession of the flat. The pleadings of the opponents in defense stated that there is not deliberate attempt on the part of the opponent nos.1 to 3; since there is revised terms and change in the DC Rules therefore there is delay in causing sanctioned plan. It is further contended that the OC has been issued by the competent authority in the year 2013, therefore prior NOC obtained from the Chief Fire Officer and another certificate has been obtained from the competent authority, thereafter Completion Certificate has been obtained by the opponents and offered the complainants to take possession of the respective flats. Therefore, there is not deficiency on the part of the opponents. We have perused the evidence of the complainant. During the pendency of the complaint, the 12 [TEIRTH DEVELOPERS] possession have been handed over to the complainants. Admittedly there is delay in handing over the possession of the flat. The complainants have made allegations that opponents have agreed to provide facilities and amenities; but failed to provide the same. The said allegations have been proved by the complainants by way of adducing their evidence.
7] Ratio of the following citations are applicable to the present complaints;
"Wing Commander Arifur Rahman Khan And Aleya Sultana And Others v. Dlf Southern Homes Pvt. Ltd. (Now Known As Begur Omr Homes Pvt. Ltd.) And Others (Supreme Court Of India, 2020)"
: This case discusses the obligations of developers to provide promised amenities. The Supreme Court held that developers must be held accountable for failing to provide amenities such as schools, commercial complexes, and healthcare facilities, which were represented to the flat purchasers. The absence of these amenities, despite the urbanization of the surrounding area, constituted a deficiency in service.
"M/S. UNIVERSAL INFRASTRUCTURE & 2 ORS. v. RAVINDER KAUR BEDI (National Consumer Disputes Redressal Commission, 2024)":
This judgment highlights the responsibility of the builder to provide amenities as outlined in the brochure and the consequences of failing to obtain an occupancy certificate. The Commission found that the lack of amenities and the failure to obtain necessary certificates were deficiencies in service.
"SUSHMA BUILDTECH LTD. v. JAGSUKHBIR KAUR & 3 ORS. (National Consumer Disputes Redressal Commission, 2020)": The Supreme Court's ruling in this case emphasized that failure to provide promised amenities, alongside delays in possession, constitutes a deficiency in service. The court awarded compensation due to the developer's failure to deliver on their commitments.
13 [TEIRTH DEVELOPERS] "M/S. AAKRUTI AMITY APARTMENT OWNERS ASSOCIATION (REGD) & 2 ORS. v. AAKRUTI REALTORS & 4 ORS. (National Consumer Disputes Redressal Commission, 2024)": This case involved a complaint against a builder for not providing promised amenities and the lack of substantiation of claims by the complainants. It was noted that the builder's failure to provide amenities constituted a deficiency in service. From the averments of the affidavit of evidence filed by the complainants in support of their contentions, it is proved that the opponents failed to provide the possession of the flats/row houses as agreed and there is lack of amenities and facilities as promised by the opponents; hence from the law laid down in the abovementioned citations, we come to the conclusion that the opponents have committed deficiency in service and therefore we answer point no. 2 as affirmative.
8] Point No. 3 - Whether complainant is entitled for the compensation? Admittedly, the complainants agreed that they have received the possession of the flats/bungalows and there is delay in handing over the possession of the flats/bungalows therefore the complainants were required to bear Service Tax and VAT. The opponents have also failed to provide amenities and facilities, therefore the complainants are entitled to get compensation towards mental agony and costs of the litigation. Hence, we pass the following order.
ORDER
1. The consumer complaints are partly allowed.
2. The Opponents are jointly and severally directed to refund amount of Service Tax and VAT (as mentioned above in the schedule) to the complainants.
14 [TEIRTH DEVELOPERS]
3. The Opponents are jointly and severally directed to pay amount of Rs.5,00,000/- (Rs. Five Lakh only) towards compensation for mental pain and agony in each complaint within thirty days from the date of this order, otherwise amount will carry interest @ 12% p.a. from the date of this order till realization of entire amount.
4. The Opponents jointly and severally directed to pay amount of Rs.50,000/- (Rs. Fifty Thousand only) towards costs of this litigation in each complaint.
5. The Opponent nos. 1 to 3 jointly and severally directed to comply the aforesaid order within 30 days from the date of receipt of copy of this order.
6. Copies of the order be furnished to the parties.
Pronounced on 30th Sept., 2024
[Vijay C. Premchandani] [Dr. Satish A. Munde]
Member Presiding Member
kk