State Consumer Disputes Redressal Commission
Shri. Jaiprakash Lalmuni Upadhyay vs M/S. R. P. Builders & Ors on 25 January, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Consumer Complaint No.CC/12/192
Mr.Jaiprakash Lalmuni Upadhyay
R/o.D-605, Swaminarayan Apartment
Survoday Nagar, Datta Mandir Road
Malad (E), Mumbai 400 097 .....Complainant
Versus
1.M/s.R.P.Builders
Star Crystal Building Shop no.5
Near Kanakia Police Station
Mira Road (E), Thane 400 107
And also having their office at
Shop no.8, Rishabh Tower
Shanti Park, Gokul Village
Mira Road, Thane
3. Rita Prabhudas Vithlani
3. Vatsal Prabhudas Vithlani
4. Mitsur Prabhudas Vithlani
Opponent no.4 is minor thorugh his mother
and natural guardian opponent no.2
5. Neha K.Katira
All R/o. Raghuleela Apartment
Room no.703, N Plot
Near Max Mall, Bhayander (West)
6. Mr. Paratik Hasmukh Kanvar
R/o.211, Chandrachhata Building
Shanti Park, Mira Road (E)
District Thane
7. M/s.Kamal Developers
Through its Proprietor
Ramniklal D. Lakhani
Office at C-52, Rashmi Enclave
Shastri Park, Opp. St. Xavier's School
Shastri Park, Mira Road (E)
Taluka & District Thane .........Opponents
8.M/s. Sai Shakti Construction
1
Through its proprietor Mr.Uttam Nagoram
Office at Shop no.6
New Rajshree Co-op.Hsg.Society
Mira Road (E)
Taluka & District Thane
BEFORE: Smt.Usha S.Thakare, Presiding Judicial Member
A.K.Zade, Member
PRESENT:Mr.Rajendra Yadav-Advocate for complainant
None present for opponents
ORDER
Per Hon'ble Smt.Usha S. Thakare, Presiding Judicial Member
1. Complainant-Mr.Jaiprakash Lalmuni Upadhyay has filed this consumer complaint against the opponents under section 12 of Consumer Protection Act, 1986 by alleging deficiency in service and unfair trade practice. According to complainant, M/s.R.P.Builders is a proprietary concern. Deceased Mr.Prabhudas Devchand Vithalani was proprietor of opponent no.1. Opponent nos.2 to 5 are the legal heirs of deceased proprietor. Opponent no.6 was responsible for day to day affairs of opponent no.1. Opponent nos.7&8 are subsequent purchasers of project of opponent no.1. Proprietor Mr.Prabhudas Devchand Vithalani died intestate on 20/02/2011 leaving behind him his wife Rita, son Vatsal, son Mitsur and daughter Neha.
2. According to complainant, he was staying in a small room at Malad along with his family members. He was in search of suitable residential accommodation. He approached to opponent no.1, who had displayed various boards on which the flats offered for sale were described. The complainant and his family members approached to the proprietor of opponent no.1. It was stated that the flats are under construction and construction work is in progress. Relying on the statement of the proprietor, complainant booked flat no.302 admeasuring 1050 sq.ft. from 2 the project of opponent no.1. Opponent no.1 agreed to sell flat bearing no.302 admeasuring 1050 sq.ft. in the proposed building named as "Surbhi Aangan" situated on plot bearing old Survey no.268 corresponding new survey no.53 Hissa no.6 admeasuring 1470 sq.meters situated at Village Navghar, Taluka & District Thane for a total consideration of Rs.21 lakhs. The proprietor of opponent no.1 issued allotment letter on 29/09/2010. The complainant paid an amount of Rs.6,21,000/- to deceased Mr.Prabhudas Devchand Vithalani. From time to time complainant asked for execution and registration of the agreement. However, on one or other pretext, proprietor avoided registration of agreement. Deceased Mr.Prabhudas Devchand Vithalani had given draft of agreement for sale in respect of booked flat to the complainant for getting the same to be verified from the advocate. The deceased assured to the complainant that he would construct the flat and hand over possession of the same to the complainant. However, deceased failed to register an agreement of sale even after receipt of Rs.6,21,000/-. The complainant and other flat purchasers lodged complaint with concerned police authority. Police recorded statement of the proprietor Mr.Prabhudas Devchand Vithalani, who stated that he would start construction and hand over possession of the flat to the complainant. The proprietor delayed construction of the project and intentionally misguided the police authority. In the month of April 2012 complainant and other flat purchasers visited the construction site. They shocked to see that board of opponent no.1 was removed from the site and board of M/s.Kamal Developers was fixed on the property site. The complainant and other flat purchasers made due enquiry. They came to know that proprietor Mr.Prabhudas Devchand Vithalani died and his legal heirs have sold the property to M/s.Kamal Developers for further construction. The complainant visited the office of opponent no.7 for making enquiry in respect of the transaction between opponent nos.1 to 5 and opponent no.7 but opponent no.7 gave evasive answers. Complainant made due enquiry 3 and got search report. It was found that opponent nos.7 & 8 are the purchasers of property of opponent no.1. Search report was taken from office of Sub-Registrar of Assurances, Thane. Opponent no.7 purchased the property from the legal heirs of deceased Mr.Prabhudas Devchand Vithalani vide registered agreement dated 19/10/2011. Opponent no.7 sold said property to opponent no.8 vide agreement dated 09/12/2011. Several flat purchasers booked the flats including the complainant in the project of opponent no.1. Under these circumstances, the opponents are liable to give the said premises to the complainant without creating any obstruction.
3. It is further alleged that with malafide intention opponents have not executed registered agreement in favour of the complainant. The complainant had made payment of Rs.6,21,000/- out of consideration of Rs.21 lakhs. The opponents failed to comply their legal and contractual obligation. Till today possession of flat is not handed over to the complainant. The complainant is ready and willing to pay remaining amount of consideration in respect of flat no.302. The opponents are guilty of deficiency in service and unfair trade practice. The opponents failed to fulfill their promise. The complainant suffered heavy financial loss, sufferings and hardship. Therefore, by filing present compliant, the complainant has requested to declare the opponents as guilty of deficiency in service and unfair trade practice. It is requested to direct the opponents to hand over possession of flat no.302 admeasuring 1050 sq.ft. in proposed building "Surbhi Aangan" situated on plot bearing old Survey no.268 corresponding new survey no.53 Hissa no.6 admeasuring 1470 sq.meters situated at Village Navghar, Taluka & District Thane to the complainant and to execute sale deed in favour of the complainant. It is requested that the opponents be directed to obtain Occupation Certificate and Completion Certificate in respect of building "Surbhi Aangan" and to form Co-operative society. The complainant has also claimed compensation of Rs.1 lakh for mental torture and harassment and claimed Rs.25,000/- towards legal 4 charges and Rs.10,000/- towards costs of litigation.
4. Notices are served to the opponents by paper publication. The opponents failed to appear and file written statement. Ultimately, by order dated 04/04/2014 consumer complaint was proceeded ex-parte against the opponents. The complainant has filed affidavit of evidence. He has relied on copy of allotment letter issued by opponent no.1 on 29/09/2010, receipts issued by the opponents in favour of the complainant and copies of cheques under which the payment is made to opponent no.1.The complainant also relied on draft agreement of sale, copy of agreement executed between opponent nos.2 to 5 & opponent no.7 dated 29/10/2011 (Exhibit 4), copy of agreement executed between opponent nos.7 &8 dated 09/12/2011 and copy of search report dated 08/04/2012. Evidence of the complainant on oath remained unchallenged. Heard learned counsel Mr.Rajendra Yadav for complainant. Perused affidavit of evidence of the complainant and documents on record.
5. Following points arise for our determination and we record our findings for the reasons below:-
Sr.no. Points Answer
1 Whether opponents are guilty of Yes
deficiency in service?
2 Whether complainant is entitled for Yes, as per final order
relief? If yes, to what extent and from
whom?
3 What order? As per final order.
6. As to point no.1-Deficiency in service:-
It is evident that the complainant was in need of suitable accommodation for his growing family. The complainant had booked flat no.302 admeasuring 1050 sq.ft. in the proposed building "Surbhi Aangan" situated on plot bearing old Survey no.268 corresponding new survey no.53 Hissa no.6 admeasuring 1470 sq.meters situated at Village Navghar, Taluka & District Thane for consideration of Rs.21 lakhs from project of opponent no.1. The 5 complainant has made payment of Rs.6,21,000/-. Unchallenged evidence of the complainant is supported by receipts on record. In allotment letter, proprietor of opponent no.1 admitted receipt of Rs.6 lakhs. Receipts of payment of Rs.6,21,000/- are on record.
7. Proprietor Mr.Prabhudas Devchand Vithalani died on 20/02/2011 leaving behind him opponent nos. 3 to 5 as his legal heirs. The opponent no.6 was looking after affairs of opponent no.1. This fact is not denied by opponent no.1. Learned counsel Mr.Yadav has drawn our attention to the receipt which is signed by opponent no.6 for opponent no.1. Copies of the registered agreement are sufficient to hold that later on project of opponent no.1 was purchased by opponent no.7. Opponent no.7 sold it to opponent no.8. Opponent nos.7 & 8 are subsequent purchasers and they are stepping down in the shoes of opponent no.1. Proved fact is that the complainant booked flat with opponent no.1 in its project and paid an amount of Rs.6,21,000/- towards consideration. The flat was booked on 29/09/2010 vide allotment letter. Till today the complainant has not received possession of the booked flat. Delay in handing over the possession itself amounts to deficiency in service. The opponent no.1 has received consideration of Rs.6,21,000/- but failed to execute registered agreement in favour of the complainant. It is contravention of section 4 of Maharashtra Ownership Flats Act, 1963 (MOFA). All these facts show deficiency in service on the part of opponents.
8. The complainant and other flat purchasers filed complaint with police. Opponent no.1 failed to hand over possession of booked flat to the complainant. Opponent no.1 through proprietor agreed to give possession of flat within 18 months from the date of booking. It is brought on record by way of evidence that the complainant was needy. He spent his hard earned amount in booking the flat but till today he is waiting for the possession of his dream house.
69. It is proved on the basis of evidence and documents that family of the complainant was large family. Therefore, the complainant booked flat bearing no.302 from the project of opponent no.1 for consideration of Rs.21 lakhs. At the same time, wife of the complainant booked flat no.301 in the building "Surbhi Aangan" admeasuring 625 sq.ft.( super built up) for consideration of Rs.12,50,000/-. Wife of the complainant paid an amount of Rs.4,21,000/- to the opponent no.1 towards consideration. Possession of booked flat was never given to wife of the complainant. Ultimately, Mrs.Gayatri Jaiprakash Upadhyay, wife of complainant filed consumer complaint no.347/2012 before the Learned District Consumer Disputes Redressal Forum,Thane. Said consumer complaint was decided in her favour and the opponents were declared as guilty of deficiency in service. They were directed to hand over possession of flat no.301 to the complainant Mrs.Gayatri Upadhyay, wife of the complainant on payment of balance amount of Rs.8,29,000/-. The opponents were also directed to pay Rs.1,00,000/- towards compensation and Rs.10,000/- towards litigation charges. It was directed to comply the order within a stipulated period, otherwise, penal interest @ 9% p.a. was awarded. Copy of the judgment is filed on record.
10. In the case in hand, complainant has duly proved booking of the flat from the project of the opponents for consideration of Rs.21 lakhs. He paid an amount of Rs.6,21,000/- towards consideration. Till today registered agreement is not executed in favour of the complainant. The material fact was suppressed from the complainant when project was sold to opponent no.7 and subsequently to opponent no.8. In spite of receipt of notice, the opponents failed to give satisfactory explanation. They never expressed their readiness and willingness to hand over possession of the flat. The complainant made payment to the opponents through cheque. The complainant was teacher by profession. Initially, he was staying as a tenant in room no.4, in Sarvodaya Nagar, chawl no.G, Datta Mandir Road, Malad 7 (East), Mumbai 400 097. When said chawl was given for redevelopment, room no.D-605 was allotted to him, which is situated in Swaminarayan Apartment, Sarvodaya Nagar, Datta Mandir Road, Malad (East), Mumbai 400 097. The complainant was staying in small room with his family members. Due to increase and growth in family, he booked a flat in the project of the opponents by investing his hard earned money. The opponents never cared to complete the project or to refund the amount of the complainant with interest. Complainant has suffered mental pain, agony and harassment. He was required to run from pillar to post to save his hard earned money and to get possession of the booked flat. The opponents are guilty of deficiency in service. They had adopted unfair trade practice. As a result of this discussion, we answer point no.1 for determination in affirmative.
11. As to point no.2- The complainant has booked the flat for residence. He is entitled to get possession of booked flat. Opponents are jointly and severally liable to execute conveyance deed in respect of flat no.302 admeasuring 1050 sq.ft. in the proposed building to be named as "Surbhi Aangan" on plot bearing old Survey no.268 corresponding new survey no.53 Hissa no.6 admeasuring 1470 sq.meters situated at Village Navghar, Taluka & District Thane, in favour of the complainant and to hand over possession of flat to the complainant. The complainant is ready and willing to pay balance amount of consideration. He has suffered mental pain and agony. He is entitled to claim compensation of Rs.1,00,000/-. He is entitled for costs of Rs.25,000/-. With this view, we pass the following order:-
ORDER
1. Consumer complaint is partly allowed.
2. It is hereby declared that the opponents are guilty of deficiency in service.
3. The opponents are jointly and severally directed to execute 8 conveyance deed in favour of complainant in respect of flat no.302 admeasuring 1050 sq.ft. in the proposed building to be named as "Surbhi Aangan" on plot bearing old Survey no.268 corresponding new survey no.53 Hissa no.6 admeasuring 1470 sq.meters situated at Village Navghar, Taluka & District Thane.
4. Complainant to pay balance amount of Rs.14,79,000/- to the opponents at the time of registration of conveyance deed in his favour.
5. The opponents to execute conveyance deed and hand over possession of flat to the complainant within a period of two months from the date of this order. Otherwise amount of Rs.6,21,000/- paid by the complainant will carry interest @ 9% p.a. from the date of allotment of letter i.e.29/09/2010 till realization of amount.
6. The opponents do pay jointly and severally an amount of Rs.1 lakh (Rupees one lakh) towards compensation and an amount of Rs.25,000/- (Rupees twenty five thousand only) towards cost of litigation.
7. Copies of the order be furnished to the parties.
Pronounced on 25th January, 2018.
[USHA S.THAKARE] PRESIDING JUDICIAL MEMBER [A.K.ZADE] MEMBER Ms 9