State Consumer Disputes Redressal Commission
Jayendra V.Manek And Anr vs M/S.Tilak Construction Through ... on 14 May, 2026
1 CC/10/2023
THE STATE CONSUMER DISPUTE REDRESSAL COMMISSION,
MAHARASHTRA STATE, MUMBAI
CONSUMER COMPLAINT NO: SC/27/CC/10/ 2023.
1) JAYENDRA V. MANEK Complainants
903-Neelam Chs, Kharkar Ali, Thane.W-400601
2) SHILPA J. MANEK
903-Neelam Chs, Kharkar Ali, Thane.W-400601
VERSUS
M/S. TILAK CONSTRUCTION Opponents
Tilak Marble, Thakrey Compound,
Tikuji Ni Wadi Rd, Chitalsar, Manpada,
Thane.-400610
Having Partners as Below
A) Sunil G. Kabra
A/3/502-Happy Valley complex
Tikuji Ni Wadi Rd, Chitalsar, Manpada, Thane,
B) Sunil G. Kabra (H.U.F)
Consisting of
i)Sunil G. Kabra (MOB:- +91 9324545510)
ii) Ayush S. Kabra (MOB:-+917021897737) ]
iii) Vandana S. Kabra
A/3/502-Happy Valley complex
Tikuji Ni Wadi Rd, Chitalsar, Manpada,Thane,
2 CC/10/2023
C) Tilak G. Kabra
Sanskar Public School
Sanskar The School
Near Mohar Mangari, Chittori Chittorgarh-312001
BEFORE:
Ms. Poonam Maharshi, Hon'ble Presiding Member.
Dr. Nisha Amol Chavhan, Hon'ble Member.
APPEARANCE
For Complainants: Mulesh Manek (C.A.) (P.A.H.)
For Opponents: Adv. Nirmala Bharti
JUDGEMENT
(13/05/2026) Per Dr. Nisha Amol Chavhan, Hon'ble Member
1. The present Consumer Complaint No. CC/10/2023 filed by the complainants against Opponents under the provisions of Section 47 of the Consumer Protection Act, 2019.
2. The brief facts of the case of Complainants that they want to purchase a house for his family, so they met broker Mr Girish Hirji Bauva who informed about the project, S.K Shrushti complex of M/s Tilak construction at Shahpur and later took to the office of M/s Tilak construction having office at Thakre compound, Tikujiniwadi Road, Chitalsar, 3 CC/10/2023 Manpada, Thane West, and introduced to Mr Sunil Kabra the partner in M/s Tilak construction and Other partners Tilak Kabra, Vandana Kabra and Ayush Kabra who looked after the business of the firm. All the partners of Tilak Construction informed to complainants at their office that Tilak Construction is a partnership Firm, in this firm. There are 3 main partners named Sunil G. Kabra, Tilak G. Kabra and Sunil G. Kabra (H.U.F). In this meeting Vandana S. Kabra stated that she is looking after all the finance of this firm.
3. Complainants submitted that the project S.K shrushti complex situated at Sahapur of M/s Tilak construction. Mr Sunil kabra and Vandana Kabra showed them the copy of the sanction plan of the entire project and promised and assured of the authenticity and correctness of the representations made by them. Opponents specifically Sunil Kabra and Vandna Kabra showed brouchers and Commencement Certificate and informed that Tilak Construction has all the authorities pertaining to this project. Broker took them at Project site; there were big hoardings where Building permission was seen with the signature of the Collector. Also one Agreement was shown to 4 CC/10/2023 them by the seller that they had permission from Land owner for the development. Complainants was told that there were flats available in building no. 1 to building no. 4 but were not available on same floor as complainants wanted, so he was induced to book four flats no. 201,202, 203 and 204 of the second floor of building no 5 of the S.K. shrushti complex.
4. Complainants submitted that the total consideration for the 4 flats was agreed at Rs 1, 08,17,500/- and they paid an initial amount of Rs. 1,06,500 in cash on 01/08/14 & 1,00,000/-on 06/08/20 at the Thane office and booked the flats. Thereafter Mr Sunil Kabra in the presence of Mr Girish Bauva, informed them that if he paid 25% of the booking amount of the 4 flats, he would register a common agreement to sell, for all 4 flats. They agreed and accordingly paid Rs 10, 00,000/- on 10/8/2014 and Rs 15, 00,000/- on 13/08/2014 from them personal account both vide RTGS. On 13/8/2014, the agreement to sell was registered vide serial no 4685/2014 with the office of the Sub registrar at shahpur. later they paid Rs 35,00,000/- on 14/8/2014 and Rs 5,00,000 on 16/8/2014 from my personal account both vide RTGS, and Rs 5,00,000/- on 5 CC/10/2023 25/3/2015 and Rs 5,00,000/- 26/03/2015 both vide RTGS from his wife's account. Therefore, In total, he paid Rs 77,06,500/-out of the total 1,08,17,500/- and brokerage of Rs 40,000 to Mr Girish Hirji Bauva, till 26/3/2015. In addition he paid Rs 5, 40,900/- as stamp duty, Rs 31240/- towards registration & Rs 5000/- as documentation charges.
5. Complainant also submitted that, As per the promise and assurance made by Mr Sunil Kabra and other opponents the project was supposed to be completed within 3-4 years but unfortunately and surprisingly the construction was not done especially that of the building in which he had booked his 4 flats i.e. building no. 5 in the S.K. Shrusti Complex. There was too much delay in commencing construction. In 2019, he started to regularly meet with Partners regarding the progress in construction. He also inquiring about the project and meet the land owner Mr. Satish Patkar and was shock to found that the plans and commencement certificate shown to them by partners were of other buildings and not the building in which he had booked the flats and thus was cheated. In fact the Land Owners had given a public notice in the newspaper on 26/08/2014. He 6 CC/10/2023 informed me that builder was given 48 months to get required NOC from Sahapur Grampanchayat, collector sanction plan of 8 buildings and build them in 48 months till 04/05/2012 according to the development agreement which they had entered into with Mr Sunil Kabra of M/s Tilak construction dated 5/5/2008. The project was to be completed within 4 year i.e. by 04/05/2012 but this fact was not informed to them. In fact M/.s Tilak Construction was not having any right to build building no. 5 and so didn't have rights to book any flats in building no. 5 on the date of registration of his flat and he had defrauded and cheated.
6. Complainant further submitted that after meeting the Land owners he met with opponents and demanded back the money paid by him and after continuous follow up with Mr Sunil Kabra regarding the refund hid booking amount with escalation and benefit in the form of compensation. Mr Sunil Kabra agreed to refund his money but never did so. In August 2019, when they went to meet Mr Kabra at his office, they were abused by using filthy language, told not to visit the office again and threatened that they would have their legs broken and implicated on false charges of 7 CC/10/2023 extortion and cheating if we did so. So on 20/08/2019,he logged a police complaint against him before Inspector of Police, Chitalsar Police station, Manpada, Thane.
7. Complainant also submitted that after getting notice from Chitalsar Police station, Manpada, Thane about complain, opponents informs that there was a tittle dispute and in 2016 he was directed by relevant authorities to close down the work via letter dated 11/09/2019. But he fails to explain about being silent on the matter till complaint in august 2019. So he didn't inform unless complaint against him. That he was unable to build building no 5 in which he have booked flats and is ready to refund his money in six months but didn't pay them till date. On 07/12/2019 he got closure letter from above police station stating that its civil matter. In 2020 also he had send him reply for his letter, dated 24/11/20 through my Adv. Vivek Joshi Speed post Receipt No RM649105674IN & RM649105440IN dated 02/12/20 but was returned. Then this Reply was send to Sunil Kabra through his friend Mr. Ketan Thakkar on what's up and directing him to pay the invested money with interest and other remunerations. A reply from Adv. Pradeep B. Nair to Adv. Tarun Kumar Singh was received dated 8 CC/10/2023 02/10/2021 & letter dated 18/10/2021 was send and in both letter he was insisting to take other flats in building no. 1 to building no. 4. So after inspecting the site personally in refused his offer as the construction was not according to complainant satisfaction as building were in bad condition in 7-8 years due to bad construction.
8. Complainant also submitted that, in 2022 January, he filled a petition in court U/s. 156(3) against M/s. Tilak Construction for the offences U/s. 420,406,409, 468,504,506 (ii) r/w 34 of IPC and u/s. 3,4 and 13 of MOFA Act. That the facts of the case clearly show that the opponents had dishonest intention to cheat and defraud the complainants. Due to this he and his family have gone through lots of harassment, mental agony and extreme pressure which needed to be compensated separately. If the opponents had given the possession of flats then he would had sifted business between Shahapur and Nasik of Rice & Poha Mills and would preferable would be able to pay the EMI of banks. But on the other hand from October 2019 he was unable to pay the bank instalments due to which he declared N.P.A by bank. Therefore he respectfully submitted that the opponents are liable to pay jointly or severally an 9 CC/10/2023 amount of Rs 1,00,000/- towards mental agony, harassment, torture, stress and inconvenience to the mental trauma and personal suffering caused due to inability of giving possession of flats, intentionally indulging me to take flats in building in which he is unable to construct.
9. Upon admission of the complaint, notice was issued to the Opponents. Accordingly they appeared through counsel and filed Written Version with documents; the pleadings of both sides have been taken on record. Opponents No. 1, (A) and (B) have filed the pursis on dated 06/02/2026 that the written arguments already filed on record and may kindly be considered as oral arguments.
CONTENTION OF THE OPPONANTS
10. In defence, Opponents stated that they carrying out the business activities as developers and they are the developers of project known as S.K.Srishti Complex, situate at Old Agra Road, Opp. Panchayat Samiti Office, Behind P.W.D. Guest House at Shahapur, District-Thane. The said projects consisted in all 8 buildings as per the plans which were passed and duly sanctioned then by the Gram Panchayat Shahapur vide Vikas Prastav No.188/16 dated 30/09/2010.
10 CC/10/2023
11. Opponents stated that, Somewhere in the year 2014, the Complainants had approached with regard to the purchase of 4 flats in the said project constructed and built by the Opponents at Shahapur. At that time, the Opponents had requested the Complainants to purchase the available and ready flats in the four buildings already constructed in the said project. However, the Complainants had represented that they do not want to purchase the completed flats in the said project but for the purpose of saving income tax they want to purchase the flats which would be ready and completed after four to five years only. At that time the Opponents informed the Complainant that they are intending to start construction activities of building No.5 in the year 2015-2016 in the said project and that the same shall be completed within a period of 4-5 years. The Opponents had disclosed all the necessary and material information about the said project to the Complainants and also shown the approved plans/specifications as approved by the concerned authority. The Opponents had also provided all the relevant information and documents for the Complainant's inspection and verification. After being fully satisfied about the same and after having complete 11 CC/10/2023 knowledge and details of the said project, the Complainants had agreed to book the 4 flats i.e. flat No.201, 202, 203, 204 ad-measuring about 3945 sq. feet in the building No.5 to be constructed and build upon in future in the said project as per the agreement entered into by and between the Complainants and Respondents. Accordingly the Complainants entered into a registered agreement for sale dated 13/08/2014 in this regard with the Opponents for the purchase of the said four flats on the terms and conditions as mentioned in the said agreement for sale. The total consideration of the said flats was of Rs. 1, 08, 17,500/- and the Complainants had paid amount of Rs.67, 06,500/- to the Opponents as per the registered agreement for sale. Thereafter, the Complainants paid further Rs.10, 00,000/- through RTGS. Thereby, amount of balance amount of Rs.31, 11,000/- is due and payable by the Complainants to the Respondents in respect of the said agreement for sale.
12. Opponents stated that they had entered into Development Agreement with the owners of the land at Shahapur i.e. Mr. Satish Patkar and Mr. Pradeep Patkar. The Opponents have completed the construction of four buildings consisting of ground plus 2 floors after receiving 12 CC/10/2023 the necessary permission from the Gram Panchayat. The Opponents had given the possession of the various flats to various purchasers as per the registered agreements entered with them. The said flat purchasers are residing in their flats peacefully as legal owners. The Opponents have given all the amenities to flat purchasers as per registered agreement.
13. The Opponents stated that, there was dispute about the title/ownership and area of the land which was taken by the Opponents for development purpose from the owners Mr. Pradeep Patkar and Mr. Satish Patkar. Thereby, the Opponents issued legal notice to the owners. Meanwhile due to introduction of RERA Act, certain new permissions from Town Planning Authority needed to be obtained along with the other permissions. Therefore the Opponents had shown the legal notice copies to the Complainants. Due to the legal dispute about the title of ownership cropping up between the owners of the said property and other persons, the said project was held up and the further sanctions/permissions as required under the RERA Act could not be obtained by the Opponents from the concerned department. The Opponents had revealed the said facts to the Complainants 13 CC/10/2023 and offered the Complainant to return back the amount taken from the Complainant towards the sale of the said flats. However, at that time the Complainant informed the Opponents that they had no desire to take back the amount but kept insisting the Opponents to sell the other flats of approximately the said area in the same complex as the Complainant liked the project. Thereby, meeting was held in between the Complainants and the Opponents. The Opponents offered the Complainants that they can exchange/purchase the other flats available in the adjoining building in the same project. However the said flats which the Complainants had later on agreed to purchase was admeasuring about 3989 sq. ft., whereas as per the earlier agreement entered into the area was admeasuring about 3945 sq. ft. So there was difference of 44 sq. ft. in the total area of the new flats and considering the difference area at the same old rate and balance amount which was due as per the agreement was required to be paid by the Complainants. In this regard several meetings and discussions had taken place between the Complainants and the Opponents. The consideration amount which was paid by the Complainant as per the earlier registered agreement 14 CC/10/2023 were to be adjusted in the new agreement to be entered into in respect of the purchase of the new flats agreed to be sold by the Opponents and purchased by the Complainants. The earlier registered agreement was to be cancelled first and the same, the Complainants have to pay Rs.1,20,651/- for new agreement for the sale of the new flats to be purchased by the Complainants was to be entered into. It was also informed to the Complainants about additional consideration amount and balance due amount. The Opponents also sent the draft of the cancellation deed to the Complainants and at that time the Complainants told the Opponents that the said draft will be approved after consulting their Advocate. However the Complainants represented to the Opponents that due to financial constraints the Complainants were not in a position to immediately inform about the payment schedule i.e. terms of payments with regards to the balance amount remaining and additional amount to be paid as per the new agreement to be entered into. However, despite passage of more than sufficient time the Complainants had not informed about the same and had kept delaying the matter from their side.
15 CC/10/2023
14. Opponents stated that they had repeatedly followed up the matter with the Complainants on various occasions. They had extended full support from their side and they further gave some time to the Complainants to arrange for the remaining funds as they were facing shortage of funds due to market recession and financial constraints. Due to the on-going discussions that had taken place between the Complainants and the Opponents in this regard substantial time had passed. The Opponents had also kept the sale of the said new flats pending and at hold, despite there being purchasers/buyers for the same as the Complainants had shown their interest and keen desire and agreed to purchase the same in exchange of the earlier said flats booked by the Complainants. Therefore the Opponents had not sold the said flats to anybody since long as per the mutual understanding between them. The construction of the said flats which the Complainants had subsequently agreed to purchase was ready since long. The same was well within the knowledge of the Complainants. However the Complainants had kept the matter pending and delayed the matter and for which the Complainants are to be held responsible for causing the delay which was caused from 16 CC/10/2023 solely from their side and for which the Opponents cannot be held responsible in any manner whatsoever.
15. Opponents stated that they have sent the letter dated 11/09/2019 to the Complainants in this regard. However, despite receipt of the said letter, the Complainants had failed to reply to the same and further failed to contact or kept them informed in this regard.
16. Opponents mentioned that Complainants are not Consumers as they have entered into agreement for the purpose of saving the income tax. The Complainants have invested in the flats not for their personal use but for the purpose of gains. Therefore the complaint before this Commission is not maintainable. The Complainants are not consumers and the above complainant is not maintainable under the Consumer Protections Act, 2019 and is liable to be dismissed in limine.
17. Opponents also mentioned that the complaint is time barred and not within the law of limitation. The Complainants entered into an agreement for sale dated 13/08/2014. Thereafter, the Respondents by their letter dated 11/09/2019 informed the Complainants to execute the cancellation deed and enter into new agreement for sale 17 CC/10/2023 of the new flats in lieu of flats in the building No.5. However, the Complainants intentionally delayed the matter without any reason. Thereby, the complaint is hopelessly barred by law of limitation and liable to be dismissed with heavy costs.
18. Heard the learned Advocates for the parties at length; perused the complaint with annexures, the Written Version of Opponents, the affidavits of evidence of the both parties and the documents placed on record as well as citation of record filed by the both parties, upon a comprehensive appraisal of the pleadings, materials and submissions available, the following points arise for our determination and are answered as set out hereinafter.
SN Points Findings
1 Whether the Complainants are 'Consumers' Affirmative
under the Act?
2 Whether the complaint is barred by Negative
limitation?
3 Whether there is a 'Deficiency in Service'? Affirmative
4 What order? As per final
Order
REASONS
Point No.1
19. The State Commission observed that the definition of a "Consumer" under Section 2(7) of the Consumer Protection Act, 18 CC/10/2023 2019, is broad, yet explicitly excludes persons who obtain goods or services for "commercial purposes." In the present case, the Opponents have raised a technical plea that the Complainants, by booking four contiguous flats (Nos. 201 to 204), have engaged in an investment activity aimed at "saving income tax" and "gaining profit," thereby ousting the jurisdiction of this Commission. However, it is a settled legal principle, that the mere purchase of more than one unit does not automatically categorize a transaction as "commercial." The Commission notes that the burden of proof lies heavily on the Opponents to produce cogent evidence such as past trade records or a history of frequent real estate transactions to demonstrate that the Complainants are in the business of buying and selling properties for profit.
20. The Commission further observed that the Complainants have provided a plausible explanation for the multiple bookings:
the intent to create a singular, larger residential space for a joint family and to facilitate business operations (Rice & Poha Mills) between Shahpur and Nasik. In the absence of any evidence from the Opponents showing that the Complainants are "real estate traders," the Commission cannot rely on mere conjectures regarding Tax saving as a ground to deny them protection under the Act. Tax planning is a legal right of every citizen and does 19 CC/10/2023 not, by itself, transform a residential purchase into a commercial venture. Therefore, since the flats were booked for the personal use of the family and to support their livelihood, the Complainants squarely fall within the ambit of "Consumers." The Commission finds that the Opponents' objection is an attempt to evade liability for their failure to deliver possession, and thus, the Complainants are held to be "Consumers" entitled to seek Redressal for the deficiency in service. In view of our finding given as to have point No.1 in Affirmative Point No. 2
21. Regarding the contention raised by the Opponents that the complaint is barred by the law of limitation, this Commission observed that such a plea is legally untenable in the context of housing construction and possession. While the Opponents argue that the Agreement to Sell was executed in 2014 and the complaint was filed in 2023, it is a well-settled legal principle, established through a catena of judgments by the Hon'ble National Consumer Disputes Redressal Commission (NCDRC) and the Hon'ble Supreme Court, that the failure of a builder to deliver possession or provide a valid Occupancy Certificate constitutes a "Continuing Cause of Action."
20 CC/10/2023
22. In the present case, the Complainants have fulfilled their part of the obligation by paying a substantial sum of Rs.77,06,500/-, yet the Opponents have failed to complete the construction of Building No. 5 or offer a valid possession of the specific units booked. As long as the possession is not handed over or the deposited amount is not refunded in full with interest, the cause of action remains alive and does not terminate simply because a specific period has elapsed from the date of the agreement. The Opponents cannot take advantage of their own default in failing to complete the project to shield them behind the plea of limitation. Furthermore, the record indicates on-going communication and a police complaint in 2019, which further reinforces that the dispute remained active. Therefore, we hold that since the grievance of non-delivery of possession is a subsisting one, the complaint is well within the period of limitation and is maintainable on its merits. In view of our finding given as to have point No.2 in Negative Point No. 3
23. The Commission observed that the Opponents committed a fundamental breach of contract by collecting a substantial portion of the sale consideration of Rs.77,06,500/- without 21 CC/10/2023 possessing the legal right or valid sanctions to construct Building No. 5. It is a settled principle of consumer jurisprudence that a developer who accepts booking amounts and enters into a registered Agreement to sell is under an absolute obligation to deliver the specific unit promised within the stipulated timeframe. The Opponents' failure to even commence the construction of Building No. 5, nearly a decade after the initial payment, is not merely a delay but a complete failure of consideration. The defence of a "title dispute" with the original landowners or "market recession" cannot be categorized as force majeure or a valid excuse to withhold a consumer's hard-earned money.
24. Furthermore, the Commission finds that the Opponents indulged in Unfair Trade Practices by suppressing the fact that their development rights with the landowners had potentially expired or were under litigation at the time of the agreement. Forcing the Complainants to accept alternative flats in different buildings (Nos. 1 to 4) which were reportedly in a state of dilapidation constitutes a further deficiency. A consumer has the "Right to Choice," and a developer cannot unilaterally substitute the subject matter of a registered agreement. By failing to provide a clear title, failing to obtain the necessary Commencement 22 CC/10/2023 Certificate for the specific building, and failing to refund the amount upon demand, the Opponents have caused significant financial loss and mental trauma, squarely meeting the criteria for "Deficiency in Service" and "Restraint of Trade" under the Act. In view of our finding given as to have point No.3 in Affirmative Point No.4
25. In view of our findings as to point no.1 and 3 in Affirmative, and point No.2 in Negative, it is clear that the opponents has committed deficiency towards the complainants. Therefore, this commission came to the conclusion that complaint is hereby needs to be partly allowed. It is directed the Opponents are jointly and severally to refund the amount of Rs.77,06,500/- to the Complainants with 9% per annum from the date of each payment until realization. It is directed the Opponents are jointly and severally shall refund the Stamp Duty and Registration charges of Rs. 5, 72,140/- to the Complainants, as the contract could not be performed due to the Opponents' default. It is directed the Opponents are jointly and severally are directed to pay Rs. 20,000/- towards compensation for mental agony and harassment. The Opponents shall pay Rs. 25,000/- towards the cost of litigation. Hence, in an answer to point no. 4 we pass the following order.
23 CC/10/2023 ORDER
1. The Complaint is partly allowed.
2. It is directed the Opponents are jointly and severally to refund the amount of Rs.77, 06,500/- to the Complainants with 9% per annum from the date of each payment until realization.
3. It is directed the Opponents are jointly and severally shall refund the Stamp Duty and Registration charges of Rs.5,72,140/- to the Complainants, as the contract could not be performed due to the Opponents' default.
4. It is directed the Opponents are jointly and severally are directed to pay Rs.20,000/- towards compensation for mental agony and harassment.
5. The Opponents shall pay Rs.25,000/- towards the cost of litigation.
[Ms. Poonam Maharshi] Presiding Member [Dr. Nisha Amol Chavhan] Member 24 CC/10/2023