State Consumer Disputes Redressal Commission
Suresh Chand Gupta vs M/S Inde Graniti Industrial Ltd on 3 May, 2023
1 (RBT/CC/16/462)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
COMPLAINT NO.RBT/CC/16/462
Shri.Suresh Chand Gupta
s/o late Shri.Ram Gopal Gupta
R/of 18, Vijay Vilas,
Oomar Park, Warden Road,
Mumbai. Complainant
Versus
1. M/s. Inde Graniti Industries
Ltd.
Office at- 1413, Maker Chambers V,
13th floor, Nariman Point,
Mumbai 400 021.
2. Shri.J.N.Gupta
Director of Opp. No.1
1413, Maker Chambers V,
13th floor, Nariman Point,
Mumbai 400 021.
3. Shri.Gulab Gupta
Director of Opp. No.1
29, Veer Nariman Road,
Rustom Building,
Mumbai 400 021.
4. Shri.J.M.Upadhyaya
Chief Accountant of Opp. No.1
29, Veer Nariman Road,
Rustom Building,
Mumbai 400 021.
5. The State Bank of Bikaner & Jaipur
A-1/19, Safdarjung Enclave,
New Delhi. Opponents
2 (RBT/CC/16/462)
BEFORE :
Mr.Justice S.P.Tavade, Hon'ble President
Mr.A.Z.Khwaja, Hon'ble Judicial Member
PRESENT:
For the Advocate Ajay Pawar
Complainant :
For the Advocate Chimalkar h/f
Opponent : Advocate Prabhavalkar
JUDGMENT
(Dated 3rd May, 2023)
Per: Hon'ble Mr.A.Z.Khwaja, Judicial Member-
1] Complainant Shri.Suresh Chand Gupta claims to be resident of Warden Road, Mumbai and also claims to be Businessman. Opponent No.1 - M/s. Inde Graniti Industries Ltd. is a company registered under the Companies Act. Opponent No.2 -Shri. J.N. Gupta and opponent No.3 Shri. Gulab Gupta are the Directors of opponent No.1 and are responsible for day today affairs of opponent No.1. Opponent No. 4 is the Chief Accountant of opponent No.1. Complainant and Opponent Nos. 1 to 4 are dealing in the business of constructing several projects and buildings on various plots in Navi Mumbai. Complainant has further contended that opponent Nos.1 to 4 represented to the complainant that they were constructing several projects in Navi Mumbai. Complainant has contended that relying upon the representation of the opponents, complainant booked flat No. DX 16 in the building 'Om Villa' alongwith car parking situated at plot No.57 to 61, sector 21, Nerul, Navi Mumbai admeasuring 1620 sq.ft. from opponents. Complainant has contended that the total consideration of the flat including the car parking was fixed at 3 (RBT/CC/16/462) Rs.25,86,048/-. Complainant made payment of Rs.11,35,000/- to the Opponent No. 1 and acknowledgement was also given. On 28/01/2022 opponent No.1 issued letter to the complainant asking to make further payment of Rs.14,51,000/- as balance payment of consideration of flat. Opponent No.1 demanded sum of Rs.1,00,000/- against MSEB charges, water connection charges, security deposit etc. Complainant has alleged that though he has made substantial payment, opponent No.1 sent letter dated 07/04/2003 demanding final payment of Rs.9,21,048/- and additional sum of Rs.1,00,000/- for miscellaneous charges. Opponent thereafter executed agreement for sale on 19/12/2003 which was registered with Sub Registrar, Navi Mumbai and as per the registered agreement for sale cost of flat was shown as Rs.25,86,048/- including car parking. Complainant has contended that subsequently price of the premises DX 16 was revised to Rs.29,36,734/- from the earlier price of Rs.25,86,048/- inclusive of car parking for which Rs.1,00,000/- extra was demanded and additional sum of Rs.1,00,000/- was demanded for MSEB, society deposit of Rs.30,000/- etc and Rs.19,236/- for maintenance charges was also demanded even though the possession of the flat was not handed over to the complainant. Complainant has contended that revised cost of the flat DX 16 was fixed at Rs.31,55,950/- of which Rs.21,05,000/- has already been paid by the complainant as on 28/02/2004. Hence, balance payable as on 28/02/2004 was Rs.10,15,970/-. Complainant has contended that thereafter opponent Nos.1 to 3 have informed the complainant that if the complainant desires to book an additional flat, he may do so which was already booked by the opponent No.3 and his family pertaining to DX 4, RH11, RH 13 and bunglow at Parsi Hill, Belapur, Navi Mumbai, which all were standing in the name of the opponent No.3 and his family. Complainant has stated that accordingly complainant purchased flat namely DX-4 admeasuring 1620 sq.ft. owned by the opponent No.3 and his family, situated in the same building i.e. Om Villa on Plot No.57/16, sector 21, Nerul, Navi Mumbai. Complainant has stated that 4 (RBT/CC/16/462) accordingly on 28/02/2004 MOU was executed and complainant purchased another flat i.e. DX-4 admeasuring 1620 sq.ft for total consideration of Rs.22,25,390/- inclusive of Rs. 1 lakh for cost of MSEB charges and other miscellaneous charges. Opponent No. 3 requested the complainant on behalf of opponent No.1 to make payment of Rs.16,82,000/- to Smt.Jyoti Khandelwal resident of U.S.A which amount opponent No. 3 owned to her and to make balance payment of Rs.16,04,900/- as per MOU dated 28/02/2004. As such as per MOU opponent demanded sum of Rs.10,50,970/- for balance payment of DX-16 and for DX-4 opponents demanded Rs.22,35,930/- from the complainant. Thus, Rs.32,86,900/- was demanded from the complainant for flats bearing Nos.DX 4 and DX-16 and opponent No.3 on behalf of opponent No.1 requested the complainant to pay sum of Rs.16,82,000/- to Smt.Jyoti Khandelwal to make capital for Income Tax purposes. Complainant has contended that as per the instructions, complainant paid sum of Rs.13,82,000/- to Smt.Jyoti Khandelwal. Complainant has contended that opponents assured the complainant to deliver possession of DX-4 and DX-16 in the year 2006. Complainant has contended that in order to make further payment to the opponent No.1, he took loan in the joint name of himself and his wife and also mortgaged other properties. After receiving Rs.19,13,300/- opponent handed over possession of DX-16 without car parking to the complainant in the year 2006 and assured to handover possession of DX-4 by December 2010 as they were facing financial crunches. Complainant has contended that on 26/12/2008 he visited the office of the opponent to verify progress of the construction but opponent threatened that the possession of DX 4 and car parking would not be handed over to the complainant. Complainant lodged criminal complaint before the Addl. Chief Metropolitan Magistrate and process was issued against opponent Nos.1, 3 and 4 u/s 420 read with section 34 of IPC vide order dated 16/07/2010. Complainant has contended that subsequently he received information that flat namely DX-4 came to be sold by the opponent to Deepak 5 (RBT/CC/16/462) Thomas and Neetha John. Complainant has contended that the opponent did not hand over possession of DX-4 and car parking of DX-16. Complainant was convinced that there was deficiency service as well as unfair trade practice. Complainant was also given threats by the opponent and so complainant was compelled to file present complaint against opponents.
2] After filing of complaint due notices came to be issued to the opponents and the same were duly served upon the opponent. Opponent Nos. 1 and 2 appeared and filed written version on record. Opponent Nos. 1 and 2 have categorically denied the allegations. Opponent Nos. 1 and 2 have contended that opponent No. 3 was the Director of the Company and he died in Mumbai on 04/11/2011 and so being Ex-Director was not necessary party in the present proceeding. But his name was not deleted by the complainant. Complainant has suppressed the material fact. It is submitted that complainant is not resident of Navi Mumbai but is resident of New Delhi. He has falsely mentioned his address as Warden Road, Mumbai. Opponent has contended that complainant is brother of opponent No.3 and nephew of a opponent No. 2. In the year 1994 complainant had approached opponent with request to book shop No. 5 for consideration of Rs.11,22,000/- and had also agreed to pay additional charges of Rs.9,70,000/- but there after had cancelled the booking of the shop in the year 2002, which is reflected in the MOU dated 28/02/2004. In the mean time, complainant had booked duplex flat DX-16 in 'Om Villa' for consideration of Rs.31,55,975/- and had paid Rs.11,35,000/- upto 28/02/2004. It is contended that on 28/02/2004, the disputes and difference between the complainant and the opponent No.3 were amicably resolved and the said settlement was reduced in writing vide MOU dated 28/02/2004. Complainant did not make further payment in respect of shop No. 5 and flat No.DX-16 and so he requested for cancellation of booking of the shop and requested to transfer payment of Rs.9,70,000/- made by him towards the said shop towards the consideration of 6 (RBT/CC/16/462) flat No.DX-16 to opponent No.1. It is further contended that opponent No.1 sold the said shop to the third party on 27/03/2003 under the registered agreement to Mr.Jay Prakash. Complainant could not make balance payment of Rs.10,50,970/- in respect of flat No.DX-16 and to resolve the said dispute meeting dated 28/02/2004 was arranged and it was agreed to transfer the flat No.DX 16 in favour of the complainant for consideration of Rs.31,55,970/- and agreed to pay balance consideration of Rs.10,50,970/- as mentioned in the MOU dated 28/02/2004. During the course of the meeting complainant had also shown willingness to purchase another flat No.DX 4 which was originally booked in the name of his married daughter Smt.Jyoti Khandelwal for consideration of Rs.22,35,930/- Complainant's daughter Smt.Jyoti Khandelwal had paid Rs.10,26,951/- and had shown her willingness to cancel the booking of the same on receiving amount of Rs.16,82,000/- by M/s.Inde Graniti Pvt. Ltd. as and by way of full and final settlement. It is further contended that it was agreed by the complainant that out of Rs.32,86,900/- payable by the complainant to the opponent No.1, he shall pay an amount of Rs.16,82,000/- to his married daughter Smt.Jyoti Khandelwal in 3 instalments namely Rs. 5 lakhs by 15/04/2004, Rs.5 lakhs by 15/05/2004 and Rs.6,04,000/- by 30/06/2004 and has agreed to pay remaining amount to the opponents. It is contended that since the complainant failed to make the payment to his daughter Smt.Jyoti Khandelwal, opponent No.1 paid amount of Rs.17,28,512/- to Smt.Jyoti Kahndelwal and opponent No.1 cancelled the booking of flat DX 4 and sold the said flat to Mr.Deepak Thomas and Neetha Jon under agreement dated 22/12/2005 and thereafter possession of flat No.DX 16 was handed over to the complainant, which complainant sold to the third party in June 2006. Therefore, it is further contended that question of handing over flat No.DX-4 does not arise. Complainant has suppressed the material fact before filing of the present complaint that on the same cause of action, complainant had filed Arbitration proceedings before the Arbitrators Mr. Justice R.G.Sindhkar (Retd.), 7 (RBT/CC/16/462) Mr.Bajranlal Biyani and Mr.Radheshyam Kahndelwal and thereafter withdrawn claim from the arbitration proceeding. Opponent Nos.1 and 2 have contended that the complaint is not tenable under the Consumer Protection Act. Further the flat DX 4 was sold by the opponent No.1 to third party on 22/12/2005 and even the duplex flat No.16 was sold by him to Shri.Harish Mehta on or before 25/04/2006. Further the relief claimed by the complainant are outside the purview of the Consumer Protection Act, 1986. Opponent Nos.1 and 2 have prayed for dismissal of the complaint with costs.
3] Complainant thereafter led his evidence by filing affidavit on record. Complainant has further placed reliance upon the documents namely letter issued by M/s.Inde Graniti Industries Ltd., dated 28/01/2002, 02/04/2003. Complainant has also placed reliance upon the copy of agreement for sale as well as other documents. Opponent Nos.1 and 2 have tendered their evidence affidavit on record and also placed reliance upon several documents including one copy of MOU dated 28/02/2004. Both complainant and opponent Nos.1 and 2 placed on record their brief notes of written argument.
4] We have heard Shri. Ajay Pawar, learned Advocate for the complainant and Shri.Nilesh Parte, learned Advocate for the opponents. We have gone through the brief notes of written argument filed on record by both the parties.
5] Complainant Shri. Suresh Gupta has come with a case that in the year 1994 opponent No.1 - M/s. Inde Graniti Industries Ltd., who were Builder and Developer represented to him that they are constructing several projects and buildings on various plots of land at Navi Mumbai and necessary permissions are obtained from the CIDCO for development. Complainant therefore booked flat number DX 16 in the building 'Om Villa' alongwith car parking situated at plot No.57 to 61, sector 21, Nerul, Navi Mumbai admeasuring 1620 sq.ft. for 8 (RBT/CC/16/462) total consideration of Rs.25,86,048/-. Complainant has also paid entire consideration and opponent No.1 issued receipts as per letter dated 04/08/2000. Complainant has contended that thereafter opponent No.1 demanded amount of Rs.14,51,000/- towards flat No. DX-16 and Rs.1,00,000/- towards various charges including MSEB charges, water connection etc. Complainant has contended that thereafter on 07/04/2003 opponents demanded balance consideration showing that complainant is liable to pay Rs.9,21,048/-. It is the case of the complainant that subsequently agreement for sale was executed between the complainant and the opponent on 19/12/2003. But thereafter opponent revised the cost of said flat to Rs.29,36,734/- from the earlier price of Rs.25,86,048/- inclusive of car parking for which Rs.1,00,000/- extra was demanded and additional sum of Rs.1,00,000/- was demanded for MSEB, society deposit of Rs.30,000/- etc and Rs.19,236/- for maintenance charges was also demanded even though the possession of the flat was not handed over to the complainant. Complainant has contended that revised cost of the flat DX 16 was fixed at Rs.31,55,950/- of which Rs.21,05,000/- has already been paid by the complainant as on 28/02/2004. Hence, balance payable as on 28/02/2004 was Rs.10,15,970/-. Complainant has contended that evenafter payment of entire amount, opponent again made offer to the complainant to purchase one more flat DX-4 admeasuring 1620 sq.ft. which was standing in the name of the opponent No.3 and his family in the same building i.e. Om Villa on Plot No.57/16, sector 21, Nerul, Navi Mumbai for total consideration of Rs.22,25,390/-. It is the case of the complainant that subsequently MOU was executed and as per the said MOU complainant was to pay amount of Rs.16,82,000/- to Smt.Jyoti Khandelwal and balance of Rs.22,35,930/- was to be paid to the opponent. We have heard learned Advocate for the complainant. He submitted that complainant had paid amount of Rs.16,82,000/- to Smt.Jyoti Khandelwal and as per the MOU opponent agreed to transfer and give possession of flat number DX-4 to the complainant in the year 2006. It is 9 (RBT/CC/16/462) contended that the complainant had borrowed loan for purchase of flat DX 16 and DX 4 and had paid balance consideration to the opponent. Complainant has not disputed the fact that the opponent had handed over possession of flat DX 16 in the year 2006 but without car parking and had promised to hand over possession of flat DX 4. But it is the case of the complainant that possession of flat No.DX-4 was never handed over though the complainant had sold his other flat DX 16. It is argued by the learned Advocate Shri Pawar for the complainant that thereby the opponent M/s. Inde Graniti Industries Ltd. had committed deficiency in service by not delivering the possession of flat number DX 4.
6] We have heard learned Advocate for the Opponent. However, learned Advocate for the Opponent has strongly rebutted the fact that the complainant had booked flat No.DX-4. It is submitted by the learned Advocate for the opponent that the complainant never booked said flat and said flat was booked by Smt.Jyoti Khandelwal- daughter of the complainant for amount of Rs.22,35,930/- out of which she had paid Rs.10,26,951/-. Opponent has contended that payment was made as per one family arrangement between the family members on 28/02/2004. As per the said family arrangement, Smt. Jyoti Khandelwal had consented to cancel the booking of flat No. DX-4 if she received consideration of Rs.16,82,000/- and complainant undertook to purchase the said flat subject to payment of Rs.16,82,000/- to Smt.Jyoti Khandelwal and additional by paying Rs.16,04,900/- to the opponents by 30/06/2004. Opponent has come with a specific plea that the complainant failed to pay Rs.16,82,000/- as per the terms of MOU for family arrangement to Smt.Jyoti Khandelwal. On the contrary, opponent paid Rs.17,28,512/- to Smt.Jyoti Khandelwal. In order to support the contention, opponent has relied upon the documents namely Ledger Account with respect to Smt. Jyoti Khandelwal, which shows that opponent has paid Rs.3,78,189/- on 24/11/2004, 10 (RBT/CC/16/462) Rs.10,27,000/- on 01/12/2004 and Rs.3,00,000/- on 01/01/2005. Opponent has contended that after refunding entire amount of Rs.17,05,189/- to Smt.Jyoti Khandelwal Opponent sold the flat number DX-4 on 22/12/2005 to Shri.Deepak Thomas and Smt. Neetha John. But the complainant had not issued any letter or reminder to the opponent and has prayed for possession of flat No.DX 4 only in the year 2011 after period of six years. We have heard Shri. Pawar, learned Advocate for the complainant. But we find that no sufficient explanation is coming forth as to why complainant had not issued any letter or notice to the opponent when the opponent sold the flat No.DX 4 on 22/12/2005 to the third party namely Shri.Deepak Thomas and Smt.Neeta John since the complainant failed to make payment towards flat No.DX-4. Complainant has prayed for possession of flat No.DX-4 in the year 2011, after period of six years after the said flat No.DX-4 had already been sold to the third party. Hence, it is contended that the complaint is barred by the limitation. We find that no sufficient explanation is coming forth nor complainant had issued any letter or notice to the opponent when the opponent had sold the flat on 22/12/2005 to the third party Deepak Thomas and Neetha John. It is pertinent to note that the Complaint is filed in the year 2011 after period of six years. It is argued by the learned Advocate for the opponent that complainant Shri.Suresh Gupta himself sold the flat No.DX-16 on 18/07/2006 to one Shri. Haresh Mehta. But even at that point of time no letter was addressed to the opponent calling upon him to handover possession of flat No.DX-4. During the course of the argument, learned Advocate for the Opponent has drawn our attention to the various documents on record which goes to show that Opponent had paid Rs.17,05,189/- to Smt. Jyoti Khandelwal as per MOU. We have heard learned Advocate Shri.Pawar for the complainant that complainant had infact paid amount to Smt.Jyoti Khandelwal. But in fact we find that in the present case Smt.Jyoti Khandelwal has not been made a party to the present case and only reliance has been placed upon the documents. At this stage, it is necessary to 11 (RBT/CC/16/462) mention that though the complainant is relying upon the said MOU, perusal of MOU shows that the same contains several entries and calculations. But no details are given regarding actual transactions which have taken place as well as the transactions between the complainant and Smt.Jyoti Khandelwal. It is pertinent to note that the document MOU dated 28/02/2004 is not signed by all the parties to whom reference is made in the said document. As such we find that it is difficult to place reliance upon the MOU so far as aspect of payments are concerned. On the other hand, we find that the opponent has placed reliance on the documents, which clearly goes to show that opponent Inde Graniti Industries Pvt. Ltd. had made payment to Smt.Jyoti Khandelwal. Opponent has placed on record the document namely the copy of agreement to show that the complainant had not only sold the flat DX-16 to Haresh Mehta but thereafter opponent Inde Graniti Industries Pvt. Ltd. had sold the flat DX-4, which is the subject matter of the present complaint on 22/12/2005 to Shri.Deepak Thomas and Neetha John. On the basis of the aforesaid transaction, it is argued by the learned Advocate for the opponent that infact the complaint is barred by limitation. But the learned Advocate for the complainant has submitted that there was continuous cause of action so far as delivery of possession of flat is concerned. However, looking to the pleadings and averments made by the complainant as well as the opponent and after taking into consideration the document namely MOU dated 28/02/2004, we feel that, in the present case there is necessity of detailed evidence which cannot be done in summary enquiry under the Consumer Protection Act, 1986.
7] Learned Advocate for the opponent has also taken a plea that the complainant was not a Consumer and the flats were purchased by him for commercial purpose. It is argued that the complainant had booked flat Nos. DX 16 and DX 4 and shop No. 5 to make commercial profit and complainant was resident of Delhi whereas he has booked the flat in Mumbai by way of 12 (RBT/CC/16/462) investment. Learned Advocate for the complainant has rebutted this contention. But we find that complainant has not adduced any evidence to show that the complainant was doing business in Mumbai or that he had purchased the shop or flats DX 16 and 4 for his own residence, which was the object of the Consumer Protection Act, 1986 and which is also required for being a 'Consumer'. During the course of the argument learned Advocate for the opponent has drawn our attention to certain letter wherein complainant has described his address at Delhi and this also support version of Opponents.
8] The next contention advanced on behalf of the Opponent is that the complainant and the opponent were brothers and infact the present dispute was family dispute which was disguised as 'Consumer dispute'. It is submitted that opponent No.3 (since deceased) was brother of the complainant and complainant was nephew of opponent No.2. We do find force in this contention and the same also find some support from the document namely MOU on which heavy reliance is placed by the complainant and the opponent. But we have already discussed earlier that not much weightage can be attached to this document namely MOU in the absence of details regarding actual transactions between the parties. We are of the view that, in the peculiar facts and the circumstances of the present case, the present dispute requires detailed evidence to be led by both the parties which was possible only in the Civil Court as civil rights of the parties are also involved. As such we are unable to accept the contentions advanced by Shri. Ajay Pawar, learned Advocate that there was deficiency in service on the part of the opponents and so we pass the following order-
ORDER 13 (RBT/CC/16/462) 1] Complaint is hereby dismissed.
2] No order as to costs 3] Copy of this order be supplied to both the parties.
[Justice S.P.Tavade] President [A.Z.Khwaja] Judicial Member rsc