State Consumer Disputes Redressal Commission
Mrs. Kusumdevi Vidyaprasad ... vs M/S Aishwarya Avant Builders Llp, ... on 8 June, 2022
CC/19/703
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Complaint No.CC/19/703
1) MRS.KUSUMDEVI VIDYAPRASAD VISHWAKARMA,
2) MR.VIDYAPRASAD DASHRATH VISHWAKARMA,
Both residing at:
Room No.4, Shivdhani Yadav Chawl,
Pratap Nagar, J.V. Link Road,
Jogeshwari (East), Mumbai 400 060. ....... Complainant(s)
Versus
1. M/s.AISHWARYA AVANT BUILDERS LLP,
Through it's Partners,
Having new office address at:
522, 5th Floor, The Summit-Business Bay,
Andheri Kurla Road, Off.Western Express Highway,
Adjacent to WEH Metro Station, Gate No.3 and
Guru Nanak Petrol Pump,
Andheri East, Mumbai 400 093.
2. Mr.SUDEEP KUMAR SAHA,
Partner of M/s.AISHWARYA AVANT BUILDERS LLP,
Having new office address at:
522, 5th Floor, The Summit-Business Bay,
Andheri Kurla Road, Off.Western Express Highway,
Adjacent to WEH Metro Station, Gate No.3 and
Guru Nanak Petrol Pump,
Andheri East, Mumbai 400 093.
3. Mr.GURMEET SINGH GUPTA, ---- Deleted
Partner of M/s.AISHWARYA AVANT BUILDERS LLP,
Having new office address at:
522, 5th Floor, The Summit-Business Bay,
Andheri Kurla Road, Off.Western Express Highway,
Adjacent to WEH Metro Station, Gate No.3 and
Guru Nanak Petrol Pump,
Andheri East, Mumbai 400 093. .........Opponent(s)
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CC/19/703
BEFORE:
Justice S.P. Tavade - President
A.Z. Khwaja - Judicial Member
For the Complainant(s) : Advocate Mr.Kiran Patil
For the Opponent(s) : None
ORDER
Per Hon'ble Mr.A.Z. Khawaja - Judicial Member:
(1) Complainant nos.1 and 2 who are residents of Jogeshwari East, Mumbaihave preferred present complaint u/sec.17(1)(a)(i) of the Consumer Protection Act, 1986.
(2) Short facts leading to this complaint are as under:
Complainant No.1 - Mrs.Kusumdevi Vidyaprasad Vishwakarma is the wife of Complainant no.2 - Mr.Vidyaprasad Dashrath Vishwakarma. Opponent no.1 - M/s.Aishwarya Avant Builders is a partnership firm and opponent nos.2 and 3 are the partners of opponent no.1. M/s.Aishwarya Avant Builders, opponent no.1 is engaged in business of construction of building and development of flats. Complainants have taken a plea that, they were in need of a residential flat and they were very much impressed by the scheme regarding development and construction of flats floated by opponent no.1 - M/s.Aishwarya Avant Builders. Complainants being convinced by the opponent nos.1 and 2, decided to book a Flat No.A-801 on the 8th Floor admeasuring 396 sq.ft. for the price of Rs.48,55,000/-. Complainants have contended that they had paid earnest amount of Rs.5,00,000/- on 25/09/2014 and the receipt to that effect was also obtained. Complainants thereafter also made payments as per the details given by the complainants in the complaint.2
CC/19/703 Complainants thereafter continued to make payments between the period from 2014 to 2015. The complainants also entered into MOU on 31/01/2015. The complainants have contended that on 19/01/2016 Agreement for Sale was executed between the parties and as per Clause no.50 of the agreement, the opponents were to give possession in the month of December, 2017. However, the opponents failed to handover possession of flat on one pretext or the other. Complainants have contended that, they continued to make payments as per the demand of opponents and till date they had paid a sum of Rs.51,75,573/- which also included all taxes and liabilities. Complainants were also asking for legal possession from time to time, but, the opponent no.1 avoided to handover possession and continued to extend the date from December, 2017 to December, 2018 and thereafter, December, 2019. The opponents also did not even complete the construction. Complainants later found that the building was incomplete and the amenities were also not provided. Complainants were, therefore, constrained to give legal notice to the opponent on 12/06/2019 and the same was also duly received, but, still the opponent neglected to handover the legal possession along with necessary occupation certificate as mentioned in the Agreement for Sale. Complainants, therefore, convinced that, they were not going to get the possession of the flat and further, opponent nos.1 and 2 had also committed deficiency in service as provided u/sec.2(1)(g) and unfair trade practice u/sec.2(1)(r) of the Consumer Protection Act, 1986 and so the complainants have instituted the present complaint with a prayer to direct the opponents to handover legal possession along with occupation certificate and also to compensate the complainants for the delay in handing over possession by putting delayed charges at the rate of Rs.20,000/- per month and also the present complaint along with compensation and costs of litigation and so the present complaint.
(3) After filing of the complaint, due notices were issued to the opponent nos.1 and 2, but, the opponent nos.1 and 2 remained absent despite being duly 3 CC/19/703 served and also did not file written version, so the complaint proceeded without written version.
(4) We have heard Ld.Advocate for the complainants. We have also gone through the evidence affidavits filed by complainant no.1 as well as complainant no.2 and also gone through the documents placed on record.
(5) Ld.Advocate for the complainants has drawn our attention to the documents filed by the complainants on record. Complainants have placed on record the copy of Agreement for Sale which was executed on 19/01/2016 by the opponent no.1 - M/s.Aishwarya Avant Builders and particularly, the Clause no.49 of the Agreement for Sale which clearly stipulates that the Promoter shall give possession of the premises to the purchasers by December, 2017.
Further, the Ld.Advocate for the complainants has drawn our attention to the copies of the various receipts which are placed on record and that clearly go to show that the complainants had made the payment of entire amount of consideration as pleaded in the complaint. Further, the Ld.Advocate for the complainants has also drawn our attention to the copy of acknowledgement given by the opponent nos.1 and 2 regarding having received the entire amount towards the consideration of the flat booked by the complainants. There is also ample correspondence as well as papers on record which go to show that the complainants had not only made payment of entire consideration but were waiting endlessly for the possession of the flat, but, possession was not handed over and only assurances were made regarding handing over possession.
(6) Ld.Advocate for the complainants has also drawn our attention to the acknowledgement given by the opponents regarding having received the entire amount of consideration.
(7) It is submitted by the Ld.Advocate for the complainants that, since the 4 CC/19/703 complainants have not received possession of the flat complete in all respects along with occupation certificate, the complainants issued a legal notice dated 12/06/2019 to the opponents and the same was duly received by the opponents. But, despite receipt of notice the legal possession of the flat was not handed over along with occupation certificate. Complainants have also prayed that they had suffered acute harassment due to extreme delay on the part of the opponents in handing over possession and so the complainants were entitled for delayed charges at the rate of Rs.20,000/- per month from 01/01/2018 to 31/12/2018 and at the rate of Rs.30,000/- per month from 01/01/2019 till the actual possession is handed over.
(8) We have pointed out earlier that, the opponents have neither appeared nor filed their written version contesting the claim of the complainants and so, the evidence laid by the complainants has gone unchallenged. From the documents on record, namely, receipts of payment, copy of agreement for sale and other correspondence, it is clear that the complainants have made payment of entire consideration. It is also clear that opponent no.1 being a builder and promoter was also 'Service Provider' and so, the opponent nos.1 and 2 had committed 'deficiency in service as well as unfair trade practice' as defined under the Consumer Protection Act, 1986. Complainants were therefore clearly entitled for legal possession along with occupation certificate of the agreed Flat No.801 in 'A' Wing in Avant Heritage I, Jogeshwari East, Mumbai 400 060 and so we proceed to pass the following order:
ORDER
(i) Complaint is hereby partly allowed.
(ii) It is hereby declared that opponent nos.1 and 2 are guilty of deficiency in service and unfair trade practice under the provisions of Section 2(1)(g) and 2(1)(r) of the Consumer Protection Act, 1986.5
CC/19/703
(iii) Opponent nos.1 and 2 are directed to handover vacant possession of Flat No.801 in 'A' Wing in 'Avant Heritage I', described in the complaint, complete in all respects with car parking and occupation certificate, within a period of three months from the date of this order.
(iv) Opponent nos.1 and 2 are further directed to pay compensation for delay in handing over possession at the rate of Rs.20,000/- (Rupees Twenty Thousand only) per month from 01/01/2018 till the possession is handed over to the complainants.
(v) Opponent nos.1 and 2 are further directed to pay compensation of Rs.5,00,000/- (Rupees Five Lac only) towards mental agony and physical harassment and Rs.50,000/- (Rupees Fifty Thousand only) towards costs of litigation to the complainants.
(vi) Copy of this order be furnished to the parties.
Pronounced on 08th June, 2022.
[Justice S.P. Tavade]
President
[A.Z. Khwaja]
Judicial Member
emp
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