State Consumer Disputes Redressal Commission
Pradip Sitaram Shelte & Ors vs M/S.Joshua Estate Developers Pvt.Ltd. ... on 17 September, 2009
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI CONSUMER COMPLAINT NO.429/2002 Date of filing : 24/12/2002 Date of order : 17/09/2009 1. Pradip Sitaram Shelte A-406, Ramkrishna apartment Kedar chowk, Tembipada Road Bhandup, Mumbai 400 078 2. Jayan Radhakrishnan Nambiar 302 Sai-Sparsh Plot no.74A, Sector 19 Nerul, Navi Mumbai 400 706 3. Ashok Motiram Govalkar Type IIIA/10/118, RCF colony Chembur, Mumbai 400 074 4. Manickam Munian Type IIIA/10/112 RCF Colony, Chembur Mumbai 400 074 5. Leela Nambiar 11, Tejal Bhuvan N.P.Thakkar Road Vile Parle(E), Mumbai 400056 6. Nitin Uddhav Deshpande flat no.8, Torna Co-op.Hsg.Society Plot no.2A, Sector 15 Nerul, Navi Mumbai 400 706 7. Wilfrade G. DSouza 401 A, Silver Thread Vakola, Santacruz(E) Mumbai 400 055 Complainants v/s. 1. M/s.Joshua Estate Developers Pvt.Ltd. Mukte Co-operative Hsg.Society Ltd. Near Panchwati Akshay Hotel Ambachi Road, Vasai (West) 2. Mr. P.K.Thomas Managing Director Mukte Co-operative Hsg.Society Ltd. Near Panchwati Akshay Hotel Ambachi Road, Vasai (West) 3. B.S.Menghe Type II/18/403 RCF Colonoy Chembur, Mumbai 400 074 4. Rajaram M.Sawant R.no.201, A wing Gulmohar Co-op.Hsg.Society Ltd. Pakhadi, Kharegaon Kalwa, Thane 400 605 5. Shri Sunil R.Batwalkar D-619, 2nd floor Shri Sai Kripa Co-op.Hsg.Society Ltd. Jui nagar, Sector 23 Navi Mumbai ..Opposite parties Corum: Shri S.R.Khanzode, Honble Presiding Judicial Member
Smt.S.P.Lale, Honble Member Present : Ms.Rutuja Ambekar-Advocate for the complainant L/o.O.P.nos.3, 4 & 5 in person.
None for rest of the O.Ps O R D E R Per Shri S.R.Khanzode, Honble Presiding Judicial Member
1. This consumer complaint is filed by the complainant under section 12(1)(c ) of Consumer Protection Act, 1986 (Herein after referred as Act for brevity). O.P.nos.3 to 5 are the promoters and office bearers of proposed Co-operative Housing Society, which was formed by the employees of RCF i.e. Rashtriya Chemicals & Fertilizer factory at Mumbai. Complainants registered themselves as the members of said proposed society, in order to participate in the scheme floated by it to secure tenements/flats from amongst the two categories of flats having area either 540 sq.ft. or 730 sq.ft. Said proposed society entered into an agreement with O.P.nos.1&2 for providing flats in a building constructed by O.P.nos.1&2 (Herein after referred as Builder and Developer) on CTS no.1061 (1) Hissa no.36 (Pt), Kanjurmarg, Mumbai. Each one of the complainants accordingly paid various amounts as per schedule at Annexure B of the complaint. However, said scheme could not be worked out and the builder submitted that all the members could not be accommodated in the scheme because of the change in Government policy. Considering the fate of the scheme, the complainants wanted to withdraw from the scheme and claimed back the amount shared by them, supra. The promoters O.P.nos.3 to 5 refunded some amount to few of the complainants, but the cheques issued for those amounts were bounced. Under the circumstances, this consumer complaint came to be filed inter-alia claiming relief to refund their amount along with interest and also claiming the compensation.
2. The builder and developer in spite of notice preferred to remain absent. They did not file any written statement. O.P.nos.2 to 5 (hereinafter referred as promoters) resisted the claim as per their written statement on record. They have not disputed the status of the complainants as well as amount paid by them as per Annexure B, supra. They entered into an agreement with the builder dated 17/2/1995. Later on, builder expressed his inability to complete the scheme as per the original plan due to change in the policy of the Government and communicated accordingly per his letter dated 10/10/1997. Thereafter, the promoters made their sincere efforts to get back the amount paid by each one of the complainants, which they have passed on to the builder. They are not guilty of any deficiency in service. In fact, it is they who are cheated by the builder.
3. We heard Ms.Rutuja Ambekar-Advocate for the complainants and O.P.nos.3, 4 & 5 in person. Rest of the O.Ps are absent. Perused the record inter-alia including rejoinder filed by the complainants, documents and affidavits in support of the pleadings.
4. As per the undisputed facts, complainants responding to the offer of the promoters, participated in the scheme with a view to get a flat of either of the description i.e.540 sq.ft. or 731 sq.ft. in the proposed society i.e.RCF Employees Co-operative Housing Society Ltd. They have, admittedly, contributed as per the statement at Annexure B of the complaint. The promoters accordingly entered into an agreement with the builder dated 17/2/1995 (Annexure A) to purchase/secure 52 flats for the members in a building to be constructed at CTS No.1061(1)Hissa no.36(Part) at Kanjurmarg, Mumbai. As per clause 13 of the said agreement, builder agreed to execute separate and individual agreement in respect of each flat as per the choice of the promoters regarding the area, to be purchased by particular Promoter (i.e.to say member as certified by the promoters) and to register those agreements. However, subsequently, the builder backed out from the scheme as originally proposed. Builder accordingly, communicated to the promoters per letter dated 10/10/1997. In those circumstances, each one of the complainants claimed back refund of the consideration paid by them to secure the flat.
5. Amongst O.P.nos.2 to 5, who are the promoters of the proposed society, supra, O.P.no.4 Shri Rajaram M.Sawant is a Chief Promoter, O.P.no.5 Mr.Sunil R. Batwalkar is a Secretary and O.P.no.3 Mr.B.S.Menghe is a Treasurer. They claimed to have refunded part of the consideration received from each one of the members by cheque, the details of which are mentioned in the complaint, but those cheques since bounced, complainants did not receive any refund of that claim amount. At the time of arguments, the promoters submitted that complainant no.7-Mr.Wilfrade G. DSouza had received back full payment of the amount paid by him while complainant no.3 Mr.Ashok Motiram Govalkar and complainant no.4 -Mr.Manickam Munian each one received 50% of the amount paid by them. However, there is no proof produced of such payment.
6. The complainants in effect hired the services of the builder, in particular, who agreed to execute the flats in favour of respective agreements relating to members of the proposed society as per the agreement dated 17/2/1995, supra. The promoters claimed that they have parted the amount to the builder received from each one of the complainants, but except this statement, there is no proof of such passing of the amount to the builder. Builder did not deny such statement since he did not participate in the proceeding.
7. Some allotment letters are on record issued by the builder in favour of some of the complainants e.g. letter dated 27/2/1995 issued to complainant no.1 Pat Sanstha and that letter of even date issued in favour of complainant no.2 Mr.Jayan Radhakrishnan Nambiar. Thus, we hold that not only the builder, but also the promoters are to be fastened with liability, jointly and severally, along with the builder to refund the amount of consideration paid by each one of the complainants.
8. Complainants are also entitled for compensation, besides the interest on the amount of refund, since they had to undergo a stress and tension of the failure of the scheme and non refund of the amount by the O.Ps, particularly, the builder. We find it proper and just to award compensation of Rs.5000/- to each one of the complainants on this count.
We hold accordingly and pass the following order:-
ORDER
1. Complaint is partly allowed.
2. O.P.nos.1 to 5 jointly and severally liable to refund the amounts mentioned in Annexure B i.e. Rs.46,000/- to complainant no.1 Mr.Pradip Sitaram Shelte, Rs.46,000/- to complainant no.2-Mr.Jayan Radhakrishnan Nambiar, Rs.58,000/- to complainant no.3 Mr.Ashok Motiram Govalkar, Rs.46,000/- to complainant no.4 Mr.Manickam Munian, Rs.51,000/- to complainant no.5 Mrs.Leela Nambiar, Rs.40,000/- to complainant no.6-Mr.Nitin Uddhav Deshpande and Rs.1,30,000/- to complainant no.7-Mr.Wilfrade G. DSouza @ interest @ 9% p.a. from the date of their respective payments as mentioned in Annexure B till their realization.
3. The amounts paid to those complainants, if any, by way of refund of the contribution paid, subject to proof thereof, be adjusted against the respective amounts of refund.
4. Annexure B of the complaint be a part of the award passed.
5. O.P.nos.1 to 5 jointly and severally pay compensation of Rs.5000/- to each one of the complainants, within 45 days from receipt of this order and failing which, this amount of compensation shall carry interest @ 2% p.a. per month from the date of this order till its realization.
6. Rest of the claim of the complainants which are not specifically awarded stands dismissed.
7. O.Ps to bear their own costs and pay Rs.5000/- as cost to each one of the complainants.
8. Copies of the order be furnished to the parties.
(S.P.Lale) (S.R.Khanzode) Member Presiding Judicial Member Ms.