State Consumer Disputes Redressal Commission
Mr Dinesh Laxman Patel vs Mr Mukesh Makandas Mehta on 18 December, 2015
CC/11/305 1/5
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint Case No. CC/11/305
Mr.Dinesh Laxman Patel,
1203, Silver Court, M.G.Road, Ghatkopar
East, Mumbai 400 077. ...........Complainant(s)
Versus
1. Mr.Mukesh Makandas Mehta
Karta/Manager and also as
Mukesh Makandas Mehta (HUF)
14, Kailas Chhaya, Rajawadi, Road No.3,
Ghatkopar East, Mumbai 400 077.
2. Mr.Mukesh Makandas Mehta (HUF)
14, Kailas Chhaya, Rajawadi, Road No.3,
Ghatkopar East, Mumbai 400 077.
3. Kailas Chhaya Co-operative Housing
Society Ltd. Rajawadi, Road No.3, Ghatkopar
East, Mumbai 400 077. ............Opp.Party(s)
BEFORE:
P.B.Joshi, PRESIDING JUDICIAL MEMBER
Narendra Kawde, MEMBER
For the Complainant:
Adv.Subodh Gokhale
For the Opp. Party: Adv.U.B.Wavikar for the opponent no.1 and 2.
Adv.V.A.Sonpal for the opponent no.3.
ORDER
Per Mr.Narendra Kawde, Hon'ble Member [1] The issue for our consideration is whether the complainant on the strength of letter of allotment for purchase of flat which later on involved complicated legal issues in view of changed policy of the government is entitled for possession thereof or otherwise.
[2] Opponent no.3 i.e. the Kailash-Chaya Co-operative Housing Society entered into unregistered Development Agreement with opponent no.2 on 28/02/2003 for vertical construction by loading TDR and FSI. The opponent no.1 and 2 obtained IOD from competent authority on 08/08/2005 which was valid upto CC/11/305 2/5 07/08/2006. Later on, commencement certificate [CC] dated 13/04/2006 was also obtained with validity date up 12/04/2007. Opponent no.1 was empowered by the opponent no.3 on the basis of power of attorney to act as a developer. Opponent no.3 thereupon submitted application for purchase and use of TDR on 19/03/2004. Govt. of Maharashtra by order dated 21/08/2004 issued guidelines thereby banning vertical expansion by loading TDR. The opponent no.1 failed to get renewal of the commencement certificate beyond the period of 12/04/2007. In the meantime, dispute arose between the opponent no.1 against 3. Opponent no.3 thereupon cancelled the development agreement by resolution dated 10/01/2010 and further resolved to demolish the existing building for the purpose of redevelopment. Resolution also empowered the opponent no.1, Mukesh M. Mehta, who was Hon.Secretary of the opponent no.3 and other two officers of the co-operative society for acting on behalf of the opponent no.3 for obtaining approval of the authority etc. [3] Opponent no.1 and 2 is made party in his individual capacity as karta [HUF], who has issued allotment letter to the complainant for sale of flat no.19 on 6th floor admeasuring 2294 sq.ft. for total amount of Rs.85,56,834/- and received down-payment for Rs.5,56,831/- lacs. Allotment letter is signed by the opponent no1 in his dual capacity as Secretary of the opponent 3 and karta of HOU for M/s.Mukesh M. Mehta. Therefore, for purpose of settlement of this dispute, we hold that Mr.Mukesh Mehta is one and the same person to deal with as one and the same opponent.
[4] Knowing fully, the opponent no.1 who is also representing opponent no.2 issued allotment letter for purchase of flat in the vertically proposed developed premises even then such a proposal was not to take off in view of changed policy banning vertical CC/11/305 3/5 development of the premises and received the advance of Rs.5 lacs from the complainant.
[5] Heard learned advocate Mr.Subodh Gokhale for the complainant, learned advocate Mr.Uday Wavikar for the opponent no.1 and 2 and learned advocate Mr.V.A.Sonpal for the opponent no.3. With the help of the advocates, we perused the voluminous record and documents relied upon by the parties.
[6] The facts enumerated in the para 2, supra, are not in dispute. In view of the changed policy of the government, the vertical development and project could not take off. Even for re- development project, no progress was in place. Dispute within the members of the society as against opponent no.1 arose. Opponent no.1 failed to take any steps from the date of obtaining commencement certificate even till today and only submission is that whatever amount was received from the individual proposed buyers has been transferred to the corpus of the opponent no.3. However, the statement is without supporting document. Learned Advocate Mr.Sonpal relied on the govt. guidelines dated 03/01/2009 issued under section 79(A) of Maharashtra Co- operative Societies Act, 1960 which prohibits Committee Members or their relatives of the society to work as developer. Therefore, the opponent no.1 who is member of the society and erstwhile office bearer is disqualified to work as developer. In view of this, he emphatically submitted that Mr.Mukund Mehta, who is member of opponent no.3 Co-operative Housing Society is disqualified to work as developer. We are fully in agreement with learned advocate Mr.Sonpal.
[7] Now, the issue of considering the prayer of the complainant for possession of the flat as detailed in letter of allotment is CC/11/305 4/5 required to be dealt with. On perusal of the foregoing facts and circumstances, it is impermissible to carry out vertical. Therefore, complainant's prayer seeking directions to the opponent no.1 and 2 for handing over possession of the flat is out of consideration for the obvious reason the project cannot take off in the present shape and if so it will be in violation of prevailing laid down policy of the Government. Only alternative open for the complainant is to wait and watch for clearance to take off redevelopment plan by demolishing the existing building. This is also an impossibility in view of the government guideline prohibiting the member or office bearer of the society to work as a developer. Opponent no.1 is a member of the society, who was at the crucial time of issuing the allotment letter was office bearer of the society of opponent no.3.
[8] Under the provisions of the Consumer Protection Act, 1986, Fora deal with deficiency in service or defect in the goods. Though, it was well within the knowledge of the opponent no.1 that the vertical development was not permissible, yet he ventured to issue allotment letter by accepting down-payment of Rs.5,56,821/- as against the agreed consideration of Rs.85,56,831/- for sale of flat no.19 in the vertically developed project; to honour the stipulations of allotment letter, which per se, amounts to rendering deficiency in service. Complainant made no alternate prayer for refund of the amount paid and sought the direction only for possession of the flat. It is pertinent to note that Consumer Fora are court of equities and to maintain the balance of equity for settlement of dispute. In this case, equity demands that opponent no.1 and 2 who have been using the amount of Rs.5,56,831/- for quite long time shall refund the said amount together with reasonable rate of interest. We are, therefore, of the view that for proper settlement of dispute, directions u/s.13(4) of the Consumer Protection Act, 1986 for granting the relief with reasonable compensation for mental CC/11/305 5/5 agony would meet the ends of justice by allowing the consumer complaint accordingly. In view of the aforesaid observations, our finding on the issue set-out for possession of the flat is negative.
ORDER (1) Consumer complaint is partly allowed with costs quantified to Rs.15,000/- [Rs.Fifteen Thousand only] to be paid to the complainant by the opponent no.1 and 2. (2) Opponent no.1 and 2 are directed to refund an amount of Rs.5,56,831/- [Rs.Five Lac Fifty Six Thousand Eight Hundred Thirty One only] with rate of interest @9% p.a. to the complainant from the date of filing i.e.14/11/2011 within a period of 45 days from today failing which 12% p.a. interest shall be paid till realization.
(3) Certified copies of the order be furnished to the parties forthwith.
Pronounced Dated 7th April, 2016.
[P.B.Joshi] PRESIDING JUDICIAL MEMBER [Narendra Kawde] MEMBER pg