State Consumer Disputes Redressal Commission
Vijay Vazirchand Kapoor, vs Chowgule Real Estsate & Construction ... on 7 February, 2013
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI GOA C.C. No. 01/2008 Vijay Vazirchand Kapoor, E-13 Navelkar Elite City, Bainguinim, Goa 403402. ... Complainant v/s Chowgule Real Estsate & Construction Co. Pvt. Ltd., 311 Casa del Sol Opp. Goa Marriott Resort Miramar Panaji-Goa 403001, Through its Managing Director ... Opposite Party Complainant is represented by Adv. Shri. N.G. Kamat. O.P. is represented by Adv. Shri. U.G. Shetye. Coram: Shri. Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 07/02/2013 ORDER
[Per Justice Shri. N. A. Britto, President] The complainant, a MBA, a retired Sr. Citizen, a Technical Analyst of stock markets and resident of Karol Bagh, New Delhi on the basis of advertisements published on local news papers on 24/08/07 and 05/10/07 and promotional material on the O.Ps website and a broad verbal agreement, as he puts it, purchased from the O.P., a flat No. F4 in a building known as Nest, (it has 14 flats) in Chowgule Gardens, Zuarinagar for a basic price of Rs. 6.9 lacs and total price of Rs. 7.39.520 and occupied the same from 26/11/07 till 20/12/11 or thereabout and then moved into his new house constructed by him on a plot of land purchased by him at Navelkar Elite City, Bainguinim, Goa.
The letter of giving possession of the suit flat is dated 27/11/07 but the occupancy certificate came to be issued only on 13/12/07.
2. The written agreement between the complainant and the O.P. came to be executed on 2nd November 2007 and registered on the same day, though it is dated 23/10/07. The O.P. has explained, and in our view rightly, that the stamp paper for the execution of the said agreement was purchased on 30/10/07 and therefore the date 23/10/07 has got to be considered as wrongly entered therein. There is no dispute that the agreement was not executed or registered on 2/11/07.
3. The complainant filed the complaint on 11/02/08 and since then has amended it from time to time by his applications dated 19/03/2008, 5/08/08, 9/6/09, 28/5/12, 12/6/12, 4/7/12 & 19/07/12; not only that the complainant has changed his advocates three times and now feels that cost of all this should be borne by the O.P; not only that, the complainant also feels that the cost of the scooter purchased by him whilst in New Delhi, the cost of 4 bags purchased by him to travel to Goa, furniture purchased, and even the capital gains tax which he may be required to pay, should his complaint be allowed in toto, should be borne by the O.P. In this regard we are reminded of what the lr. National Commission had to say in Arun Khanna, 2012(4) CPR 191:
9. Before we conclude, we may add that it has become a practice for many complainants in the complaints to claim damages which has no co-relation with the loss suffered and these inflated amounts are stated with a hope that some amount would become payable. This a practice which must be discouraged.
4. From the time the possession was taken either on 25/26th November, 2007 there has been various complaints made of deficiencies in the suit flat on the part of the O.P. Deficiencies or defects were earlier pointed out by letter dated 18/05/08. Deficiencies have been pointed out by the Complainant in para 11 of his complaint and technical report dated 25/05/08 submitted by Arun Godashay of Age Consultants (at page 282) and it must be observed that the said report prima facie does not tally with the deficiencies pointed out by the complainant in the complaint. There is another report dated 02/06/09 of the same Arun Godashay (at page 630) and both the reports are supported by his affidavits. There is also a memorandum of inspection carried out on 16/12/11(copy at page 850) which reflects certain deficiencies, carried out by two lr. members of this Commission, as per order dated 27/07/11.
On the other hand, there are letters dated 23/04/08, 29/04/08, (at page 280, 281), 28/06/08 (at page 600), 09/12/08 (at page 425), 27/01/09 and 20/03/09 which show that the defects or deficiencies pointed out have been rectified by the O.P. Even after the Commissions inspection on 16/12/11, it was brought to the notice of the Commission on 28/08/12 by the O.P. that the defects or deficiencies internally were rectified by the O.P., a fact which was disputed by the complainant. The complainant seems to have even a dispute with the O.P. as regards his own name being wrongly recorded in the agreement for sale, when the complainant has mentioned the very name in the cause title of the complaint.
5. Be that as it may, the Complainant is no longer interested in the suit flat as the Complainant has already built another house at Bainguinim near Old Goa though the explanation given by him is that the suit flat has become unlivable. Besides seeking compensation under various heads and prayers of the Complaint, the Complainant now seeks an alternate flat to be given to him which has similar location, infrastructure, amenities, etc or compensation of 30 lacs plus compensation of Rs. 3000/- per day and damage of Rs. 1 lac. (subsequently reduced to 26 lacs with 18% interest)
6. On behalf of the O.P., it is submitted that even if there are presently any defects or deficiencies, they are prepared to rectify the same to the satisfaction of the complainant and execute a sale deed in favour of the complainant. In case the complainant does not wish to retain the suit flat, they say, that they are prepared to pay a reasonable price to the complainant so as to put an end to the controversy. The O.P. further points out that the technical report submitted by the Complainant on 25/05/08 shows that the defects or deficiencies pointed out by the said engineer could be rectified at the cost of Rs. 90,500/-. It is also not anybodys case that defects or deficiencies presently seen cannot be rectified. The Complainant had raised some grievances regarding the defect in title of the O.P. The complainant was furnished with all documents sought for by the complainant way back on 20/09/08 in response to the complainants application dated 22/08/08.
The O.Ps have now produced the NOC dated 29/06/04 issued on behalf of the Flag Officer commanding Goa Naval Area and in the light of that we see there is no impediment for the O.P. to execute the sale deed in favour of the complainant. In case the said NOC has expired, obtaining another would be a mere formality.
Since the complainant wishes to get out from a situation for which he is partly responsible, the only question would be how best to compensate him and fix the amount of compensation payable to the complainant by the O.P. to be paid to the complainant on returning or surrendering the suit flat to the O.P.
7. The O.P. in the written version itself filed on 21/04/08 had stated that they were ready and willing not only to return to the complainant the price of the flat paid by him and take back the flat but also pay him interest at the rate of housing loan interest normally charged by bank from the date of payment till the date of refund so that the complainant would not be put to any loss. Thereafter, on or about 18/12/12, Shri. Shetye, the lr. Advocate of the O.P. gave another offer to the complainant stating that the complainant was free to get a buyer to purchase the suit flat at the market value and they along with the complainant would join the purchaser as parties to the sale deed to be made in favour of such purchaser. This offer was not acceptable to the complainant. Shri. Shetye therefore made another offer to the Complainant that the Complainant should surrender the suit flat to the O.P. and they would refund to the Complainant the sale price with interest at the rate of 18% which offer was again not accepted by the complainant. At the time of final arguments Shri. Shetye, has submitted that the said offer to return the money of the complainant with interest at the rate of 18% still stands, though the same is on the higher side.
8. Before assessing the compensation payable to the complainant, certain observations would not be out of place. On what basis did the complainant expect the suit flat to be provided with teak doors? The sample flat or the mock flat which the complainant saw did not have any doors. The suit flat when the complainant obtained possession of the same which according to him was on 26th and not 27/11/07 as per certificate of possession, did not have such doors. According to the complainant the brochure exhibit 1.10 mentions that the flat would be provided with teak wood doors. Who gave the complainant the specifications of the flat at exhibit 1.7 produced by the Complainant? The complainant is silent. The said specifications provide that the doors and windows would be of hard wood and internally, flush doors. Likewise the agreement between the parties executed and registered on 2/11/2007 shows that the main entry door shall be of hard wood and all internal doors would be coated with veneer. In case the main door and other doors of the suit flat were not made of teak wood, one fails to understand as to why the complainant took possession of the suit flat?
That the front door was replaced by a teak door as reflected from letter dated 27/01/09 (at page 426) is entirely a different matter.
8.1. Clause 5 of the agreement between the parties would read as follows:
5. Defects:
a.
Upon the purchaser taking possession of the said residential premises, he shall have no claim against the developers cum vendors in respect of any item of work in the said residential premises which may be alleged not to have being carried out or completed. Cracks/dampness shall not be considered as defective work. Similarly, the developers cum vendors shall not be responsible for natural cracks developed in wood, colour/size variations in painting, flooring tiles, glazed tiles, any natural stones like marble, granite, any sanitary fittings, etc. b.
Subject to (a) above, any other defect noticed within 1 year of the possession and attributable to the developers cum vendors, shall be rectified by the developers cum vendors forthwith at its own cost.
8.2. Is not the complainant bound by the said clauses of the agreement? There is no dispute as already stated, that this agreement between the parties was executed and registered before the Sub-Registrar on 02/11/2007 after the complainant came down from Delhi to Mormugao. A draft of the agreement was sent to the complainant on 03/10/07. No doubt, the complainant did have some reservations about the draft agreement that it had some blanks, in the draft send to him. However, it is to be noted that the blanks pertained to names of the party to be written, the number of the flat to be entered, its area, the amount of consideration, etc. True, the complainant brought to the notice of the O.P. by letter dated 3rd October 2007 that the agreement was full of blanks. True, the complainant also stated that he will sign anything that the O.P. makes him to sign but it would be under protest and without prejudice.
After perusing the draft agreement, nothing had prevented the Complainant, to have either filled in the blanks and sent the agreement duly completed to the O.P., to be typed fair and got ready for execution. Nothing prevented the complainant from suggesting any changes to any of the clauses of the draft agreement which he was not agreeable to or to which he had some reservations. Nothing also prevented the complainant that in case any of the clauses were against his interest to call upon the O.P. to change the said clauses which according to him were not as per the broad verbal agreement, of which nobody knows the date or the terms. The complainant also had a choice not to execute the agreement or could have refused to execute the same and asked for the refund of the money paid by him.
8.3. The O.Ps witness Shri. Nagrekar was cross examined by the complainant, on the said agreement, and he stated to question No. 51 and onwards that the draft agreement was sent to the complainant and he was requested to peruse the same and the complainant has willingly signed the final agreement only after perusing it. The final agreement was printed on the stamp paper only after the complainant perused the same and the complainant has willingly signed the final agreement only after perusing and understanding it.
The original copy was immediately provided to the complainant after completing the registering formalities.
The contents of the said email (dated 03/11/07) were an afterthought by the complainant.
8.4. As already stated, the complainant was free not to sign the said agreement or ask for its clauses to be changed in case he did not agree to any of them.
The complainant cannot wriggle out from the said agreement on the specious plea that he signed on the doted lines. The mere fact that the parties to the agreement did not put their thumb impression or for that matter photographs before the Sub Registrar would not make the said agreement invalid. The complainant had the draft agreement with him for almost a month and could have always suggested any changes in case he so desired in case the draft agreement was not as per his so called broad oral agreement. The complainant is not an ordinary consumer but a consumer having an MBA degree to his credit and financial acumen of earning profits on his investments upto 300% as stated by him in one of his letters dated 04/11/07. The complainant could have refused to sign the agreement, as he did with the sale deed, sent to him by letter dated 14/12/12. On facts of this case, and in view of the agreement executed on 2/11/07, the ratio of Mrs. Veena Khanna vs. Ms. Ansal Properties and Industries Ltd (order of the National Commission dated 9/7/07 in FA No. 155/2006) or for that matter the case of M/s. Madan Builders vs. R.K. Saxena (order dated 5/12/08 of the N.C. in FA No. 411/2004) is of no assistance to the case of the complainant.
9. The agreement between the parties clearly mentions that the suit flat has super built up area of 60 sq.mtrs. Engineer Shri. A.F. Godashay makes no mention of the area of the suit flat in his report given consequent to his visit on 25/05/08. Why? But on his report consequent to his visit on 2/6/09, he gives built up area as 57.47 sq.mtrs but that is of flat of the 2nd floor and not of the flat of the complainant. One also fails to understand on what basis he opined that block board doors were provided inside the flat, instead of teak doors. Did he care to read the agreement or the specification before giving his opinion? His report on the area of the flat cannot be accepted. As can be seen from the photograph (at pg. 387) there is more than sufficient space for parking - 14 cars of 14 flats - only thing is that the area may be required to be demarcated for the purpose of parking of each car. The photographs of the three plug point near water tap in the kitchen (at page 675) cannot be certainly considered as hazardous and life threatening, as sparks do not flow out from a three point plug. It can always be kept plugged, if not in use.
10. Now, coming to the compensation payable, it can be seen that the complainant has built a new house at Bainguinim costing about Rs. 24,90,830/- having an area of about 133.70 sq.mtrs as per the occupancy certificate and the letter of the Asst. Engineer, PWD on record. In our view, since the complainant does not wish to retain the suit flat, whatever might be the reason, on condition that he is adequately compensated and the O.P. also does not disagree, we are of the view that the complainant can be adequately compensated by ordering the refund of price paid by him of Rs. 7,39.520/- with pending and future interest at the rate of 18% from 04/10/2007 until payment.
One cannot forget that the Complainant has used the flat for living for almost four years and the interest ordered to be paid is double the current rate of interest. The O.P. has shown that the sum of Rs. 46,000/- has already been refunded to the Complainant. The complainant would be entitled to take away the improvements made or fittings fixed by him. In addition the O.P. will pay to the complainant a sum of Rs. 3 lacs by way of compensation for inconvenience, mental tension, etc undergone by the complainant plus cost of Rs. 10,000/- of this complaint. Whilst fixing Rs. 3 lacs as compensation we have taken into account that some other minor amounts may be required to be refunded to the Complainant.
The above payments shall made by the O.P. to the complainant on accepting the surrender of the flat by the complainant to the O.P. Considering the facts of the case, in our view, the compensation ordered to be paid would be a fair return on the investment made by the complainant in the suit flat. Complaint shall accordingly be disposed off. This order is to be complied within 30 days.
[Smt. Vidhya R. Gurav] [Justice Shri. N. A. Britto] Member President