State Consumer Disputes Redressal Commission
Mr. Ameet Arjundas Israni And Others vs M/S. Bhumiraj Constructions And Others on 11 October, 2012
Daily Order
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/06/31
1. Mr. Ameet Arjundas Israni
2. Mrs. Meenal Ameet Israni
Both R/at:- 303-D, Galaxy Classidoe,
Opp. BMC Ward Office, Off M. G. Road,
Goregaon (West), MUMBAI - 400 104.
...........Complainant(s)
Versus
1. M/s. Bhumiraj Constructions
Off. At:- D-5/6, Big Splash,
Sector 17, Vashi,
Navi Mumbai.
2. Mr. Ashwin Prabhudas Vora
Partner of M/s. Bhumiraj Constructions,
Off. at D-5/6, Big Splash,
Sector 17, Vashi,
Navi Mumbai
3. Mr. Bhupendra Murji Shah
Partner of M/s. Bhumiraj Construction,
Off. at D-5/6, Big Splash,
Sector 17, Vashi,
Navi Mumbai
............Opp.Party(s)
BEFORE:
HON'BLE Mr. P.N. Kashalkar PRESIDING MEMBER
HON'BLE MR. Dhanraj Khamatkar Member
PRESENT:
Mr. Jehangir B. Gai, authorized representative of
the Complainants
Adv. Sameer Bhandari for the Opponents
ORDER
Per - Hon'ble Mr. Dhanraj Khamatkar,
Member This is a consumer complaint filed by the Complainants on 2/3/2006 against the Opponent alleging deficiency in service.
[2] Facts leading to this complaint can be summarized as under:-
The Complainants have booked a flat bearing No.2001 admeasuring 1249 sq. ft. in 'A' Wing in the project called 'Hermitage' to be constructed by the Opponents in Sanpada, Navi Mumbai. At the time of booking, the Complainants paid an amount of `21,000/- on 17/2/2005.
Consideration for the said flat was agreed at `34,65,000/-. The Opponents had issued a provisional allotment letter in respect of the flat on 11/4/2005. Thereafter, the Complainants made a payment of `1,79,000/- towards stamp-duty, registration charges and an agreement was registered with the office of Sub-Registrar on 4/8/2005. The Complainants approached a bank for borrowing a housing loan. The Complainants made following payments, the particulars of which are as under:-
"
Date Payments (Rs.) 17.02.2005 21,000.00 Booking amount 25.04.2005 69,300.00 Additional token amount 03.08.2005 4,29,700.00 Margin Amount before signing Agreement 03.09.2005 17,67,000.00 Payment as per Demand Notice 15.09.2005 6,58,250.00
-- do --
18.01.2006 4,15,800.00
-- do--
Total 33,61,050.00 "
[3] Thus, as against the agreed consideration of `34,65,000/-, the Complainants have paid to the Opponents, a part-consideration amount of `33,61,050/-. Apart from this, the Complainants have also made a payment of `1,00,000/- to the Opponents towards parking space. Thus, the Complainants have stated that they made 90% payment of the agreed consideration. However, it is the case of the Complainants that the Opponents unilaterally and arbitrarily terminated the registered agreement vide a letter dated 4/1/2006 by assigning flimsy reasons of outstanding dues of interest which is totally illegal.
[4] The Complainants submitted that the agreement for sale was executed and registered on 4/8/2005 which incorporates the terms and conditions of the payment schedule on internal page (07) thereof. However, there is no recital in the entire agreement that these terms would be operating retrospectively. The Complainants further stated that even the booking form signed by both the parties on 17/2/2005 is silent about the payment of installments or levy of interest on delayed payments for the period prior to execution of the agreement.
Similarly, provisional allotment letter is also silent on this point. The Complainants further contended that the Opponents have made alterations in the sanctioned plan and violated the provisions of Section-7 of the Maharashtra Ownership Flats Act, 1963. The Complainants contended that they were not in default of any of the installments as per the schedule of payment enumerated on internal page (07) of the suit agreement and have paid all the installments promptly and regularly. However, it is the case of the Complainants that the Opponents are raising a demand of interest on the so-called delayed payments for the period prior to the execution of the suit agreement. Clause (08) of the agreement in respect of interest was restricted only to delayed installments and could by implication be invoked only prospectively i.e. after signing the agreement and by any legal implication it cannot be made retrospectively applicable. Letter of termination dated 4/1/2006 is ante-dated and actually it was posted on 6/2/2006 and which is received by the Complainants on 10/2/2006. This shows the attitude of the Opponents. Opponents have issued five letters on 4/1/2006. First letter is in respect of demand for an amount of `4,15,800/- on completion of internal plaster and an additional amount of `3,11,850/- for completion of external plaster and also an additional amount of `1,73,250/- for brick-work and these amounts were demanded to be paid on or before 19/1/2006. Second letter of the same date paradoxically is of termination of the suit agreement. Even after alleged termination of the agreement, the Opponents have accepted from the Complainants, an additional amount of `4,15,000/-
on 20/1/2006 which makes the alleged termination inconsequential, waived and deemed to be withdrawn.
Considering this deficiency in service on the part of the Opponents, the Complainants have filed this consumer complaint seeking following relief:-
"
a. it be declared that the O.Ps. are guilty of Unfair/unethical Trade Practices and have committed breach of the provisions of Section 3, 4 and 7 of the Maharashtra Ownership of Flats Act and thus guilty of deficiency in service;
b. it be declared and Ordered that the Letter dated 04.01.2006 issued by the O.Ps. terminating the Registered Agreement dated 04.08.2005 in respect of the Suit Flat is illegal, arbitrary and amounts to deficiency in service;
c. it be further declared and ordered that the demand of interest on allegedly delayed payments for the period prior to execution of the Suit Agreement is also illegal, arbitrary and amounts to Unfair and Unethical Practice;
d. it be further declared and Ordered that the Suit Agreement dated 04.08.3005 executed and registered under Section 4 of the Maharashtra Ownership of Flats Act, is valid, subsisting and binding upon the O.Ps. and the termination thereof amounts to deficiency in service;
e. the O.Ps. be ordered to specifically perform the Suit Agreement and deliver possession of the Suit Flat to the O.Ps. within the stipulated period and with due compliances of the recitals therein;
f. the O.Ps. be further Ordered to pay damages and compensation to the Complainants to the tune of Rs.5,00,000/- with interest @ 12% p.a. for wrongful termination of the Suit Agreement, mental agony and harassment caused to the Complainants and for the wrongful acts amounting to deficiency in services;
g. the O.Ps. be restrained by an Order of permanent injunction from re-selling the Suit Flat or transferring, alienating or creating any third party interest therein;
h. the O.Ps. be restrained by an Order of permanent injunction from selling or alienating any of the flats under construction above 24th Floor of the building;
i. interim injunction in term of prayer 'g' and 'h' above be granted;
j. cost of the proceeding be provided for;
k. In alternate to prayers 'a' to 'f' above, and without prejudice, the complainants be awarded pecuniary reliefs as under:-
a. Refund of Rs.33,61,050/- with interest @ 12% p.a.;
b. Imbursement of Rs.1,79,000/- with interest;
c. Refund of Rs.1,00,000/- with interest;
d. Damages and compensation of Rs.15,00,000/- towards the differential amount required for fresh booking of a flat in the vicinity and inclusive of mental agony caused to them by wrongful termination and other arbitrary acts amounting to deficiency in service;
k. any other relief which this Hon'ble Commission may deem fit be granted in favour of the Complainants; "
[5] The complaint was admitted on 3/3/2006. An ex-parte ad-interim injunction in terms of the prayers was granted in favour of the Complainants and the said interim order was confirmed on 20/7/2006 till final hearing of the complaint after hearing both the parties.
[6] The Opponents have contested the complaint by filing their written version. However, in the written version as filed, the Opponents have admitted the fact that the Complainants had booked a flat upon making a token payment of `21,000/- on 17/2/2005. However, it is contended that at the time of booking itself the Complainant was given a schedule of payment at the time of signing the booking form.
The Complainants were told that they will have to make the payment of the amounts due as on the date of booking as per the schedule of payment within a period of one month. The Opponents further stated that at the time of booking twelfth slab of the building was in progress and the Complainants were given information that they will have to make payment as per the schedule of payment due for the twelfth slab. The Opponents contended that alongwith the said provisional letter, a demand letter dated 11/4/2005 was also sent to the Complainants demanding an amount of `23,69,850/- being amount due as per the payment schedule. In the allotment letter there is footnote stating that for the delayed payment interest @ 24% p.a. will be charged.
The Opponents contended that on 23/4/2005 they have send a demand letter on completion of thirteenth slab being amount of `24,39,150/-. The Complainants paid an amount of `69,300/- on 5/5/2005. Similarly, on 6/5/2005, the Opponents sent a demand letter for the installment due on completion of fourteenth slab being amount of `24,39,150/- and as the Complainants have not paid the amounts, the Opponents started charging interest on the delayed payment and sent a letter demanding interest of `1,21,544/-. Again the Complainants were reminded by a letter dated 21/5/2005. The Opponents had send a demand letter dated 25/5/2005 for `25,08,450/-. However, the Complainants have not made the payments. Again the Opponents send demand letter for `25,77,750/- on 11/6/2005 alongwith an amount of `1,43,536/- towards interest. Again a demand letter was sent on 2/7/2005 for `26,47,050/- and interest amount of `1,57,890/-. Again demand of `27,16,350/- was sent on 14/7/2005 alongwith interest of `1,66,633/-.
[7] The Complainants issued cheques for `1,29,000/-, `1,00,000/- and `1,00,000/- on 26/7/2005 drawn on Citi Bank and accordingly, the Opponents have issued the receipts. Agreement for Sale was registered on 26/7/2005. The Complainants were only assuring that they will make payment alongwith interest.
The Opponents have sent a demand for `23,56,650/- on 5/8/2005. The Opponents have admitted the fact that on 5/9/2005 the Complainants paid an amount of `17,00,000/-. On the same date i.e. 5/9/2005, the Opponents had issued a demand letter for `6,58,250/- towards the installments and an amount of `2,16,392/- towards interest to be paid within a period of seven days.
On 6/9/2005, the Opponent sent a summary of accounts demanding balance dues of `6,58,250/- towards the installments to be paid within a period of seven days. Also, it was mentioned that interest would be charged on delayed payment. On 14/9/2005, the Opponents issued a demand letter for `6,58,250/- towards the installment and `2,60,392/- towards the interest to be paid within a period of seven days.
The Opponents admitted that the Complainants made payment of `6,58,250/- towards the installment due. The Complainants have not paid payment of interest.
However, the Complainants agreed to pay the same. The Opponents became surprised to see a letter dated 19/9/2005 from the Complainants making demand about the document in which interest had been agreed upon to which the Opponents have replied suitably.
[8] On 7/10/2005, the Opponents wrote a letter to the Complainants demanding balance due of `2,16,392/- towards the interest and the Complainants started harassing the Opponents for withdrawing the claim of interest. On 17/10/2005, the Opponents had given a letter demanding balance due of `2,16,392/- towards interest. The Complainants vide their letter dated 19/10/2005 had denied the payment of interest of `2,16,392/-. The Opponents in their reply dated 26/10/2005 have demanded interest amount of `2,16,392/- to be paid within a period of seven days. On 5/12/2005 the Opponents made the final demand to the Complainants and made it clear that failing which the Opponents will be constrained to take such steps against the Complainants as may be advised.
On 26/12/2005, the Opponents sent a letter making demand for `2,50,177/- towards interest alongwith a statement of interest.
The Opponents vide their letter dated 4/1/2006 had demanded the amount for completion of brick-work, internal plaster, external plaster and the interest on the delayed payment alongwith a statement of interest. The Opponents admitted that a letter of termination dated 4/1/2006 was posted on 6/2/2006. The Complainants made a part-payment as per demand letter dated 4/1/2006 and the Opponents have issued a receipt accordingly.
[9] The Opponents further stated that on 21/2/2006 they have sent a letter asking the Complainants to collect a cheque for an amount of `33,61,050/-. The Opponents further stated that the Complainants have not relied upon the documents which are relied upon by the Opponents at Annexure 1, 2, 3, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 [colly], 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 36, 37, 38, 39, 41, 42, 45, 46, 47, 48, 49, 51, 54, 55, 57 and 58 [colly]. The Opponents have further stated that they have filed a civil suit bearing No.206 of 2006 before the Civil Judge Senior Division, Thane inter-alia praying for a declaration that the agreement for sale dated 4/8/2005 be declared as terminated. The Opponents tried to take a plea that case involves complicated questions of law and hence does not fall under the purview of the Consumer Protection Act, 1986. On these grounds the Opponents prayed that the complaint may please be dismissed as there is no deficiency or unfair trade practice on their part.
[10] The Complainants filed a rejoinder to the written version filed by the Opponents. Both the parties were directed to file their evidence on affidavits. Accordingly, on behalf of the Complainant, Mr. Ameet Arjundas Israni has filed his evidence on affidavit. Similarly, on behalf of the Opponents, Mr. Karan Arvind Dand, Marketing Manager has filed evidence on affidavit alongwith 59 exhibits. Both the parties have filed their respective briefs of written arguments.
[11] We heard Mr. Jehangir B. Gai, authorized representative on behalf of the Complainants and Adv. Sameer Bhandari on behalf of the Opponents. Perused the record.
[12] This consumer complaint has a chequered history. The Complainants as well as the Opponents have led a voluminous evidence to prove their respective contentions. Admittedly, the Complainants had booked a flat bearing No.2001 admeasuring 1249 sq. ft. in area in 'A' Wing on the 20th floor in the project called 'Hermitage' to be constructed by the Opponents by paying an amount of `21,000/-
on 17/2/2005. At page (49) of the complaint compilation, there is a booking form stating therein that the agreed consideration for the flat was `34,65,000/-, amount to be paid for the parking area, area of the flat and the booking amount. On behalf of the Opponents, one of the Directors has signed the allotment letter and in receipt of the booking form the Complainants have also put their signatures. At page (50) of the complaint compilation, there is a provisional allotment letter. It also states about the total consideration of the flat booked, amount received by the Opponents and it also states that this allotment is provisional and shall be confirmed on receipt of booking amount by a firm allotment letter or against for sale. The Opponents have also filed a copy of the booking form which tallies with the booking form filed by the Complainants. Alongwith this document there is a schedule of payment.
However, it is not with the booking form submitted by the Complainants. The Opponents failed to prove that alongwith the booking form this schedule of payment was accompanied. Further, the Opponents themselves have produced on the record the provisional allotment letter. It tallies with the allotment letter filed by the Complainant. At page (116) of the compilation the Opponents have filed a letter dated 11/4/2005 which states that the Opponents have completed the building up to twelfth slab and as per the payment terms agreed upon an amount of `69,300/- is payable on completion of twelfth slab. An amount of `23,00,550/- is still due from the Complainants which was due on completion of eleventh slab. Mentioned below was the status of the account of the Complainants. It shows a total receivable of `23,69,850/- and the Complainants were called upon to pay the amount on or before 26/4/2005. Below the letter there is a note to the effect that interest @ 24% p.a. would be charged on the delayed payments. As stated in the provisional allotment letter, the allotment is provisional and shall be confirmed on receipt of booking amount by a firm allotment letter or against for sale. Neither the Opponents nor the Complainants have produced on the record the final allotment letter. The Opponents have entered into an agreement with the Complainants on 4/8/2005. The Complainants have paid the amounts to the Opponents, as narrated earlier in paragraph (02) of the foregoing judgment and order.
[13] On perusal of the agreement, it is seen that there is a schedule of payment. However, the agreement is silent on the point that whether the terms are retrospectively applicable or otherwise. Even the booking form signed by both the parties is silent about the payment of installments or levy of interest on the delayed payments for the period prior to the execution of the agreement.
Even the provisional allotment letter is silent on the point. As per the agreement, the possession of the flat was agreed to be handed over to the Complainants in the month of December-2006. After the execution of the agreement, the Complainants are not in default in payment of installments. It is a fact that the Complainants have made nearly 97% payment of the agreed consideration amount. In the present case dispute is as to whether the Opponents can charge interest for the alleged delayed payment before entering into an agreement. It is the contention of the Opponents that at the time of booking the building was constructed up to twelfth floor and the Complainants were aware of the fact and alongwith the provisional allotment letter the Opponents have given a letter dated 11/4/2005 to the Complainants that an amount of `23,69,850/-
was due from the Complainants.
However, the booking form as well as the provisional allotment letter is silent about this particular aspect. Not only this but also the registered agreement does not reflect this fact.
The Opponents have issued a letter dated 4/1/2006 informing the Complainants that they are terminating the agreement dated 4/8/2005. It is the contention of the Complainants that though the letter is dated 4/1/2006 it was posted on 6/2/2006 and the Complainants received the same on 10/2/2006. Despite this alleged termination of the agreement, the Opponents have accepted from the Complainants an amount of `4,15,000/- on 20/1/2006 which proves that Opponents never intended to terminate the agreement. The Opponents had approached the Civil Judge Senior Division by filing a Special Civil Suit No.206 of 2006 for termination and cancellation of the registered agreement for sale dated 4/8/2005. Learned Civil Judge Senior Division has observed in his order 18/3/2011 as follows:-
"It is very surprising to note that the plaintiffs (the Opponents herein) not only went on issuing reminders to the defendants (the Complainants herein) for payment and accepting amount from them but they accepted an amount Rs.4,15,800/- from them on 18/01/2005 even after the date of termination of agreement.
Acceptance of payment from the defendants even after termination of agreement made disentitled to the plaintiffs from claiming interest on delayed payment......Admittedly the plaintiffs have no right to claim interest on delayed payments and it is not proved that the defendants have delayed the payments therefore, the demand of interest amount Rs.2,50,177/- is unconstitutional and against the terms of agreement"
With these observations, the Learned Civil Judge Senior Division dismissed the suit with costs.
[14] Learned Counsel for the Opponents relied upon the decision of the Apex Court in S. P. Chengalvaraya Vs. Jagannath whereunder Their Lordships of the Hon'ble Supreme Court condemned the efforts of a litigant to mislead the Court and play a fraud upon it in following words:-
"The Court of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of litigation. A litigant, who approached the Court, is bound to produce all the documents executed by him which are relevant to litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the Opposite Party."
[15] Learned Counsel for the Opponents had tried to argue that the Complainants have not come with clean hands and suppressed material facts. 45 documents which the Opponents have filed are the basis of termination of the agreement. Looking to the facts and circumstances of the case, we find that the authority/citation quoted by the Learned Counsel for the Opponents is not helpful to the case of the Opponents. The facts of the case prove beyond doubt that the Opponents are deficient in service.
[16] From the aforesaid facts it is proved beyond doubt that the Complainants have booked a flat with the Opponents and the Complainants have paid 97% amount of the agreed consideration to the Opponents. Neither in the booking form nor in the provisional allotment letter nor in the agreement the Opponents have stated that the building is completed up to twelfth floor and the Complainants have to make a payment of consideration amount as per chart given in the agreement and failing which the Complainants will be liable to pay the interest. Alleged termination letter issued by the Opponents is totally illegal and is against the provisions of law and equity. There is deficiency in service on the part of the Opponents.
As per the agreement, the Opponents were supposed to hand-over possession of the flat to the Complainants in the month of December-2006. Poor Complainants even in the year 2012 are without a shelter despite of the fact that they have made payment of 97% amount of the agreed consideration.
[17] Mr. Jehangir B. Gai, authorized representative of the Complainants relied upon the decision of the Hon'ble National Consumer Disputes Redressal Commission in Veena Khanna Vs. Ansal Properties and Industries Ltd. and Others ~ II-(2007)-CPJ-185-(NC), wherein the Hon'ble National Commission observed that Consumer Fora are not governed by adversary system procedure but, it is to hold inquisitional proceedings. Similarly, the Hon'ble National Commission in Distt. Manager Telephones, Patna and Another Vs. Dr. Tarun Bharthuar and Another ~ I-(1992)-CPJ-47-(NC); observed that the reliefs which a Consumer Forum can grant are specified in Section-14 of the Consumer Protection Act, 1986. As per Section-14(1)(d) of the said Act it is for the Consumer Forum to award appropriate amount by way of compensation to a consumer for any loss or injury suffered by him due to negligence on the part of the Opposite Parties. In other words, it is not mandatory or obligatory on the part of the Complainants to ask for a specific relief and the Consumer Forum is not debarred from granting a relief not prayed for by the Complainants in the complaint.
[18] Looking to the facts and circumstances of the case we are of the opinion that besides the relief of handing over the possession of the flat, the Complainants are entitled for the compensation for waiting for possession of the flat they booked in the year 2005 and not getting the possession till the year 2012 which was to be handed over by the month of December-2006 as per the agreement to sale. The Complainants had to face a mental agony nearly for six years. Considering the peculiar facts of the case a compensation of `5,00,000/- will met the ends of justice alongwith costs of the complaint. We hold accordingly and pass the following order:-
ORDER The complaint is partly allowed.
1. Upon receipt of balance consideration amount of `1,03,950/-
from the Complainants, the Opponents are jointly and severally directed to hand-over vacant and peaceful possession of a flat bearing No.2001, admeasuring 745.55 sq. ft. in carpet area (894.66 sq. ft. built-up area + 102 sq. ft. terrace) situated on the 20th floor in the Building known as 'Cupola A-Wing' in the project 'Bhumi Raj Hermitage' situated at Plot No.1 and 2, Sector-18, Sanpada (East), Navi Mumbai complete in all respects, within a period of two months from the date of receipt of balance consideration amount from the Complainants without charging any interest/penal interest for the delayed payment.
2. The Opponents are further jointly and severally directed to pay to the Complainants an amount of `5,00,000/- by way of compensation towards mental harassment and agony, within a period of two months from the date of this order and failing which the amount shall carry interest @ 12% p.a. till its realization.
3. The Opponents shall bear their own costs and shall pay costs of `50,000/- to the Complainants.
Pronounced on 11th October, 2012 [HON'BLE Mr. P.N. Kashalkar] PRESIDING MEMBER [HON'BLE MR.
Dhanraj Khamatkar] Member kvs