State Consumer Disputes Redressal Commission
Mr.Sunil Keshavji Gala vs Shobhnath R. Pandey on 1 April, 2014
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. CC/12/292
Mr.Sunil Keshavji
Gala
R/at Gajlaxmi Building,
Old Bombay Road,
Thane (W),
Taluka & District
- Thane.
...........Complainant(s)
Versus
Shobhnath R. Pandey
Someshwar Builder
& Developers,
Someshwar Residency,
Ground Floor,
Plot No.161 &
161A, Sector No.10,
Kopra, Kharghar, Navi
Mumbai-410 210.
Taluka-Panvel,
District-Raigad.
(OTHER OFFICE
ADDRESS)
Someshwar Builder
& Developers
404, Grohitam Building, Plot No.14B,
Sector-19, Opp.APMC
Market No.II,
Vashi, Navi Mumbai - 400 705.
............Opponent(s)
AND
Complaint Case No. CC/12/293
Mr.Sunil Keshavji
Gala
R/at Gajlaxmi Building,
Old Bombay Road,
Thane (W),
Taluka & District
- Thane.
...........Complainant(s)
Versus
Shobhnath R. Pandey
Someshwar Builder
& Developers,
Someshwar Residency,
Ground Floor,
Plot No.161 &
161A, Sector No.10,
Kopra, Kharghar, Navi
Mumbai-410 210.
Taluka-Panvel,
District-Raigad.
(OTHER OFFICE
ADDRESS)
Someshwar Builder
& Developers
404, Grohitam Building, Plot No.14B,
Sector-19, Opp.APMC
Market No.II,
Vashi, Navi Mumbai -
400 705.
............Opponent(s)
BEFORE:
HON'ABLE MR. P. B.
Joshi PRESIDING MEMBER
HON'ABLE MR. Narendra Kawde MEMBER PRESENT:
Mr.R.C. Mishra, Advocate for the complainant.
Mr.Mukesh Ahooja, Advocate for the opponent.
-: ORDER :-
Per Shri Narendra Kawde, Honble Member Both these complaints were heard finally together as common question of facts and law is involved in both these cases and since parties are one and the same. The consumer complaints have been filed alleging deficiency in service against the opponent who is builder/developer since possession of the flats purchased by the complainant have not been delivered though the entire consideration had been paid. The complainant sought direction for execution of registered Sale Deed and physical possession of the flat Nos.1101 & 1102 together with compensation of `10 Lakhs for mental agony and `1 Lakh towards cost of litigation in each case respectively.
2. Opponent/builder-developer appeared and contested the claims of the complainant by filing written version in both the complaints separately.
Amongst other contentions, it is urged in the written version that the purchase of flats bearing Nos.1101 & 1102 is a resale transaction under development agreement separately executed with the complainant. Total five flats admeasuring 6240 sq.ft. collectively worth `1,67,50,000/-
(Rupees One Crore Sixty Seven Lakhs Fifty Thousand only) were agreed to be handed over to the complainant against development rights of certain leasehold plots. It is further submitted that the complainant is a builder/developer and having a firm as M/s.Atlantic Builders & Developers.
The complainant is not a bonafide consumer to knock the doors of this State Commission as he is not a consumer within meaning of Section 2(1)(d)(ii) of Consumer Protection Act, 1986.
3. We have heard Learned Advocate Mr.R.C. Mishra for the complainant and Learned Advocate Mr.Mukesh Ahooja for the opponent. Perused the record placed before us.
4. The complainant relied on two separate receipts of payment of `33,34,500/-
duly issued by opponent/builder-developer against sale of flat No.1102 in consumer complaint No.292/2012 and flat No.1101 in consumer complaint No.293/2012 against full and final purchase consideration. However, it was made clear across the Bar on behalf of the complainant that though the entire consideration has separately been paid and receipts are duly issued, no registered agreement whatsoever has been executed by the opponent/builder-developer. Besides this, Learned Advocate of the complainant did not come forward with any submission except arguing on failure of the opponent/builder-developer to execute registered sale deed and to deliver peaceful possession of both these flats.
5. Learned Advocate of the opponent has drawn our attention to the development agreement dated 13/04/2009 executed between the complainant and the opponent with certain arrangement to develop the leasehold plot taken over under the Tripartite Agreement bearing Nos.161 & 161A located at Sector-10, Kopra, Kharghar, Navi Mumbai, Tahsil Panvel, Dist. Raigad.
Copy of the registered development agreement is on record. The arrangement agreed between the parties i.e. complainant and the opponent for development of said leasehold plot has been spelt out in the development agreement (internal page-6) which stipulates that 50% of total F.S.I. of said plots assigned for development will exclusively belong to the opponent/builder-developer (complainant and his firm M/s.Atlantic Builders & Developers) and in their capacity as developers, they were authorised and entitled to sell, transfer, allot their shares of F.S.I. units in favour of any person or persons or purchasers and they were authorized to accept the sale price, deposit, directly from such transactions.
Complainant has simply denied without adducing documentary evidence.
6. Plot Nos.161 & 161A under Tripartite Agreement dated 15/01/2007 executed between CIDCO as First Part and Mr.Munga Bavalya Tamboli and Mr.Gopal Bavlya Tamboli, original licencee as Second Part and M/s.Someshwar Builders & Developers as New Licencee, Third Part was entered into and thus, the opponent has come into play to develop these leasehold plots.
However, due to paucity of fund, opponent/builder-developer approached the complainant and his firm for certain cash consideration.
7. This development agreement which is on record has not been controverted by the complainant. Further, our attention was also brought to further development that cropped up between the parties. On 08/07/2009 Deed of Cancellation-cum-Relinquishment of Development Rights was executed between the parties as the development agreement was not executable. In lieu of consideration that was transferred in favour of opponent, it was agreed to allot five flats in the development project admeasuring area of 6240 sq.ft. to the complainant herein by cancelling development agreement executed on 13/04/2009. Details of the flats have been elaborately mentioned in Para 1 of the Deed of Cancellation which can be summarized as below:-
1. Flat No. 901 Area - 1260 sq.ft.
2. Flat No. 1001 Area
- 1255 sq.ft.
3. Flat No. 1002 Area
- 1255 sq.ft.
4. Flat No. 1101 Area
- 1235 sq.ft.
5. Flat No. 1102 Area
- 1235 sq.ft.
Obviously, by way of Deed of Cancellation, these five flats were transferred against the consideration received under the Development Agreement by the opponent. Out of these five flats, flat Nos.901, 1001 & 1002 have been sold by the registered agreement to the different persons by the complainant and copies of the registered sale deed have been placed on record by the opponent.
8. The consumer dispute is now limited to alleged sale of flat Nos.1101 and 1102 allegedly to the complainant. Learned Counsel of the complainant did not make any submission whatsoever in respect of Development Agreement, Deed of Cancellation and exchange of five flats as barter since development agreement was not executed. Documents produced by the opponent on record which demonstrates that the transaction of alleged sale in respect of subject flats was business transaction and as per agreed arrangement between the parties. Having sold three flats out of five as narrated hereinabove, to different parties by registered agreements by the complainant, no convincing submission is coming forward in respect of subject flats bearing Nos.1101 & 1102 which apparently were part of business transaction between the parties. Having regard to the various documents entered into by the complainants firm and the opponent, it is evidently a business transaction that arisen between the parties to pass on 6240 sq.ft. area consisting of five flats in favour of the complainants firm for use of certain benefits incorporated in development agreement.
Complainant is silent about the amount received in respect of each flat at the rate of `33,34,500/-, which was has already refunded by the opponent at later date as explained hereinafter. The complainant failed to lead any evidence in support of his contention that the alleged sale transaction was a bonafide one in his capacity as a consumer. It is disclosed by way of affidavit by Shri Mahadevlal Nathuji Jat, Broking Agent that certain amount was paid by way of refund to the complainant and his father which is tentatively estimated to `70 Lakhs in his presence. This affidavit relied upon by the opponent in support of opponents contention is not controverted.
9. On going through the record and documents, there is sufficient reason to believe that transactions that have taken place between the complainant and the opponent, we find that subject flat Nos.1101 & 1102 were given as business arrangement under development agreement which could not be taken forward. As a consideration, the amount received by the opponent was later on refunded to the complainant. Receipts dated 29/05/2012 duly signed by the complainant in respect of flat Nos.1101 & 1102 amounted to `41,99,000/- for each flat received as full and final payment.
This is conclusive proof to show that the opponent had refunded these amounts in respect of each flat separately by cancelling the earlier allotment of these flats to the complainant.
10. Interestingly, complainant failed to bring forth document to disprove issuance of receipts in token of hefty amount received as cost of each flat.
Transaction to refund amount with premium shows that the earlier transaction of alleged sale nullifies the stand of the complainant. Copies of receipts are available in the complaint compilation. Earlier original receipts for `33,34,500/-
as stated by the opponent were taken into possession for cancellation and the new receipts refunding amount with premium of `41,99,000/- for each flat are submitted on record, with no denial by the complainant by adducing documentary evidence.
11. While considering this case in its entirety and going through the documents available on record, we are of the opinion that the transaction in respect of flat Nos.1101 & 1102 is not a genuine sale from a service provider to the consumer, but it is part of commercial deal reached between the parties and the complainant has failed to disprove the contention raised on behalf of the opponent to establish that complainant as a bonafide consumer.
Complainant has concealed this vital information though it was well within his knowledge as Development Agreement and Deed of Cancellation has been duly attested by the complainant, which are notarized documents. We feel that the complainant has filed these consumer complaints with unclean hands and certain vital information has not been brought to the notice of the State Commission even in affidavit evidence. It is settled principle that bonafide consumers can knock the doors of Consumer Foras for redressal of their grievance. However, in the case on hand, we have reason to believe that complainant obviously filed these consumer complaints with malafide intention to invoke jurisdiction of this Commission for wrongful reasons though it was within his knowledge that transactions in respect of flat Nos.1101 & 1102 have been a part of commercial transaction between the parties. In view of this, we hold that the complainant is not a consumer and opponent a service provider. Therefore, both the consumer complaints are liable to be dismissed summarily.
Hence, we pass the following order :-
-: ORDER :-
1. Consumer Complaint Nos.292 & 293/2012 are dismissed.
2. Parties to bear their own costs.
3. Copies of the order be furnished to the parties.
Pronounced Dated 1st April 2014.
[HON'ABLE MR. P. B. Joshi] PRESIDING MEMBER [HON'ABLE MR. Narendra Kawde] MEMBER dd.