National Consumer Disputes Redressal
Melwyn Menezes vs M/S. Kamla Mahesh Developers & Anr. on 10 May, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 75 OF 2016 1. MELWYN MENEZES Resident at B-501, Versova Sree Darshan CHS Ltd., Sardar Vallabhai Patel Nagar, MHADA, Andheri (West), Mumbai - 400 053 ...........Complainant(s) Versus 1. M/S. KAMLA MAHESH DEVELOPERS & ANR. Registered Office at Shanti - Vimal, Pherozshah Mehta Road, Vile Parle (East), Mumbai - 400 057. 2. M/S. KAMLA MAHESH DEVELOPERS Corporate Office at Terminal - 9, Nehru Road, Vile Parle (East), Mumbai - 400 099. 3. MR. SUSHIL MANTRI, CEO&MD M/s. Kamla Mahesh Developers, Having Office at Terminal - 9, Nehru Road, Vile Parle (East), MUMBAI-400099 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER
For the Complainant : Mr. Pramod Kumar Parida, Advocate
: Ms. Kiran Vadher, Advocate For the Opp.Party : For Opposite party Nos.1 & 2 : Nemo
For Opposite Party-3 : Mr. Devesh Bhatia, Advocate
Dated : 10 May 2022 ORDER
1. Heard Mr. Pramod Kumar Parida, Advocate, for the complainant and Mr. Devesh Bhatia, Advocate, for the opposite party-3.
2. Melwyn Menezes, has filed above complaint, for directing M/s. Kamla Mahesh Developers (i) to complete construction, deliver possession and execute sale deed of Flat No.2403 (admeasuring 1800 sq.ft. a 3BHK flat), 24th Floor in the building "Atlantis" at Goregaon-Mulund Link Road, Mulund, Mumbai, after taking balance consideration of Rs.3660000/- or alternatively (ii)to handover any other flat in the same vicinity, equivalent to Flat No.2403 (admeasuring 1800 sq.ft. a 3BHK flat), 24th Floor in the building "Atlantis" at Goregaon-Mulund Link Road, Mulund, Mumbai, after taking balance consideration of Rs.3660000/- or alternatively (iii) to refund Rs.19296000/-, being present market value of the said flat as per Stamp Duty Ready Reckoner of Mumbai, (iv) to pay Rs.25/- lacs, as compensation for monetary loss, mental agony and harassment, (iv) Rs.one lac, as cost of litigation and (v) any other relief which is deemed fit and proper in the circumstances of the case.
3. The complainant stated that M/s. Kamla Mahesh Developers (the developer) was a company, registered under Companies Act, 1956 and engaged in the business of development and construction of residential and commercial building and selling it unit to the prospective buyers. The developer launched a project of group housing in the name of "Atlantis" at Goregaon-Mulund Link Road, Mulund, Mumbai, and gave attractive advertisement. The complainant booked a flat through a broker and consultant in "Atlantis" and deposited Rs.35/- lacs cash and Rs.1350000/- through cheque on 05.07.2012 and he was allotted Flat No.2403 (admeasuring 1800 sq.ft. a 3BHK flat), 24th Floor in the building "Atlantis" at Goregaon-Mulund Link Road, Mulund, Mumbai, for Basic Sale Price of Rs.14904000/- at the rate of Rs.8280/- per sq.ft. (out of total price, Rs.8594000/- was payable in cash and Rs.6310000/- was payable through cheque). The complainant again paid Rs.3150000/- in cash and Rs.1300000/- through cheque on 11.07.2012. The developer issued Allotment Letter on 12.02.2012 in which payment of Rs.2650000/-, which was paid through cheque was mentioned. The complainant offered to pay balance of Rs.1944000/- payable in cash and requested to execute an agreement for sale, for the said flat but the developer did not give any heed. The complainant made various queries in respect of start of construction. The developer for the first time, in July, 2013, informed that construction would commence in September, 2013. Thereafter, the complainant made several queries about start of the construction but no reply was given. The complainant visited the spot on 17.01.2014 and found that construction was not started. Then he met the developer in its office, who informed that certain approvals were still pending as such the construction could not be started. The complainant received an email dated 05.04.2014 of the broker, stating that the developer had offered to buyback the flat. Mr. Dinesh, the broker, gave another email dated 11.04.2014, stating that he had meeting with the developer on 10.04.2014, who had given an option to buyback the flat and the amount of the complainant would be refunded with interest @12% per annum within 3 months. The developer wrote letters dated 09.10.2014 and 05.11.2014, giving an option to buyback the flat and return the money with interest @17% per annum and payment would be made up to February, 2015. The developer also gave a cheque of Rs.5/- lacs on 15.12.2014. The complainant lodged a complaint to Commissioner of Police, Mumbai through Embassy of India in Muscat against the developer. The complainant gave a legal notice dated 28.07.2015 to the developer, for returning Rs.9300000/- with interest @17% per annum, which was served on 05.08.2015. But the developer did not reply to the aforesaid notice. Then the complaint was filed on 21.01.2016, complaining unfair trade practice.
4. The opposite party-3 filed IA/8993/2019, for dismissing the complaint in view of the order of High Court in Commercial Suit No.524 of 2017. It has been stated that Monia Mabel Prema Rodrigues and others (the allottees) filed a suit (registered as Commercial Suit No.524 of 2017), before High Court of Judicature at Bombay against the developers, in respect of the project "Atlantis" under Order 1 Rule 8 Civil Procedure Code, 1908. During this period a Firm namely "M/s. Mahesh Developers" was constituted and entire project of "Atlantis" was transferred to it, who undertook to complete the project and give possession to the various allottees in terms of their allotment letters. The plaintiffs of the suit entered into a settlement dated 29.11.2017 with the Firm M/s. Mahesh Developers and its partners and agreed for giving time to the Firm for completing the project. Hon'ble High Court published notices in newspapers in accordance with Order 1 Rule 8(4) Civil Procedure Code, 1908, on 29.11.2017, in respect of settlement with the Firm. On publication of notice, the complainant and 16 other allottees of the flats in "Atlantis", filed their objection in the said suit before High Court and stated that allotment letters did not reflect full amount paid by them, inasmuch as substantial amount was taken in cash but it was not mentioned in the allotment letter. High Court vide order dated 30.10.2018, after hearing the parties held that deposit in cash was not proved. Payment shown in allotment letter would alone be taken as valid payment. The allottees were given liberty to give their option for refund within one month. If option for refund was given then the Firm was directed to refund. The Firm was directed to complete construction in terms of settlement dated 29.11.2017 and offer possession to the allottees. As the complainant had appeared before the High Court of Judicature at Bombay, in Commercial Suit No.524 of 2017 and his objection was specifically decided by the High Court, the complainant is bound by the order dated 30.10.2018. Otherwise also being an order in a representative suit, it is binding on all the persons who had same interest and the complaint is liable to be dismissed.
5. The complainant filed Affidavit in Reply to IA/8993/2019, on 13.08.2019, in which, the facts stated in the application were not denied. However, it has been stated that apart from the objection to the settlement, the complainant did not take part in the suit proceeding nor he was party to the settlement as such order passed by High Court does not affect, hearing of his complaint.
6. I have considered the arguments of the counsel for the parties and examined the record. A perusal of order dated 30.10.2018 passed in Commercial Suit No.524 of 2017, shows that the complainant had appeared in suit as an intervener and raised objection that allotment letter did not reflect full amount paid by him, inasmuch as substantial amount was taken in cash but it was not mentioned in the allotment letter. High Court vide order dated 30.10.2018, after hearing the parties held that deposit in cash was not proved. Payment shown in allotment letter would alone be taken as valid payment.
7. So far as reliefs in this complaint is concerned, similar reliefs have been made in Commercial Suit No.524 of 2017, which was a representative suit. The suit has been finally decided in terms of settlement dated 29.11.2017, by the order dated 30.10.2018. The order is binding upon all other persons similarly situated under Order 1 Rule 6, Civil Procedure Code, 1908. Explaination-1 to Section 11, Civil Procedure Code, 1908 provides that the suit which is decided first shall be treated as 'former suit'. As such it is immaterial that this complaint has been filed before filing of Commercial Suit No.524 of 2017. In view of a binding judgment of a Court of competent jurisdiction, the complaint, which is an additional remedy, cannot be heard on merit. The complaint is liable to be dismissed.
ORDER
In view of the aforesaid discussions, IA8993/2019 is allowed. The complaint is dismissed.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER