State Consumer Disputes Redressal Commission
Mr Sunil Govind Vichare vs M/S Ramdev Enterprises on 3 May, 2013
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/11/261
MR SUNIL GOVIND VICHARE
A-4 HIMACHAL CO-OP HSG SOCIETY LTD SEC 17 VASHI
NAVI MUMBAI - 400703
...........Complainant(s)
Versus
M/S RAMDEV ENTERPRISES
THROUGH ITS PARTNER
MR KISHORCHAND C. SOLANKI
L-32 APMC MARKET PHASE II VASHI NAVI MUMBAI
............Opp.Party(s)
Complaint
Case No. CC/11/262
MR SUNIL GOVIND VICHARE
A-4 HIMACHAL CO-OP HSG SOCIETY LTD SEC 17 VASHI
NAVI MUMBAI - 400703
...........Complainant(s)
Versus
M/S RAMDEV ENTERPRISES
THROUGH ITS PARTNER MR. KISHORCHAND CHIMANAJI
SOLANKI L-32 APMC MARKET PHASE II VASHI NAVI MUMBAI
............Opp.Party(s)
BEFORE:
HON'BLE MR. Dhanraj Khamatkar PRESIDING MEMBER
HON'BLE MR. Narendra Kawde MEMBER
PRESENT: Mr.Laxman
Thorat-Advocate for the complainant
Mr.Sanjay Mhatre-Advocate
for the opponent.
ORDER
Per Honble Mr.Narendra Kawde, Member These consumer complaints have been filed by the complainant-Mr.Sunil Govind Vichare separately alleging deficiency of service against M/s.Ramdev Enterprises for not delivering possession of the flats purchased by way of agreements. Even the correction deeds executed additionally between the parties also did not solve the problem in respect of number of flats and the area and no possession has been delivered so far. Aggrieved thereby, the complainant filed these consumer complaints claiming possession of the flats with 1050 sq.ft. & 1095 sq.ft. carpet area and direction to construct and complete the same or alternatively, another 2 BHK flats of the same area in the same locality with amenities as incorporated in the basic purchase agreements and, further, requested to pay interest @ 24% p.a. on the amounts already paid. Ancillary claim by the complainant is on account of costs of litigation in each complaint to the extent of `29,000/- and mental agony of `1,00,000/-.
Heard Mr.Laxman Thorat-Advocate for the complainant and Mr.Sanjay Mhatre-Advocate for the opponent.
Admitted facts are that the complainant executed two purchase agreements on 07/03/2011 for purchase of flats bearing no.405 on 4th floor and no.605 on 6th floor each admeasuring 588.791 sq.ft. carpet area excluding open/ attached terrace of 30 sq.ft. for the lump sum consideration of `21,60,000/- each. These agreements have been duly registered and attested by both the parties. Subsequently, it was noticed by the complainant that the area of the flats is shown smaller than what has been agreed to be purchased i.e. to say instead of 1050 sq.ft. & 1095 sq.ft. carpet area, area of the flats agreement was mentioned as 588.791 sq.ft. carpet. Therefore, on request of the complainant, Deed of Correction was also executed on 11/04/2011 in respect of each flat between the parties and came to be duly registered. The said Correction Deeds were duly attested by both the parties. The Deeds of Corrections separately were carried out to correct the number of flats actually sold, stating that correct flat Nos.405 & 605 in CC/11/261 & CC/11/262 are sold to complainants. There is no other correction whatsoever incorporated in the Deeds of Corrections.
An amount of `9,60,000/- towards each flat has been paid as a part consideration as against the agreed amount, which is admitted by the opponent. As per the approved development plan on record the area of each and every flat in the approved plan is less than 1050 sq.ft. as no flats of such dimension have been shown or approved by the authorities for the purpose of construction. Per square feet carpet area rate has not been mentioned either in the original agreements or in the Deeds of Correction.
The opponent/builder/developer contested the claim by filing written version in each complaint separately and also partially denied the claim of the complainant as made out in the complaints.
It is the contention of the opponent/builder/developer that at no point of time the bigger flat with carpet area of 1050 sq.ft. and 1095 sq.ft. was either promised or projected for sale and the stipulation in the original agreements dated 07/03/2011, clause 3(a) in each complaint supports their contention which says that the flat number originally agreed to be sold was on 4th floor bearing no.405 with carpet area of 588.791 sq.ft. in consumer complaint no.CC/11/261 and on 6th floor bearing no.605 with carpet area of 588.791 in consumer complaint no.CC/11/261. Later on, since there was a typing mistake in the agreements, the number of flats only were corrected from flat no. 605 to 405 in CC/11/261 & CC/11/262. Except that there is no correction whatsoever as alleged by the complainant was carried out in the correction deeds executed between the parties. Both the agreements i.e. original agreements and Deed of Correction s have been duly signed and attested by the complainant, which shows that he was fully aware of the contents of agreement and also Deed of Corrections.
On the contrary, the complainant has defaulted to make payment as per the stages of completion and defaulted so far by not making balance payment of `16,20,000/- as stated by opponents. Opponent even pursued by issuing letters and no positive response has come forward for payment of balance dues and only an amount of `5,60,000/- in each complaint have been paid by the complainant. Therefore, opponents have filed civil suit nos.527/2011 and 528/2011 before the Civil Judge (S.D.), Panvel for termination of the agreements executed between the parties as there is continuous default by not making balance payment by the complainant. Final verdict in the civil suits is awaited. There was no mention about the rate per square feet at any point of time nor as alleged by the complainant Mr.K. C. Solanki has promised to sell flats of 1050 sq.ft. & 1095 sq.ft. carpet area in the project on behalf of opponents.
Perused the files placed before us and also affidavit evidence filed by the parties. It is interesting to note that the agreement to purchase dated 07/03/2011 was executed and signed by both the parties. Yet on request of the complainant rectification deeds were also executed later on just to carry out correction in respect of number (i.e. numerical) of flats. No other corrections were incorporated as alleged by the complainant in respect of size or rate of the flats. It is the main contention of the complainant that the approved plan comprised part of registered agreement demonstrating size of flats as 1050 sq.ft. & 1095 sq.ft. carpet area. Therefore, the opponents were directed by this Commission to file approved copy of the construction plan. On perusal of the approved copy of the plan, typical floor plan, area of each flat as shown in the map nowhere shows the size of the flats as 1050 sq.ft. & 1095 sq.ft. carpet area. On perusal of the affidavit evidence of the opponent, contention of the opponent is fully supported in respect of approval of plan and size of the flats constructed. As against this, the complainant has not produced any documentary evidence contrary to the approved plan to disprove the size of the flats approved.
During the course of arguments, it was submitted by the Ld.Advocate of the complainant that since the complainant knows opponent very well, therefore, complainant reposed the trust without going through the contents of the agreements and Deed of Corrections carried out. However, this presumption cannot be said as valid legally as ignorance of knowledge cannot be an excuse. Agreements duly signed by the complainants, on each and every page and also was physically present at the time of registration of the agreement.
Not only this, when Deed of Corrections as requested by the complainant were carried out, even that time also the complainant did not notice any mistake in respect of correction that has been carried out. Therefore, principle of estopple restricts complainant to make grievance after thought. Therefore, no benefit whatsoever of ignorance can be availed by the complainant. We do not find any merit in the complaints. We hold accordingly and pass the following order:-
ORDER Consumer complaint nos.CC/11/261 & CC/11/262 stands dismissed.
In the given circumstances no order as to costs.
Pronounced on 3rd May, 2013.
[HON'BLE MR.
Dhanraj Khamatkar] PRESIDING MEMBER [HON'BLE MR.
Narendra Kawde] MEMBER Ms.