State Consumer Disputes Redressal Commission
Mr C V Subramaniyen vs M/S Superior Builders on 27 January, 2016
CC/12/311 1/13
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint No.CC/12/311
1. Mr. C.V. Subramaniyen,
R/at Flat No.12/5, Mukand Society,
Gavanpada, Mulund East,
Mumbai 400 081, Maharashtra.
2. Ashwini Subramaniyen,
R/at Charlotte, North Carolina,
U.S.A., through her Power of attorney holder
Mrs. Usha Subramanian ...........Complainant(s)
Versus
M/s. Superior Builders,
Through their partners:
1. Mr.Laxman alias Kailash B. Khedkar,
R/at Flat No.1603/04, Shiv Shankar Tower,
Plot No.30, Sector 7, Airloli,
Navi Mumbai, Maharashtra.
2. Mr. Jagannath B. Khedkar,
R/at Flat No.1401/02, Shiv Shankar Tower,
Plot No.30, Sector - 7, Airoli,
Navi Mumbai, Maharashtra. ...........Opponent(s)
BEFORE: Mrs. Usha S. Thakare - Presiding Judicial Member
Narendra Kawde - Member
For the Advocate Ms.S.S. Sawant
Complainant:
For the Advocate Ms.Rashmi Manne
Opponent:
ORDER
Per Mrs.Usha S. Thakare, Hon'ble Presiding Judicial Member
1. Complainant-Mr.C.V. Subramaniyen and his daughter Ms.Ashwini Subramaniyen have filed present consumer complaint under Section 12 r/w. Section 17 of Consumer Protection Act, 1986 against M/s.Superior Builders through their Partners - Mr.Laxman alias Kailash B. Khedkar & Mr.Jagannath B. Khedkar by alleging deficiency in services and for adopting unfair trade practice.
CC/12/311 2/132. The facts giving rise to present complaint in short are as under :-
Complainant No.1 is a retired person. The complainant No.2 is residing at abroad. Hence, she has given power of attorney to her mother. The opponent-M/s.Superior Builder is a builder & developer doing construction work at different places. The complainants have agreed to purchase Row House No.1 in the building known as Friends Co-op. Hsg. Society Ltd., standing on Plot No.30, Sector-7, Airoli, Navi Mumbai, admeasuring 825 sq.ft. carpet area for total consideration of Rs.20 Lakhs on or about 18/02/1996. The complainants have paid booking amount of Rs.10,001/- by cash to the opponent. The complainants contended that at the time of booking opponents had shown the documents executed between the Friends Co-op. Hsg. Society Ltd., and M/s.Superior Builders. Allotment letter, agreement to lease dated 06/10/1994, agreement dated 03/01/1995, plans approved by the CIDCO authority, commencement certificate in the name of the society are shown to the complainants. Looking to the documents shown by the opponents, complainants got convinced and agreed to purchase the premises. The opponents were ready to execute the registered agreement and demanded further amount from the complainants. The complainants have paid amount of Rs.2,90,000/- by cash on 11/03/1996 vide receipt at Exhibit-3. The complainants have paid Rs.7,30,000/- under two cheques by receipts at Exhibit-4&5. Once again as per demand of the opponents, complainants had paid Rs.9,70,000/- to the opponents vide receipt at Exhibit-6. The opponents had executed an agreement on 01/04/1996 which is duly registered with the Sub-Registrar of Assurances, Thane-3 at Sr.No.971/1996 dated 10/04/1996. The complainants have paid total amount of Rs.20,00,001/- to the opponents. The complainants have paid the entire amount of consideration. The opponents/developers agreed to deliver possession of the premises on or before 31/12/1997. The opponents failed to hand over possession of the premises within stipulated time. The opponents have given reasons that due to dispute between the other flat owners and the builders in respect of CC/12/311 3/13 payment terms and other issues, the work of the said society building had been stopped. The opponents/builder have informed that they have filed petition in Hon'ble Supreme Court to get 1.5 F.S.I. and that matter will be decided within short time and accordingly they will get additional F.S.I. and they will likely to change the plan and structure and therefore, it will take some time to hand over possession. On inquiry opponents gave assurances and informed that problem would be sorted out shortly. Thereafter, opponents told that there is one more partner i.e. M/s.Mishra Builders & Developers involved in the said society building. It is also told that the flat owners of Friends Co-op. Housing Society Ltd. Have filed consumer complaint bearing Nos.09/2008 and 30/2008 before the Addl. District Forum, Thane against M/s.Mishra Builders & Developers who has to do final work of the building. M/s.Mishra Builders was not ready to finish final work and water and electric connection in the said Society and for that it would take more time and they are trying to give possession. Looking to the age of complainant No.1, complainants were not ready to wait. They have demanded vacant and peaceful possession of the premises from the opponents or in the alternate it was requested to return of the amount to the complainants as per prevailing market rate with interest @18% p.a. Notices were given to the opponents but of no use. It is alleged that the complainants have suffered loss due to opponents/builder. Opponents are guilty of malpractices, delay, defect, deficiency and negligence in rendering services of handing over possession of the premises to the complainant. Ultimately, complainants have filed present complaint and claimed possession of subject Row House. Alternatively, complainants have claimed refund of sum of Rs.20 Lakhs with interest @ 18% p.a. since 01/04/1996 till realization of amount. The complainant have also claimed a sum of Rs.22,66,000/- as damages, amount of Rs.5 Lakhs towards compensation and Rs.1 Lakh towards cost of the complaint.CC/12/311 4/13
3. Opponents/M/s.Superior Builders have opposed the complaint by filing written version and denied all the adverse allegations against them. Allegation of deficiency in service and unfair trade practice are denied in toto. It is submitted that the complaint is barred by limitation. The complainants failed to file delay condonation application and hence, it is not tenable. M/s.Mishra Builders & Developers who is a necessary party is not added in this complaint. The consumer complaint is not maintainable for non-joinder of necessary party. The complainants have paid only amount of Rs.7,30,000/- through two cheques. Rest of the amount was not paid by the complainants to the opponents. Sum of Rs.7,30,000/- was returned to the complainants through cheques after due termination of booking. Therefore, complainants are not entitled for claim. At present, development rights are not with the opponents. Said rights are with M/s.Mishra Builders. The complainants are well aware that from the year 2002 development rights have been taken away from the opponents and assigned to M/s.Mishra Builders. M/s.Mishra Builders are having physical possession over said row house. Therefore, complaint should have been filed against M/s.Mishra Builders. As per clause Nos.12 & 13 of the agreement for sale, the complainants are agreed that in case of refund, they will not claim any interest or compensation. The complainants are bound by clause Nos.12 & 13 of agreement for sale. The complainants cannot claim financial loss. Such relief cannot be claimed in a consumer complaint. The opponents have complied the obligation as per clause No.13 of agreement for sale and hence, there is no deficiency of service on their part. Amount of Rs.7,30,000/- was returned to the complainants through cheques but the complainants failed to encash the cheques with ulterior motive. As the development rights were assigned to M/s.Mishra Builders and thereafter, M/s.Mishra Builders had taken the work of further construction thereof under development rights with the opponents. Therefore, opponents cannot be held liable for not handing over possession of row house to the complainants, particularly, when they CC/12/311 5/13 have proved their bonafide by returning amount of Rs.7,30,000/- to the complainants. The flat purchasers/row house purchasers have to file complaint against M/s.Mishra Builders and not against the opponents. No liability under provisions of Consumer Protection Act, 1986 can be fastened on the opponents. There was no correspondence between the complainants and opponents since 1996 till 2012. The complainants were silent for the period of 16 years. They have invested their money for gain. The complainants are not genuine persons. They have not suffered any hardship. M/s.Mishra Builders are under obligation to obtain occupation certificate and to hand over possession of the flat or row house to the purchasers. Under all these circumstances, consumer complaint is not tenable and it is liable to be dismissed with costs.
4. It is admitted fact that the complainants have agreed to purchase Row House no.1 from the building known as Friends Co-op. Hsg. Society Ltd. from the project of the opponents for the total consideration of Rs.20,00,000/-. Agreement was executed between the parties on 1st April, 1996, which was duly registered with the Sub-Registrar of Assurances, Thane-3, at Sr.No.971/1996 dated 10.04.1996. According to the complainants they have paid amount of Rs.20,00,001/- to the opponents. Amount of Rs.10,001/- was paid by cash on 18/02/1996, amount of Rs.2,90,000/- was paid by cash on 11/03/1996, amount of Rs.2,10,000/- was paid on 11/03/1996 by cheque, amount of Rs.9,70,000/- was paid on 01/04/1996 by cash, amount of Rs.5,20,000/- was paid on 01/04/1996 by cheque. The opponents have admitted payment of Rs.2,10,000/- by cheque, payment of Rs.5,20,000/- by cheque but rest of the payment is denied. The opponents agreed to handover possession to the complainants on or before 31st December, 1997.
5. To substantiate the claim of possession, compensation and costs, the complainant Mr.C.V. Subramaniyen has filed his own affidavit.
CC/12/311 6/13Complainant no.2 - Ashwini Subramaniyen executed power of attorney on 29/03/2007 in favour of her parents, C.V. Subramaniyen and Mrs. Usha Subramanian, which is filed on record. The complainants have placed reliance on receipts of payment issued by the opponent, copy of notice issued by the complainants to the opponent no.1 through Advocate and copy of acknowledgement. To give the counter blow the opponent has filed on record affidavit of opponent - Mr.Laxman B. Khedkar. The opponents have placed reliance on reply notice dated 16/02/2013 issued to the complainants through Advocate, letter of termination and acknowledgement of the complainant.
6. Heard Ld.Counsel for both the parties and perused the written notes of arguments filed on record. Under these circumstances, following points arise for our determination and we record our findings for the reasons given below :-
Sr.No. Points Findings
1. Whether the complaint is barred by No
limitation?
2. Whether consumer complaint is bad for No
non-joinder of necessary party?
3. Whether the complainants have proved Yes
that opponents are guilty of deficiency
in service?
4. Whether the complainants are entitled Yes, as per final order.
for the reliefs? If yes, to what extent?
5. What order? As per final order.
REASONS:
As to Point No.(i):CC/12/311 7/13
7. The opponents have challenged the maintainability of the consumer complaint on the ground of limitation. Opponent Laxman alias Kailash Khedkar and Jagannath B. Khedkr are the partners of M/s. Superior Builders. It is urged that the complainants were completely silent since 1996 till 2012. The complaint is hopelessly barred by limitation. It is filed without any delay condonation application and therefore, not maintainable.
8. Ld.Counsel Ms. Sawant for the complainants has rightly urged that the consumer complaint is based on continuous cause of action and therefore, it is within limitation. The complaint is filed for claiming possession of Row House No.1 booked by the complainants with the opponents. Till today possession of the Row House is not handed over to the complainants. Therefore, they have filed consumer complaint for getting possession of their dreamed house. We do not find any merit in the arguments advanced on behalf of the opponents that the consumer complaint is barred by limitation. The claim of possession based on continuous cause of action. Therefore, consumer complaint is within limitation. It is not barred by limitation. As a result, we answer point no.(i) for determination in negative.
As to Point No.(ii):
9. The next point for our consideration is, whether the complaint is bad for non-joinder of necessary party. It is the plea raised on behalf of the opponents that the opponents have been removed and discharged from their responsibility of completing the construction work and the same was assigned to M/s. Mishra Builders and Developers. Today Builder and Developer is Mishra Builder for construction of Row House. Possession of the Row House is with M/s. Mishra Builders and Developers. The complaint should have been filed against M/s Mishra Builders and Developers and not against the present opponents. M/s. Mishra Builders CC/12/311 8/13 and Developers is not added as a party, who is necessary party, the complaint is bad for non-joinder of necessary party.
10. It is admitted fact that some flat owners of Friends Co-op. Hsg.
Society Ltd. have filed consumer complaint baring No.9 of 2008 to 30/2008 before the Additional District Consumer Disputes Redressal Forum, Thane, Navi Mumbai, against M/s. Mishra Builders & Developers through Proprietor - Mr.Ramdhari D. Mishra. It is the own case of the complainants that they came to know from the opponents that M/s. Mishra Builders and Developers was not ready to complete the final work and water and electric connection in the said society. Therefore, there is delay in handing over possession but the opponent is trying to give possession as early as possible. The flat owners have succeeded in consumer cases filed in Additional District Consumer Disputes Redressal Forum, Thane, which were filed against M/s. Mishra Builders and Developers. M/s. Mishra Builders and Developers had filed appeals before the State Commission bearing Nos.857 to 867 & 885 to 895 of 2008. The State Commission has passed the order against M/s. Mishra Builders and Developers. Being aggrieved M/s. Mishra Builders and Developers moved the Hon'ble National Commission. Petition filed by M/s. Mishra Builders and Developers before the Hon'ble Apex Court for Special Leave bearing No.24319 of 2009 is pending.
11. Some flat owners from building - Friends Co-op. Hsg. Society Ltd. might have filed consumer disputes against M/s. Mishra Builders. The agreement and the documents on record clearly establish that the complainants agreed to purchase Row House from the opponents and the opponents agreed to sell Row House No.1 to the Complainants. Agreement was executed by the opponents in favour of the complainants. The opponents have received amount of consideration from the CC/12/311 9/13 complainants. Said agreement is still in force. The evidence on record shows that the alleged agreement was terminated illegally.
12. It is the case of the opponents that the opponents were removed from the construction as the builder and developer in the year 2002. The opponents kept mum till 2013. The consumer complaint is filed in the year 2012. The Opponents are service providers in view of the agreement executed between the parties. It is not made clear when M/s. Mishra Builders was appointed and why the opponent was removed from work. Crucial question is, who appointed M/s. Mishra Builders for construction and development. These facts are not established on basis of documents. Facts are within knowledge of the opponent. Material documents are withheld by the opponents. We find substance in the arguments advanced on behalf of the complainants, that, services of M/s. Mishra Builders for further construction is sanctioned by the opponents and therefore, the opponents kept mum for long time.
Under all these circumstances, we are of the view that the consumer complaint is tenable against the opponents who are service providers. The consumer complaint is not bad for non-joinder of M/s. Mishra Builders. Executable order can be passed in this consumer complaint. M/s. Mishra Builders, is not a necessary party. As a result, we answer point no.(ii) for determination in negative.
As to Point No.(iii):
13. Now, the material question which is touching to the route of this consumer complaint is, whether the opponents are guilty of deficiency in service. Allotment of Row House to the complainants for consideration by the opponents is not at dispute. The opponents have admitted receipt of amount of Rs.7,30,000/- from the complainants towards consideration. But, they have denied receipt of total amount of Rs.20,00,000/-. Evidence CC/12/311 10/13 of Complainant - C.V. Subramaniyen on record shows that total amount of Rs.20,00,001/- is paid to the opponents. Evidence is supported by receipts of payments. Copy of receipt dated 18/02/1996 is on record. It is issued by Partner of M/s. Superior Builders. Said receipt discloses that on 18/02/1996 amount of Rs.10,001/- was received from the complainants at the time of booking of the Row House as booking amount. The receipt dated 11/03/1996 issued by partner of the opponent no.1 shows that amount of Rs.2,90,000/- was received from the complainants by the opponents in cash as part consideration towards Row House No.1. Amount of Rs.2,10,000/- was paid by cheque and receipt was issued on 11/03/1996 by partner of opponent no.1, which is not disputed. Receipt for the amount of Rs.5,20,000/- dated 01/04/1996 by cheque is not disputed. Receipt dated 01/04/1996 is for the amount of Rs.9,70,000/- towards consideration of Row House No.1. It was issued by Partner Kailash Khedkar in favour of the complainants.
14. It is to be noted that the complainants have issued notices to the opponents through Advocate on 07/05/2012. Independent notices were issued to both the partners. In those notices the above mentioned payment on behalf of the complainants is duly disclosed. Notices were duly served to the opponents/partners on 14/05/2012 vide acknowledgement dated 14/05/2012. By the alleged notices the complainants have claimed possession of Row House or alternatively the market value of premises, compensation of Rs.5,00,000/- and other expenses. The notices were not immediately replied by the opponents. The opponents for the first time issued notice to the complainants on 10/09/2012 and terminated the agreement. It is submitted in said notice that the opponents are terminating the agreement for sale dated 01/04/1996 for booking of Row House No.1 because Mishra Builders and Developers was appointed as developer in 2002 for said project. He is having development right in completing the construction work till possession for the said project/society. In said notice CC/12/311 11/13 it is further mentioned that the opponents are sending Rs.7,30,000/- by cheque dated 10/09/2012 to the complainants. It is very surprising to note that notice was received by the complainants on 11/02/2013. Cheque was received on 11/02/2013. Certainly said cheque was of no use to the complainants. It could not be encashed. The alleged notice of termination of agreement was duly replied by the complainants on 16/02/2013 through Advocate. In reply notice, all allegations are duly covered. The consumer complaint was filed by the complainants on 26/11/2012. Notice was served to the complainants by the opponent on 11/02/2013. Cheque dated 10/09/2012 was received on 11/02/2013, i.e. after filing of the consumer complaint by the complainants and after receipt of notice of the consumer complaint by the opponents. So called termination of agreement of sale by the opponents cannot be said to be a valid termination of agreement of sale. If really, the opponents were interested in cancellation of agreement for sale, the opponents should have acted diligently in the year 2002 when they were removed from construction work as per their submission. The opponents in pursuance of the agreement were supposed to give possession of Row House along with occupancy certificate and all facilities to the complaints on or before 13/08/2002. By notice dated 16/02/2013 the complainants through Advocate have informed the opponents that they have already filed consumer complaint against the opponents and the opponents should appear on 10/04/2013 and to follow the due procedure of law. It is nowhere explained by the opponents as to why they kept mum since 2002 till 11/02/2013. So also, it is not made clear that why the cheque dated 10/09/2012 was sent to the complainants on 11/02/2013. There is clear-cut violation of terms and conditions of the agreement.
15. The agreement was executed on 01/04/1996. Full amount of consideration was accepted by the opponents. No explanation by the opponents as to why the excess amount was received from the complainants. Notice issued by the opponents to the complainants is CC/12/311 12/13 totally silent about receipt of excess money and execution of the receipts. It appears that plea of termination of the agreement is totally concocted just with a view to create defence. The opponents should have proved their bonafides by depositing the amount of received consideration in the office of the Commission although the cheque issued by them could not be honoured. The opponents failed to follow the terms and conditions of the lawful agreement executed in favour of the complainants. They raised several difficulties before the complainants for not handing over the possession. As per agreement the complainants were required to receive possession from the opponents on 31/12/1997. Nothing is on record to show that there is any dispute between the opponents and M/s. Mishra Builders. The opponents failed to give lawful possession of Row House to the complainants in spite of receipt of huge consideration. Delay in handing over possession itself is a deficiency in service. The complainants have waited for their dreamed house since 1996 till today. Without any base the opponents have raised the defense that agreement of sale is terminated by sending notice which was served to the opponents after filing of the complaint. The cheque sent along with the notice was useless. The complainants have duly proved deficiency in service on the part of the opponents while rendering the services to the complainants. As a result, we answer this point for determination in affirmative.
As to Point No.(iv) and (v):
16. In view of answer to point no.(iii) the complainants are entitled for claim of possession of booked Row House No.1. The complainants have suffered mental pain and agony. They have booked Row House in the year 1996 and waited for possession. Ultimately they are forced to file the consumer complaint. The complainants are entitled for amount of Rs.5,00,000/- towards compensation due to mental pain, agony and financial loss. They were required to issue notice and to appoint lawyer to CC/12/311 13/13 file litigation. They are entitled for amount of Rs.1,00,000/- towards costs of litigation. As a result, we answer this point accordingly.
In view of answer to point nos.(iii) and (iv) we pass the following order:
ORDER
(i) Consumer Complaint No.CC/12/311 is partly allowed.
(ii) The opponents are hereby directed to handover possession of Row House No.1, Friends Co-op. Hsg. Society Ltd., G+2 storied, Plot No.30, Sector-7, Airoli, Navi Mumbai, to the complainants by completing the entire work of Row House within two months from the date of this order.
(iii) The Opponents are further directed to pay to the complainants a sum of Rs.5,00,000/- (Rupees Five Lakhs only) towards compensation and an amount of Rs.1,00,000/- (Rupees One Lakh only) towards costs of litigation.
(iv) The opponents are directed to pay above amount as per order within two months from the date of this order, otherwise, amount will carry interest @18% per annum from the date of this order till realization of the amount.
(v) One set of the complaint compilation be retained and rest of the sets be returned to the complainants.
Pronounced on 27th January, 2016.
[Usha S. Thakare] Presiding Judicial Member [Narendra Kawde] Member dd/ep