State Consumer Disputes Redressal Commission
Mr. Prashant Soni vs M/S. Kayjay Construction Co. Pvt. Ltd., on 7 June, 2013
THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA C.C. No. 16/2012 Mr. Prashant Soni Son of Chandubhai Soni Aged 45 years, Resident of 186, Ealing Road, Wembley, Middlesex, HAO 4 QD, UK Represented herein through his Power Attorney, Mr. Nandu Asrani, Son of Purushottam Asrani, Married, Aged 51 years, businessman, Resident of Spencer Cross Road, Bloomsbury Apts, Frazer Town, Bangalore 560 005. ..Complainant V/s. M/s. Kayjay Construction Co. Pvt. Ltd., A company incorporated under the Indian Companies Act, 1956, having its Registered office at No. 5, National House, 27, Raghunath Dadajee Street, Fort, Mumbai 400 001 represented by its Director Mr. Haresh Dyaram Kotwani. .Opposite Party C.C. No. 17/2012 Mr. Prashant Soni Son of Chandubhai Soni Aged 45 years, Resident of 186, Ealing Road, Wembley, Middlesex, HAO 4 QD, UK Represented herein through his Power Attorney, Mr. Nandu Asrani, Son of Purushottam Asrani, Married, Aged 51 years, businessman, Resident of Spencer Cross Road, Bloomsbury Apts, Frazer Town, Bangalore 560 005. ..Complainant V/s. M/s. Kayjay Construction Co. Pvt. Ltd., A company incorporated under the Indian Companies Act, 1956, having its Registered office at No. 5, National House, 27, Raghunath Dadajee Street, Fort, Mumbai 400 001 represented by its Director Mr. Haresh Dyaram Kotwani. .Opposite Party C.C. No. 18/2012 1. Mr. Maheshchandra Patel s/o. Mr. Mangubhai Patel, aged 54 years, married, and his wife; 2. Mrs. Arvinda Patel Aged 53 years, Both Residents of #10 Stradbroke Park, Tomswood Road, Chigwell, Essex, U K Both represented herein through their Power of Attorney, Mr. Nandu Asrani, Son of Purushottam Asrani, Married, Aged 51 years, businessman, Resident of Spencer Cross Road, Bloomsbury Apts, Frazer Town, Bangalore 560 005. Complainant V/s. M/s. Kayjay Construction Co. Pvt. Ltd., A company incorporated under the Indian Companies Act, 1956, having its Registered office at No. 5, National House, 27, Raghunath Dadajee Street, Fort, Mumbai 400 001 represented by its Director Mr. Haresh Dyaram Kotwani. .Opposite Party C.C. No. 19/2012 1. Mr. Nareshchandra H. Gohil s/o. Mr. Himatlal Gohil, aged 53 years, married, resident of 11 Woodcote Park, Avenue, Parley, Surrey CRB 3 ND, UK Represented herein through his Power of Attorney, Mr. Nandu Asrani, Son of Purushottam Asrani, Married, Aged 51 years, businessman, Resident of Spencer Cross Road, Bloomsbury Apts, Frazer Town, Bangalore 560 005. Complainant V/s. M/s. Kayjay Construction Co. Pvt. Ltd., A company incorporated under the Indian Companies Act, 1956, having its Registered office at No. 5, National House, 27, Raghunath Dadajee Street, Fort, Mumbai 400 001 represented by its Director Mr. Haresh Dyaram Kotwani. .Opposite Party C.C. No. 20/2012 Mrs. Mala Parekh Widow of late Kirit Parekh Aged 52 years, resident of Crown Cottage, High Street, Mill Hill, London, NW 7, 1QY, UK Represented herein through her Power of Attorney, Mr. Nandu Asrani, Son of Purushottam Asrani, Married, Aged 51 years, businessman, Resident o Spencer Cross Road, Bloomsbury Apts, Frazer Town, Bangalore 560 005 Complainant V/s. M/s. Kayjay Construction Co. Pvt. Ltd., A company incorporated under the Indian Companies Act, 1956, having its Registered office at No. 5, National House, 27, Raghunath Dadajee Street, Fort, Mumbai 400 001 represented by its Director Mr. Haresh Dyaram Kotwani. .Opposite Party C.C. No. 21/2012 1. Mr. Pankaj Chandrakant Amin s/o. Mr. Chandrakant Amin, aged 57 years, married, and his wife; 2. Mrs. Nayukta Pankaj Amin Aged 55 years, Both Resident of 21 Lawson Garden, Pinner, Middlesex, U K Both represented herein through their Power of Attorney, Mr. Nandu Asrani, Son of Purushottam Asrani, Married, Aged 51 years, businessman, Resident of Spencer Cross Road, Bloomsbury Apts, Frazer Town, Bangalore 560 005. ..Complainant V/s. M/s. Kayjay Construction Co. Pvt. Ltd., A company incorporated under the Indian Companies Act, 1956, having its Registered office at No. 5, National House, 27, Raghunath Dadajee Street, Fort, Mumbai 400 001 represented by its Director Mr. Haresh Dyaram Kotwani. .Opposite Party C.C. No. 22/2012 1. Mr. Pankaj Chandrakant Amin s/o. Mr. Chandrakant Amin, aged 57 years, married, and his wife; 2. Mrs. Nayukta Pankaj Amin Aged 55 years, Both Resident of 21 Lawson Garden, Pinner, Middlesex, U K Both represented herein through their Power of Attorney, Mr. Nandu Asrani, Son of Purushottam Asrani, Married, Aged 51 years, businessman, Resident of Spencer Cross Road, Bloomsbury Apts, Frazer Town, Bangalore 560 005. ..Complainant V/s. M/s. Kayjay Construction Co. Pvt. Ltd., A company incorporated under the Indian Companies Act, 1956, having its Registered office at No. 5, National House, 27, Raghunath Dadajee Street, Fort, Mumbai 400 001 represented by its Director Mr. Haresh Dyaram Kotwani. .Opposite Party Complainants are represented by Adv. Shri. V. Daniel. O.P. is represented by Adv. Shri. C.F. DSouza. Coram: Shri Justice N. A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 07/06/2013 ORDER
[Per Shri. N. A. Britto, President] These complaints can be conveniently disposed off by this common order.
2. By the present complaints, the complainants seek directions to the O.P. to complete the apartments/villas in the project Joia Do Mar situated at Porba waddo, Calangute, and deliver their possession to the complainants alongwith occupancy certificates, electricity connections, water connections and to execute sale deeds in respect of the same alongwith proportionate undivided right in the said project, and for damages.
3. The complainants are secretive about their identity. The complainants, we assume are foreign nationals, though some of them hold PIO cards, copies of which they have not placed on record. For the view we are taking, we may not insist on those details. The O.P. is a Company incorporated under the Indian Companies Act, 1956. Shri. Haresh D. Kotwani is its Managing Director and Shri. Kush H. Kotwani, his son, is a Director. Mr. Nandu P. Asrani is related to them and belongs to the same sindhi community.
4. The facts on record would show that the O.P. through the said Mr. Nandu P. Asrani sold to the complainants apartments/villas as per the details given in the table mentioned below. The said Asrani also purchased a flat for him and his brother and which is the subject matter of C.C. No. 19/2011 before the District Forum, North Goa at Porvorim.
The O.P. is a developer and builder.
The O.P. purchased land admeasuring 3325 sq.mtrs of survey No. 362/12 by sale deed dated 15/11/05 at Porbawaddo, Calangute and set up a project known as Joia Do Mar consisting of four blocks with twelve apartments each and four villas with three units each, in all about 60 residential units, in phase-I of the said project. The said apartments/villas were sold by the O.P. to the complainants through the said Mr. Nandu P. Asrani, on commission basis. In fact, it appears that the said Mr. Nandu Asrani was a broker who sold the said flats/villas to the complainants herein, on commission being paid by the O.P., and, now the complainants have filed the present complaints through him, as their attorney pursuant to powers of attorney given on different dates indicated in the said table below.
5. The complainants made initial payments to the O.P. even without signing a piece of paper, as indicated in the said table and only later was a letter of allotment given to the complainants. There is nothing on record to suggest that the payments were made by the complainants through the said Asrani or the allotment letters were given through him. According to the O.P., the said letter of allotment represents the agreement between the complainant/s on one hand, and the O.P. on the other hand. Superficially atleast, everything appears to have gone well, till the complainants insisted that the O.P. conveys through the sale deed the undivided proportionate right to the property in their favour.
No. of C.C. No. of flat/villa Dates of Letter of allotment Price Dates of receipt Date of notice Dates of Power of Attorney Dates of Complaints CC 16/12 Villa L 26/02/08 Rs. 43,64,600/-
Rs. 38,22,420/-
paid earlier 19/03/09 41,72,420 15/05/10 18/08/11 26/10/12 CC 17/12 C 21 26/02/08 Rs. 25,38,000/-
Rs. 22,07,100/-
paid earlier 19/03/09 25,22,400/-
15/05/10 18/11/11 26/10/12 CC 18/12 C 22 13/12/06 Rs. 34,19,292/-
Rs. 10,25,788/-
paid earlier 19/03/09 34,19,292/-
15/05/10 03/07/12 26/10/12 CC 19/12 A 23 13/12/06 Rs. 25,05,083/-
Rs. 7,51,765/-
paid earlier 19/03/09 24,99,532 15/05/10 26/08/11 26/10/12 CC 20/12 A 21 13/12/06 Rs. 23,72,733/-
Rs. 7,11,820/-
paid earlier 19/03/09 23,72,733 15/05/10 22/05/12 26/10/12 CC 21/12 Villa H 13/12/06 Rs. 54,60,600/-
Rs. 16,38,180/-
paid earlier 19/03/09 54,43,658 15/05/10 29/10/10 14/10/11 26/10/12 CC 22/12 C 24 13/12/06 Rs. 31,53,000/-
Rs. 9,45,898/- paid earlier 19/03/09 31,53,000 15/05/10 14/10/11 29/12/10 26/10/12
6. The O.P., in answer to the complaints, have claimed that they had obtained the occupancy certificate way back on 13/03/08 and the possession of the apartments/villas was handed over to the complainants in the month of June 2008 without receiving full payment. The O.P. has also stated that they had sent a draft copy of the sale deed to the said attorney and that they are willing to execute the sale deed after receiving all dues which they are entitled to including maintenance charges from 2011 to 2014 with interest thereon. It is their case that it is the attorney Shri. Asrani who was instrumental in introducing the complainants to the O.P. and the apartments were booked through him even before he was formally given power of attorney dated 16/05/11 (in C.C. No. 7/11) (in C.C. No. 16/12 the power of attorney is dated 18/08/2011). As already stated, it is their case that they had never agreed to sell proportionate undivided share in the land as can be seen from the allotment letters. The O.P. has raised issues of limitation and also that the complainants are not consumers. We have to address the said issues.
7. But before doing that, some observations are required to be made on the exact role played by said Shri. Nandu Asrani. Whose attorney was he?
7.1. The O.P. does not say on affidavit that Shri. Asrani was the attorney of the complainants at the time of booking of apartments. They seem to be taking advantage of what he has stated on affidavit, on behalf of complainants. The said Asrani in para 5 of his affidavit-in-evidence has stated that the complainants wanted to take up a place in Goa as a holiday home with an intention to come down to Goa during vacations and had conveyed their said intention to him as their power of attorney holder and that he had informed the complainants that there was an upcoming project of the O.P. at Calangute in the name of Joia Do Mar. The O.P. has tried to make capital of the said statement in para 5 of the affidavit. On behalf of the O.P., it is contended, on the basis of the said averments in para 5 that the said Nandu Asrani was the attorney of the complainants, at all times. On the other hand, on behalf of the complainants, reference is made to para 13 of the said affidavit wherein the said Asrani has also stated that during the year 2008, he was not the power of attorney for the complainants or for that matter of any of the purchasers in the said project of the O.P. 7.2. It is contended on behalf of the complainants, that the said Asrani become the attorney of the complainants only after execution of the powers of attorney on respective dates. The written version filed by the Managing Director of the O.P. Shri. Haresh D. Kotwani would show that the said Nandu Asrani received brokerage from the O.P. which was paid to him in the names of the family members as demanded by him.
The written version would further show that the said Asrani was representing the O.P. as booking agent on commission as can be seen on the basis of invoices. It is nobodys case that the said Asrani was paid any commission by any of the complainants. We do not know why the complainants have not corrected the avernments of para 5 of the affidavit of the said Asrani, although they had sufficient time to do so. The fact that the said Asrani sold the various apartments/villas to the complainants on commission received from the O.P. would make him the agent or attorney of the O.P. and not of the complainants. On the basis of averments of para 13 of the affidavit of Shri. Asrani (in C.C. No. 7/11) duly corroborated by the dates of powers of attorney, and the averments in para 1 of written version (in C.C. No. 16/12) and in the absence of any affidavit on behalf of O.P. saying that Shri. Asrani was the attorney of the complainants, it can be safely concluded that Shri. Asrani acted an agent or attorney of the O.P. in selling that apartments or villas to the complainants and not vice verse. There is nothing on record even to suggest that Shri. Asrani collected the money/cheques from the complainants and handed over the same to the O.P. or that the allotment letters were issued through him. Therefore, we conclude that Shri. Asrani became the attorney of the complainants from the dates he was given powers of attorney.
8. The O.P. has taken the plea of limitation, two fold. Firstly, by contending that possession of the villa or apartment was handed over to them in June 2008 and therefore the period of two years for filing the complaint in terms of Section 24A of the C.P. Act, has to be reckoned from June 2008. Certain observations are required to be made on this aspect. In this regard in our order dated 15/02/13 against which revision No.791/13 was filed before the National Commission and then dismissed as withdrawn, we had observed that, prima facie, the case of the complainants that possession of the apartments was not handed over to them had to be accepted and the case that possession was handed over in June 2008 needed to be rejected.Now, the said Asrani, in his affidavit-in-evidence, has categorically stated that he was not the power of attorney for the complainants or for that matter of any of the purchasers in the said project of the O.P. He has stated that no document whatever was signed either by him or any of the complainants for taking possession. He states that it is a blatant lie, as no specific date was mentioned by the O.P., who has kept vague June 2008 as date of alleged handing over possession. He has referred to email dated 03/10/08 by which the O.P. had indicated to the complainants the amounts which were required to be paid by the complainants. He has also referred to email dated 19/11/08 alongwith the attachment which required him to request the purchasers to take over the possession and to remit final payment due including maintenance, electricity charges and stamp duty with respect to the respective apartments/villas. He says that even on 13/12/10 he sent an email to the Directors of O.P. to show the apartments of various purchasers including that of the complainant to which the O.P. replied by email dated 15/12/10 stating that Mr. Khakhria (complainant in C.C. No. 7/11) may be asked to co-ordinate directly with them. It is therefore obvious that the statements made by the said Asrani in his affidavit-in-evidence coupled with the emails would show that no possession, as claimed by the O.P., was given to the complainants in June 2008 through the said Asrani. In fact, it has been submitted by the lr. advocate of the complainants that in case a particular date was indicated by the O.P. of June 2008 as the date of handing possession then it would have been possible to the complainants to prove that it was false by indicating that the O.Ps directors were in some other place on that date. It is their case that the date has been purposely kept vague. We find extremely difficult to believe that the O.P. would have handed over the possession to the complainants before receiving all their dues as contended on behalf of complainants. The O.P. has tried to confuse the entire issue. Did the complainants request the O.P. to hand over the key to the said Asrani? The record does not suggest to be so.
If at all any key was given to fix light and fans to the said Asrani, it must have been in respect of his own flat and not that of the other complainants and in any event, the other key had remained with the O.P., thereby retaining the control and possession of the flat/s/villas. Moreover, the said Haresh D. Kotwani has stated that one key of the apartment is with the attorney meaning thereby that other key is still with the O.P. and if at all one key was given to the said Asrani in the month of June 2008 it was for a limited purpose of fitting lights to his own apartment, the legal possession always remaining with the O.P. The draft sale deed given to the said Asrani, dated 01/02/2010, also does not reflect the fact that possession was given in June 2008. O.P. is a Company and could have acted only through one the said two directors. Admittedly no certificate of possession was given. In the absence of certificate of possession also, their claim that possession was handed over to Shri. Asrani in June 2008 on behalf of the complainants cannot be accepted. In other words the case of the O.P. that possession of the flats/villas was handed over to the complainants in June 2008 has got to be rejected as false.
9. On behalf of the O.P., an objection is taken that the complainants are not consumers. The complainants would not be consumers in case they had purchased the apartment/villas or got them constructed for resale or for commercial use. On behalf of the O.P., reference is made to Section 2(d) of C.P. Act which defines the expression consumer and reliance is placed on email dated 28/02/08 sent by the said Shri. Asrani, claiming that the said complainants had written to Shri. Victor Albuquerque, Managing Director of M/s. Alcon Victor Group asking whether he was interested in taking over about 60 units which they wished to run as a service apartment hotel. The said email also mentions that the buyers of apartments in other blocks would also give their apartments on rent and management and so the total could be 80 plus units. Further it mentions that there is a restaurant, lobby and adequate parking as well and in the case he is interested, he could be shown the project.
9.1. The contention of the O.P. is that the said email is crystal clear, explicit and reflects the intentions of the complainants as projected by their said attorney that the complainants had acquired the premises from the O.P. which they wished to run as a service apartments hotel and thus put to commercial use.
9.2. We are unable to accept the said contention. We have already concluded that Shri. Asrani was not the attorney of any of the complainants as on 28/02/08 and at that time he was acting as the broker and/or commission agent on behalf of the O.P. and if he had made the said offer to the said Shri. Victor he had made the same on his own behalf as a broker or on the behalf of the O.P. but certainly not on behalf of any of the complainants as he had no authority from them to do so as powers of attorney were given to him from the year 2010 onwards as can be seen from the table. Moreover, these complainants were not the owners of sixty units nor of the restaurant or lobby. There is nothing on record to suggest that the complainants had conveyed their intention either to the said Asrani or to the O.P. that they were inclined to give their flats/villas on rent.
10. However, there is another aspect which needs to be considered and that is with reference to CC Nos. 16/12 and 17/12 as well as 21/12 and 22/12. The complainants in these cases have purchased one apartment and a villa and the averments in the complaints are that the complainants wanted to take up a place in Goa as holiday home with the intention to come down to Goa during vacation. Lr. adv. of the complainants when questioned as to why the complainants had purchased two separate units namely a villa and a apartment, if they wanted to have a holiday home, lr. adv. of the complainants would submit that the complainants have a son and one daughter for whom they were purchased. This submission of lr. advocate has remained in the air, if we may say so, although the complainants had sufficient time to produce some proof in support of the same; but even if produced, the same would run contrary to the said averments in the complaints and/or the statements on oath in the affidavits-in-evidence, filed in support thereof. The very fact that the complainants purchased two residential units namely an apartment and a villa, would be sufficient for us to conclude that they had purchased the same either for resale or to rent out as they are residing elsewhere and not in this country. One does not know at all whether the complainants in these two sets of cases have a son or daughter and, if they have, which of them would be satisfied with a flat and the other with the villa. This Commission, therefore, is not the right Forum for them to agitate their grievances. We are fortified in our view by the decision of the National Commission in Satish Kumar G. Gupta vs. Shrusti Sangam Enterprises, 2012(2) CCC 3 369 wherein it was held that booking of two flats was relatable to business activity and hence for commercial purpose.
11. The second limb of argument on limitation of the O.P. is that the legal notices dated 15/05/10 sent by Adv. Shri. Pai were not acted upon within two years from the date of issue and hence the complaints are barred by limitation.
12. Section 24A of the C.P. Act requires a complaint to be filed before a Forum under the Act within a period of two years from the date of which the cause of action arises. Sub-section 2 of Section 24A also provides for condonation of delay and states that a complaint can be entertained by the Forum under the Act in case the complainants show sufficient cause for not filing the complaint within two years.
Contention of the O.P. is that the expression shall not admit a complaint, occurring in Section 24A of the Act is a legislative command which has got to be obeyed; there can be no second opinion about the same.
12.1. The complainants sent notices to the O.P. on or about 15/05/10 through their advocate, as seen from the table, calling upon the O.P. to deliver the possession of the apartment/villa completed in all respects with occupancy certificate, etc within 15 days from the date of the receipt of the notice failing which legal action would be taken against the O.P. The said notices were received by the O.P. and in C.C. No. 16/12 on or about 22/05/10. The said notices were not replied to nor complied with. The cause of action therefore in favour of the complainants, to file these complaints arose 15 days after 22/05/10 i.e on or about 07/06/10. On failure to meet the requirements of the legal notice/s. In other words, the period of two years began to run from 07/06/10. The complaints have been filed on the dates indicated in the table which are clearly beyond two years. Oral assurances cannot extend the period of limitation nor stop the time running out.
There are no applications filed for condonation of delay explaining the delay of more than 4 months for not filing the complaints within two years.
12.2. In SBI vs. BS Agricultural Industries, AIR 2009 SC 2210, the Apex Court has held that Section 24A debars any Fora set up under the Act, admitting a complaint unless the complaint is filed within two years from the date on which the cause of action has arisen. The Apex Court has further held that Section 24A is peremptory in nature and requires a Consumer Forum to see before it admits a complaint that it has been filed within two years from the date of accrual of cause of action. The Apex Court has further held that a Consumer Forum, however, for reasons to be recorded in writing, may condone the delay in filing the complaint if sufficient cause is shown. The expression, shall not admit a complaint occurring in Section 24A is sort of a legislative command to the Consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law the Consumer Forum must deal with the complaint on merits only if complaints have been filed within two years of the date of accrual of cause of action and beyond the said period, if sufficient cause has been shown, and delay condoned for reasons recorded in writing. In other words it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet the Consumer Forum decides the complaint on merits the Forum would be committing an illegality and therefore the aggrieved party would be entitled to have such order set aside.
12.3. The above decision has been subsequently followed in Kandimalla Raghavaih v/s. National Insurance Company 2013 (1) CCC 508.
12.4. In Raja Ram Maize Products, (2001)4 SCC 492, it has been held that once the workmen who reported for duty were not allowed to resume works; it was held, that the cause of action was complete; that they continued their efforts on each day to come back to duty would not render that cause of action a recurring one. Again, in Union of India vs. Surjit Kaur, 2007 (15) SCC 627 it was held that once the application for pension was rejected on merits in the year 1973, the claim for pension filed in the year 1995 was held to be barred by limitation. Applying the same ratio to the facts of these cases it can be said, that once the legal notices dated 15/05/2010 were not complied with within 15 days the cause of action was complete; the time to file the complaints began to run out. They had to be filed within 2 years therefrom.
Bare avernment that assurances were given thereafter for settlement, could not have stopped the time running out or otherwise make the cause of action a recurring one.
12.5. The complainants have not stated as to when the cause of action arose in their favour to file the complaints but the complainants have clearly averred that the O.P. received the notice but failed to reply or comply with the same. The complainants have pleaded that the cause of action is recurring. However, it can be seen from C.C. No. 19/2011 filed by Shri. Asrani that he pleaded that the cause of action arose on or about June, 2010 when the O.P. failed to comply with the legal notice dated 15/05/2010. That is the correct legal position such legal position could not have been differently pleaded in these cases. Mere assurances, if there were any, could not have extended the period of limitation, which began to run out on or about 07/06/2010.
13. In view of the above discussion, we have no other option but to dismiss the complaints as time barred under Section 24A of the C.P. Act, 1986. We fail to understand as to how the complainants parted with their money so easily, in lacs of rupees even without signing a piece of paper or an agreement for purchase of the flats/villas and even after having done so, did not even pursue the matter vigorously and allowed their claims to be barred by time. Is a slice of brand Goa so tempting that people are ready to throw away their money without the least caution expected of a consumer?
14. Complainants have no one to blame except themselves.
15. Complaints dismissed. Considering the facts there shall be no order as to costs.
[ Smt. Vidhya R. Gurav ] [ Justice Shri. N. A. Britto ] Member President