National Consumer Disputes Redressal
M/S Sagar Shopping Developers vs Anil Dattatrey Kadam on 1 May, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 281 OF 2013 (Against the order dated 12.10.2012 in F.A . No. A/11/787 of the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai) WITH IA/501/2013(STAY) M/s Sagar Shopping Developers Acting through its partner, Mr. Saddruddin Mohammed Maredia Having its office at Hotel Heritage Building, Sant Sauta Marg, Byculla (East), Mumbai 400 027 ........ Petitioner (s) Versus Anil Dattatrey Kadam Through his Constituted Attorney, Ms. Amita Laxmikant Hatkar, Residing at 24/P, Shefali Co-operative Housing Society Ltd., 62, Phirozsha Road, Santa Cruz (West), Mumbai 400 054 .Respondent (s) BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HONBLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mr. Vikram Mehta, Advocate For the Respondent/ Caveator : Mr. Sanjoy Kr. Ghosh, Advocate Pronounced on : 1st May 2013 ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1. The case of the complainant/respondent, Shri Anil Dattartray Kadam is that M/s Sagar Shopping Developers, OP is a developer/builder. The OP was constructing flats in Sagar Avenue-II and the complainant paid a cheque of Rs. 1,00,000/- as advance money and purchased flat bearing No. E-917, carpet area 451 sq. ft. @ Rs. 3400/- per sqare feet on 19.11.2005. Thereafter, the complainant gave other two cheques of Rs. 1,00,000/- each total being Rs. 3,00,000/- against the cost of the said flat. The OP issued a receipt for the same on 03.02.2006. The complainant asked the petitioner to execute the agreement but he put off the matter on one pretext or the other.
2. The construction of the building was commenced by the petitioner/OP as per the plans sanctioned by the Municipal Corporation of Mumbai. Thereafter, some disputes cropped up with the encroachers and purchasers of other building being Sagar Regency on 23.04.2004. Honble High Court vide its order dated 23.04.2007, directed the petitioner not to construct the said Sagar Avenue-II building within 15 feet from another building being Sagar Regency.
Consequently, the OP amended the plans of Sagar Avenue-II building. The construction of Sagar Avenue-II was required to be demolished and fresh plans were submitted for approval of the Municipal Corporation.
3. In view of the above mentioned circumstances, the OP returned the interim amount of Rs. 3,00,000/- of the complainant vide letter dated 26.07.2007, but the complainant refused to accept the same and returned it. Ultimately, the complainant sent a legal notice dated 17.07.2007 for execution of sale deed in respect of the above said flat. The said legal notice did not evoke any response.
Therefore, complaint was filed before the District Forum. The District Forum partly allowed the complaint. He directed the OP to execute sale deed in respect of flat measuring 451sq. ft. carpet area in Sagar Avenue-II @ 3400/- per sq. ft. within a period of 8 weeks from the receipt of the order passed by the District Forum and directed him to complete the incomplete work of the building project, if any.
4. The State Commission also dismissed the appeal.
5. We have heard the counsel for the petitioner at the time of admission of this revision petition. He submitted that the petitioner does not have any flat and the order passed by the District Forum cannot be executed. He also argued that no agreement was ever executed and the complainant is not bound by any agreement. It was argued that the project was not approved by the local authority and as such the OP cannot be held liable for the same. Again, there was no violation whatsoever of Maharashtra Ownershilp Flats (Regulation of the Promotion of Construction Sale Management and Transfer) Act (In short, MOFA) of 1963.
6. Instead of coming to the point, the learned counsel for the petitioner has tried to stretch the things a bit far. In the petition itself, the petitioner himself admits that a sum of Rs. 1,00,000/- was accepted towards tentative booking in the Sagar Avenue-II.
It is also admitted that the total sum of Rs. 3,00,000/- was obtained from the complainant. The petitioner did not enter in the agreement and as such he committed violation under the provisions of Section 4 of MOFA. The State Commission came to the conclusion that the project was sanctioned by the Local Authority in the year 2005 and permission was valid till 09.12.2007.
As per the Honble High Courts order mentioned above, it appears that the petitioner had encroached upon the property of another Builder. The Honble High Court had to interfere due to the omissions and commissions of the petitioner itself.
6. Again, the petitioner has not approached the consumer fora with clean hands. Although, he accepted Rs. 3,00,000/-, yet, till the filing of this revision petition, he is not willing to disclose the price of booking rate of per square feet. For the following reasons, the rate disclosed by the complainant @ Rs. 3400/- per sq. ft. appears to be correct. Sh. Vinod Bhanushali, property dealer stated that the booking rate of the flat in dispute was Rs. 3,400/- per sq.ft.
The petitioner has tried to pull the wool in the eyes of the Law. The Brochure of the project produced by the petitioner mentions about the location and area of the flat. However, very smartly it does not indicate the selling rate. The petitioner who have sold many of the flats, did not enter into agreement to show that the rate per sq. ft. was higher than Rs. 3400/-. No such document saw the light of the day. It is also surprising to note that the receipt issued in favour of the complainant mentions about the name of project, floor and the flat No. to be sold to the complainant. This receipt is a substitute for the agreement. The privity of the contract between the parties stand established. Certain harsh realities cannot be glossed over. Facts are the stubborn things. It is difficult to fathom why should anyone take a dallop of injustice from someone else because he is in a more influential position. The skimble-scamble explanation given by the petitioner does not help the cause of justice at all. If he has no place at Sagar Avenue-II, he must provide or create the same. The petitioner cannot befool the people like this. The building is ready and he must provide accommodation to the complainant.
7. It must be mentioned here that the District Forum had passed the order on 15.07.2011. Now, almost 2 years have elapsed. The said order has not been complied with. The complainant paid the amount of Rs. 3,00,000/- in the fond hope of getting the flat in the year 2007. Since then six years have elapsed. The attainment of justice is the highest human endeavor. Justice delayed Is not only Justice denied- it is also Justice Circumvented, Justice mocked and the system of Justice undermined.
8. We, therefore give 30 days time to the petitioner to comply with the order rendered by the District Forum, otherwise the petitioner will have to pay additional costs of Rs. 2,500/- per day to the complainant till the order is complied with.
The executing court must take all the steps under which it is authorized to execute this order. The petitioner has wasted the time of the District Forum, State Commission as well as National Commission, for which we impose costs of Rs. 1,00,000/- upon the petitioner, which will be deposited with the Consumer Welfare Fund established by the Central Government under Section 12 (3) read with Rule 10(a) of the Consumer Protection Act, 1986, of the Central Excise Act, 1944, by way of demand draft in favour of P.A.O., Ministry of Consumer Affairs, payable at New Delhi, within one month from today, failing which it will carry interest @9% per annum till its realization. Learned Registrar of this Commission shall see compliance of the order under Section 25 of the Consumer Protection Act, 1986.
....J (J.M. MALIK) PRESIDING MEMBER .
(DR.S.M. KANTIKAR) MEMBER Jr/10