State Consumer Disputes Redressal Commission
Sandeep Devidasrao Khosre vs Dattatray Rambhau Bavaskar on 18 July, 2024
1 CC/7/2018
Date of filing :25.01.2018
Date of order :18.07.2024
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, BENCH AT AURANGABAD.
Consumer complaint NO.:07 OF 2018
1. Sandeep Devidasrao Khosare, ...COMPLAINANTS
R/o N-9, A 116, H 107/2, (Adv.A.M.Mamidwar)
CIDCO, Aurangabad.
2. Sow.Praiyanka Sandeep Khosare,
R/o N-9, A 116, H 107/2,
CIDCO, Aurangabad.
VERSUS
1. Shri Dattatraya Rambhau Bawaskar, OPP. No.1 to 6 & 8
R/o Sillod, Tq.Sillod, ( Adv.S.R.Malani)
Aurangabad.
2. Nanda Sukhdeo Kharat,
R/o Sankalp Nagar, Harsool Parisar,
Aurangabad.
3. Shri.Raju Prabhu Kakde,
R/o Mayur Park, Harsool Parisar,
Aurangabad.
4. Shri.Manohar Sarjerao Sonawane,
R/o Mayur Park, Harsool Parisar,
Aurangabad.
5. Shri.Vijay Laxman Mahajan,
R/o At Post Babra, Tq.Phulambri,
Dist.Aurangabad.
6. Shri.Gopal Manoharrao Anvekar,
R/o Sillod, Tq.Sillod,
Dist.Aurangabad,
2 CC/7/2018
(Sai Developers Through Partner)
7. M/a Sukruti Construction ...EXPARTE
Partnership firm through
Partner G.P.A.
7A. Shri.Deepak Devendra Jagtap, ...EXPARTE
R/o Row house No.C-4,
Rameshwar Nagar, Jatwada Road,
Harsool , Aurangabad.
7B. Shri.Santosh Ramdas Mhaske, ...EXPARTE
R/o Row house No.C-4,
Rameshwar Nagar, Jatwada Road,
Harsool , Aurangabad.
7C. Manoj Bhawarsing Lodwal, ...EXPARTE
R/o H.No.5, Survey No.69,
Jay Bhavaninagar, Aurangabad.
8. M/s Sai Developers partnership firm,
Through partner J.P.A.
Shri. Raju Prabhu Kakde,
R/o Mayur Park, Harsool Parisar,
Aurangabad.
9. Piramal Capital & Housing Finance Ltd., ...OPP.No.9
Through Branch Manager , (Adv.R.S.Gangakhedkar)
Office at 9-10, Sai Sqare,
3rd floor, Osmanpura Circle,
Station Road, Osmanpura,
Aurangabad.
10. Piramal Capital & Housing Finance Ltd., ...OPP.No.10
Through Manager , (Adv.R.S.Gangakhedkar)
Lohin Jain Arcade, CTS NO.2840,
Survey No.106/107,
Friends park Society, Senapati Bapat Road
Pune - 411016.
(Opponent No.9 and 10 earlier at the
time of filing complaint DHFL,after
amendment Piramal)
3 CC/7/2018
11. The Commissioner, ...OPP.No.11,
Municipal Corporation, Budhi Lane, ( Adv.V.D.Kadam)
Narali Baug,
Aurangabad.
12. The Administrator , ...OPP.No.12
CIDCO Municipal Corporation , (Adv.S.B.Mene)
Town Centre, Cidco,
Aurangabad.
CORAM : Milind.S.Sonawane, Hon'ble Presiding Member.
Nagesh.C.Kumbre, Hon'ble Member
JUDGMENT
(Delivered on 18/07/2024) Per M.S.Sonawane, Hon'ble Presiding Member.
This is the case filed by the complainant under S.12 read with S.18 of the Consumer Protection Act, 1986 ( the C.P.Act for short).
2. Opponent No.1 to 6 and 8 are the original land owners on whose land situated in Gat No.160 of Mauje 'Sawangi', opponent no.7, 7A, 7B and 7C under took to develop 'Dwarawati Residency' in 2013-14. In the said building the complainants on 12.12.2014 purchased Flat No.5 . On the said date sale deed was executed for the consideration of Rs.17,30,000/-. The complainants paid Rs.2,00,000/- in cash, whereas Rs.15,30,000/- has been paid by them through respondent no.9 and 10 (Originally they were indicated as DHFL. But merger of it took place in Piramal Capital Housing Finance Ltd,. The 4 CC/7/2018 amendment is effected accordingly by the complainants in the complaint.)
3. It is averred by the complainants that, in the said transaction opponent no.1 to 8 forced them to take the loan from opponent no.9 and 10. Opponent no.9 and 10 by joining the hands with opponent no.1 to 8 took the entire amount of the consideration although it was agreed that, the loan amount is to be disbursed as per the stages of the construction. Opponent no.9 has also took Rs.66,534/- as a processing fees without giving any valid explanation. It is also averred that, at the time of taking entire amount of consideration the construction work was incomplete, which is still not completed. Instead of executing 'agreement to sale' opponent no.1 to 8 executed 'final sale deed'. Opponent no.1 to 8 have not given possession of the disputed flat and thereby committed deficiency in service. It is prayed by the complainants that, because of the deficient service they have to pay Rs.5,75,939/- as an instalment on a loan and to stay in the rental premises. In the course of time the price of the houses in the same locality and of the same area have been escalated. It is also prayed by the complainants that, amount indicated in the following table may kindly be directed to be paid by the opponent along with other sums.
Sr.No. Particulars. Amount.
1 Stamp duty. 86,500/-
2 Registration Fees. 17,300/-
3 Hard cash. 2,00,000/-
5 CC/7/2018
4 Interest paid by complainant till 5,75,939/-
this date.
5 Amount of processing fee paid by 66,534/-
complainant for loan.
Total . 9,46,273/-
4. For the price escalation of the flat in the same locality they have to pay more amount for purchasing another flat. That difference amount may be directed to be paid by the opponents. It is further prayed that, the loan amount of Rs. 15,30,000/- may kindly be directed to be paid by opponent no.1 to 8 to opponent no.9 and 10. Their name shall not be included in CBIL and they should get no dues certificate. They shall be granted sum of Rs.1 lakh for mental harassment along with Rs.50,000/- as a cost of the proceedings. They shall be granted Rs. 6,000/- from 12.12.2014 till the realization towards the rent they have paid. Opponent no.11 and 12 may kindly be directed to explain about commencement certificate and on the plot of the building how much construction could be done.
5. The complainants have filed copy of sale deed, loan sanction letter, bank notice, order of the DRT, loan agreement, evidence affidavit to support their averments.
6. Opponent no.1 to 6 and 8 filed their written version and contested the claim of the complainants. It is contended that, the land Gat No.160 of Mauje 'Sawangi' to the extent of 59 R. is owned and possessed by them, who formed amongst themselves 6 CC/7/2018 a partnership firm namely 'Sai Construction' ( opponent no.8) . They converted that land into non agricultural land and given it for the development to opponent no.7, 7A to C, by way of development agreement. It was agreed that, 40 % of the construction would be given to them as a price of the land whereas 60 % can be sold by opponent no.7, 7 A to C. The complainants have purchased the disputed flat from those opponents and not from them. The sale deed was executed between them. They are not the party to the sale deed. They have not received any sum from the complainants. The complaint against them is not tenable. It may kindly be dismissed with costs.
7. Opponent no.1 to 6 and 8 filed the copy of development agreement executed between them and opponent no.7, 7 A to C.
8. Though duly served opponent no.7, 7 A to C not given appearance in the matter. As such our ld. Predecessor Bench passed ex-parte order against them.
9. Opponent no.9 and 10 filed written version and resisted the claim of the complainants. It is contended by them that, on the request of the complainants and after all necessary compliances of the documents from the complainants they have disbursed the loan. It is done with the consent of the complainants. It is therefore, there is no question of joining hands with the other opponents. The main complaint of the complainants is against opponent no.1 to 8. They cannot be held liable for the inaction on 7 CC/7/2018 the part of opponent no.1 to 8. In short, it is the contention of opponent no.9 and 10 that the loan disbursement has been effected on the request and intimation of the complainants. They have not committed any deficiency in service. Therefore, it is prayed that, the complaint against them may kindly be dismissed with cost.
10. Opponent no.11 and 12 appeared in the matter but not filed written version. Consequently, there has been no evidence filed by them.
11. The points for determination along with our findings thereon are as follows.
Sr.No. Points. Findings.
1. Is the complaint tenable against
opponent No.1 to 6 and 8? No.
2. Whether there is deficiency in service
caused to the complainants by Yes.
the opponents? (As to 7, 7 A to C.)
3. What order? As per final order.
REASONS
As to Point No.1 :-
12. Adv.Mamidwar for the complainants tried to impress upon us that, opponent no.1 to 8 have taken the entire consideration amount from the complainants. Opponent no.1 to 8 have cheated the complainants by taking entire loan amount from opponent no.9 and 10, though the construction work was incomplete and 8 CC/7/2018 was just started. Opponent no.9 and 10 have also not complied the directions of the RBI regarding disbursement of the loan amount depending on the stage of the construction. As such according to him they all have committed deficiency in service.
13. On the contrary it is the submission of Adv. Malani for opponent no.1 to 6 and 8 that, these opponents are original land owners. They entered into development agreement with opponent no.7, 7 A to C. As per that agreement 60 % of the construction will have to be kept by the developer and 40 % will be given to the original land owners as a price of the land. The disputed flat has been taken by the complainants from the developers i.e. opponent no.7, 7 A to C and not from the opponent no.1 to 6 and
8. On perusal of the development agreement and sale deed executed between the complainants and opponent no.7, 7 A to C, these facts are very clear. Opponent no.1 to 6 and 8 have not received any sum from the complainants and therefore, the case is not tenable against them.
14. On perusal of the sale deed of the disputed flat it is crystal clear that, sale deed has been executed between opponent no. 7, 7 A to C in which they are indicated as 'vendor' whereas the complainants have been shown as the 'purchasers'. Para 8, 9 and 10 and 13 of the sale deed are reproduced below.
8. Whereas as per Development Agreement the Developer will have 60 % share in the constructed area and land owners will have 40 % share in the constructed area. M/s Sukruti 9 CC/7/2018 Construction constructed housing project named 'Dwarawati Residency' over the land.
9. Whereas the correction Deed NO.1539 dtd. 26.2.2013 has been executed in Development Agreement No. 374 dtd 14.1.13 to correct the amount of security deposit and the Correction Deed NO. 1540 dtd 26.2.2013 has been executed in GPA NO. 375 dtd 14.1.13 to correct the power of mortgage. As per record GPA the developer firm has the power to mortgage entire land under development for project loan.
10. Whereas the Deed of Declaration u/s 2 A of Maharashtra Apartment Ownership Act has been executed on 1541 vide daybook No. 26/2/2013. There are 96 flats and 5 row house. There are 4 flatted buildings. The land Owners will have 39 flats and 2 row houses in this project as mentioned in the Declaration and the Developer firm will have 3 row houses and 57 flats in its share.
11. ..................
12....................
13. Whereas the Vendor/Developer is fully entitled to sell the Flat No.05 in Building No.B-1 (2 BHK) Second floor adm. Built-up area 46.00 Sq.Mtr more particularly described in the Schedule hereunder written (hereinafter called the said property). As per Declaration No. 1541 dtd 26/2/2013 is in the share of the developer. The Land owners have signed this Deed of sale as the consenting party.
15. The above recitals of the sale deed clearly shows that, opponent no.1 to 6 and 8 are the consenting party to the sale 10 CC/7/2018 deed. Whereas opponent no.7, 7 A to C is the party who have entered into contract with the complainants as to the sale of the disputed flat. As such, when the complainants not received the possession of the disputed flat till this date, opponent no.1 to 6 and 8 cannot be held liable, as they have not received any payment from the complainants. Complainants are not the 'consumers' of opponent no.1 to 6 and 8 within the meaning of S. 2(1)(d) of the C.P.Act. Hence, we answer point no.1 in negative.
As to Point No.2 :-
16. Adv.Mamidwar for the complainants argued that, opponent no.1 to 6 and 8 have joined the hand with opponent no.9 and 10 and get the entire loan amount disbursed, actually when there was a construction of only preliminary things of the project.
Opponent no.9 and 10 violated the regulations of the RBI in that regards. However, we found that, there is no evidence to substantiate the above contention. The version of opponent no.9 and 10 appears to be more acceptable in the preponderance of the probabilities that, on the request of the complainants they disbursed the entire amount. There is no evidence to establish the fact that, the complainants immediately protested about the same in Dec.2014 when that amount has been paid. It is now the complainants are raising this objection, which cannot be accepted. Therefore, we are not inclined to accept that, there has been any deficiency on the part of opponent no.1 to 6 and 8 and 9 and 10. Similarly opponent no.11 and 12 which are the local authorities have not played any significant role which constitutes deficiency in service to the complainants.
11 CC/7/2018
17. So far as opponent no.7, 7 A to C are concerned it is forthcoming from the evidence produced on record that, opponent no.7, 7 A to C have taken loan of Rs.3,50,00,000/- ( 3 Cr. 50 Lakh) from opponent no.9 and 10 and to that loan opponent no.1 to 6 and 8 were the guarantors/ mortgagors. On making the default in repayment of that loan amount, opponent no. 9 and 10 initiated action against opponent no.7, 7 A to C under the provisions of the SARFAESI Act 2002. Resultantly, on 24.7.2017 District Magistrate, Aurangabad gave the possession of secured assets (in which the disputed flat is also situated) to opponent no.9 and 10. As a result of which the project in which the disputed flat was purchased by the complainants cannot be given in possession of the complainants. The order of the District Magistrate referred to above is produced by the complainants themselves on the record. Therefore, it can be evident from the above facts that, because of defaults made by opponent no.7, 7 A to C the disputed flat has not been given in the possession of the complainants. This is certainly a deficiency in service. As such, we holds opponent no.7, 7 A to C liable for the deficiency in service and answer point no.2 in affirmative only in relation to these opponents, and negative in relation to all other opponents.
As to point No.3 :-
18. In view of our findings as to point no.1 in negative it is clear that, complainants are not the 'consumers' of opponent no.1 to 6 and 8. Our findings as to point no.2 shows that, opponent no.1 to 6 and 8 and opponent no.9 and 10, and opponent no. 11 and 12 CC/7/2018 12 have not given any deficient service to the complainants. But opponent no.7, 7 A to C are liable for the deficient service. The complainants have made several prayers, some of them are not really relevant in the light of above discussions. However, in view of the fact of the present case it will be just to direct opponent no.7, 7 A to C to refund to the complainants jointly and severally sum of Rs.17,30,000/- along with simple interest at the rate of 10 % p.a. from the date of payment i.e. 12/12/2014 till the realization. The complainants have also prayed that, they may kindly be given rent of Rs.6,000/- per month from Dec.2014 till the realization as because of the deficient service they have been forced to in the rental premises despite of entire amount of the consideration. However, they have not any rent receipts nor any leave and license agreement to establish that fact. But it cannot be forgotten that, though they have not produced those documents but it can be inferred that, had they been given the disputed flat in possession they might have earned rent from it.
They have certainly suffered direct loss because of the deficient service on the part of opponent no.7, 7 A to C. According to us, in the facts and circumstances of the case complainants are entitled Rs.3 Lakhs as a compensation on that count. If opponent no.7, 7 A to C have to pay it within the period of one month of this order else, shall also pay simple interest @ 10 % p.a. till the realization. Similarly, in the facts and circumstances of the case it will be just to direct opponent no.7, 7 A to C to pay Jointly and severally to the complainants combinely sum of Rs.1 Lakh for mental and physical harassment along with sum of Rs.50,000/- as a cost of the proceedings. The case against opponent no.1 to 6 and 8 and 13 CC/7/2018 9 and 10 and opponent no.11 and 12 is liable to be dismissed. Hence, we pass the following order.
ORDER
1. Opponent no.7, 7 A to C are directed to refund jointly and severally to the complainants combinely sum of Rs.17,30,000/- along with simple interest at the rate of 10 % p.a. from the date of payment i.e. 12/12/2014 till the realization.
2. Opponent No.7, 7 A to C are directed shall pay jointly and severally to the complainants combinely sum of Rs.3 Lakhs as a compensation for the damages caused to them because of non delivery of the possession of the disputed flat.
3. If opponent no.7, 7 A to C have not paid the sum directed as above in direction No.2 within the period of one month of this order they shall also pay simple interest @ 10 % p.a. on that sum till the realization.
4. Opponent no.7, 7 A to C shall pay combinely to the complainants sum of Rs.1 Lakh for mental and physical harassment along with sum of Rs.50,000/- as a cost of the proceedings.
5. The case against opponent no.1 to 6 and 8 and 9 and 10 and opponent no.11 and 12 is dismissed.
6. Copy of the judgment be furnished to the parties free of cost.
N.C.Kumbre M.S.Sonawane
Member Presiding Member