National Consumer Disputes Redressal
M/S. Afcons Developers Pvt. Ltd. vs Santosh Nair & Anr. on 17 February, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 814 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 560/2014 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503,CHARTERED HOUSE, 295, DR C.H. STREET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. BRIJLAL MENGHRAJ AHUJA & ANR. RESIDENT AT 3/A-1002 WHISPERING PALM, LOKHANDWALA COMPLEX, ANKRULI ROAD, KANDIVALI EASTS, MUMBAI-400101, MAHARASHTRA 2. MRS. PUSHPA BRIJLAL RESIDENT AT 3/A-1002 WHISPERING PALM. LOKHANDWALA COMPLEX, AKRULI ROAD, KANDIVALI EAST, MUMBAI-400101 MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 815 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 561/2014 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, 295, DR. C.H. STREET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. SANDEEP ROY TANDON D-801 MADHUBAN, UPPER GOVIND NAGAR, MALAD (EAST), MUMBAI-400097, MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 816 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 562/2014 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503,CHARTERED HOUSE, 295 DR.C.H.STREET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. ABHINAV KUMAR TANDON RESIDENT OF FLAT NO.904, ADMEASURING APPROX.1110 SQ FT. IN WING B ...........Respondent(s) FIRST APPEAL NO. 817 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 563/2014 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE,295, DR C.H. STREET,NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. RAMA SHANKAR KAUSHIK RESIDENT OF A/402, SKY LARK, JUHU VERSOVA LINK ROAD, ANDHERI (WEST) MUMBAI-400053 MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 818 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 564/2014 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, 295 DR C.H. STREET, NEAR MARINE LINE CHURCH, MUMBAI-400053 MAHARASHTRA ...........Appellant(s) Versus 1. MAMTA SEKHRI RESIDENT AT 303, SAVIT CHHAYA, 3RD FLOOR, 28TH ROAD, TPS-II,BANDRA (WEST), MUMBAI-400053 MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 819 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 565/2014 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, 29, DR. C.H.STREET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. M/S. RAPPORT PRODUCTIONS PVT. LTD. OFFICE ADDRESS AT OFFICE AT C-9, MORYA HOUSE, OFFICE LINK ROAD, ANDHERI (WEST), MUMBAI-400053 MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 820 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 566/2014 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503,CHARTERED HOUSE, 295, DR C.H. STREET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. ANAND BHATIA & ANR. RESIDENT AT A-702, BLUE MIST, EMPIRE COMPLEX, MAHAVIR NAGAR, KANDIVALI (EAST), MUMBAI-400067 MAHARASHTRA 2. MRS.PRIYANKA BHATIA RESIDENT AT A -702, BLUE MIST, BLUE EMPIRE COMPLEX, MAHAVIR NAGAR, KANDIVALI (EAST), MUMBAI-400067 MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 821 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 567/2014 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, 295, DR C.H. STREET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. JOGESH R. SHARMA & ANR. RESIDENT A5T 2104/5, "A" WING, EKTA MEADOWS, SIDDHARTH NAGAR, BORIVALI (EAST), MUMBAI-400066 MAHARASHTRA 2. MRS VIJAY JOGESH SHARMA RESIDENT AT 2104/5, "A"WING, EKTA MEADOWS, SIDDHARTH NAGAR, BORIVALI (EAST), MUMBAI-400066 MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 822 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 568/2014 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, 295,DR.C.H.STREET, NEAWR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. SANKALP MEHROTRA RESIDENT AT D/801, MADHUBAN, UPPER GOVIND NAGAR, MALAD (EAST), MUMBAI-400097, MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 823 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 569/2014 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, 295 DR.C.H.STREET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. PRAMOD C. JALAN RESIDENT OF H-31, RUSTOMJEE'S CENTRAL PARK CHS LTD, ANDHERI-KURLA ROAD, ANDHERI (EAST), MUMBAI-400093, MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 824 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 278/2015 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, DR. C.H.STREEET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. SANTOSH NAIR & ANR. FLAT NO.4046, TERRTHRAJ BUILDING, INDRALOKH PHASE VI, CHAYENDER (EAST), THANE-401017, MAHARASHTRA 2. MRS. SANGEETHA VIJAYA KUMAR, RESIDING AT FLAT NO.1001, 10TH FLOOR, OPPOSITE SK STONE, POONAM GARDEN MIRA BHAYENDER ROAD, MIRA ROAD (EAST), THANE-410017, MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 825 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 279/2015 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, 295 DR.C.H.STREET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. SEEMA RAKESH NIHALAANI RESIDING AT A/101 REDWOOD,EVERSHINE GREEENS, NEW LINK ROAD, ANDHERI (WEST), MUMBAI-400053 MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 826 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 280/2015 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 2503, CHARTERED HOUE, 295, DR.C.H. STREET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. BHAKTI N. MASHRU RESIDING AT 003, NEAR TRINITY, TANBK ROAD, ORLEM, MALAD (W), MUMBAI-400063 MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 827 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 281/2015 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, 2956, DR C.H. STREET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. ANJANA MUKUL SHARMA & ANR. RESIDING AT 42, VIKRAM "A" N.S.PHADKE MAR, OPPOSITE REGENCY RESTAURANT, ANDHERI (E), MUMBAI-400069 MAHARASHTRA 2. MR MUKUL A .SHARMA RESIDNG AT 42, VIKRAM "A" N.S.PHADKE MAR, OPPOSITE REGENCY RESTAURANT, ANDHERI (E), MUMBAI-400069, MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 828 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 282/2015 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, 295 DR C.H.STREET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. KAJAL SADNANI & ANR. RESIDENT AT C/204 JASMINE APARTMENTS,ASHA NAGAR, POONAM COMPLEX, KANDIVALI (EAST), MAHARASHTRA 2. MRS.SONI SADNANI RESIDING AT C/204 JASMINE APARTMENTS, ASHA NAGAR, POONAM COMPLEX, KANDIVALI (EAST) MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 829 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 283/2015 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, DR C.H.STREET, NEWAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. ASHOK L. SHAH RESIDING AT SHOP NO.1, KENWOOD APARTMENTS, LOKHANDWALA COMPLEX, ANDHERI (WEST), MUMBAI-400053 MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 830 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 284/2015 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, 295, DR.C.H.STREET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. SUNIL L. SHAH RESIDING AT SHOP NO.1, KENWOOD APARTMENTS, LOKHANDWALA COMPLEX, ANDHERI(WEST), MUMBAI-400053 MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 831 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 285/2015 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, 295, DR C.H. STREET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. RAHUL H. GALA RESIDING AT 160/d-41, VISHVESHWAR SOCIETY, SECTOR -1, CHARKOP, KANDIVALI (W), MUMBAI-400057, MAHARASHRA ...........Respondent(s) FIRST APPEAL NO. 832 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 286/2015 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, 295 DR. C.H. STREET, NEAR MARINE LINE CHURCH MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. ANURADHA SHRIKANT KATHALE RESIDENT AT 411/C, VIKAS TOWER CHS MOGRAPADA ROAD, ANDHERI (E), MUMBAI-400069 MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 833 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 287/2015 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, 295, DR C.H. STREET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. VANITA U. LAHANE RESIDENT OF B -615, SAPNA NAGE , GANDHIDHAM, KUTCH-370201, GUJARAT ...........Respondent(s) FIRST APPEAL NO. 834 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 462/2015 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503,CHARTERED HOUSE, 295 DR.C.H.STREET,NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. DEEPAK LAXMICHAND BADLANI & ANR. RESIDENT AT 16A,CHAND TERRACES, ST.ANDREWS ROAD, BANDRWA (WEST), MUMBAI-400050 , MAHARASHTRA 2. MRS.RESHMA LAXMICHAND BADLANI RESIDENT AT 16A, CHAND TERRACES, ST.ANDREWS ROAD, BANDRWA (WEST), MUMBAI-400050, MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 835 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 930/2016 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503,CHARTERED HOUSE, 295,DR C.H.STREET, NEAWR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. SANJAY MANKANI RESIDENT OF 47/903, EVERSHINE M.PARADISE, PHASE-V, THAKUR VILLAGE, KANDIVALI (EAST), MUMBAI MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 836 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 932/2016 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, 295, DR C.H.STREET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. SHAILI SETH & ANR. RESIDENT AT EMP.47, FLAT NO.1104, THAKUR VILLAGE, KANDIVALI (EAST), MUMBAI-400101, MAHARASHTRA 2. MRS.SARLA SETH, RESIDENT AT EMP.47, FLAT NO.1104, THAKUR VILLAGE, KANDIVALI (EAST), MUMBAI-400101 MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 837 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 933/2016 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, 295, DR.C.H.STREET, NEAR MARINE LINE CHURCH MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. SUDARSHAN S. NAIR & ANR. RESIDENT OF 702, MINARETTE, DADABHAI CROSS ROAD, NO.2 OFF JP ROAD, ANDHERI (WEST), MUMBAI-400053 MAHARASHTRA 2. MRS.TULSI SUDARSHAN NAIR RESIDENT OF 702, MINARETTE, DADABHAI CROSS ROAD NO.2, OFF JP ROAD, ANDHERI(WEST), MUMBAI-400053 MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 838 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 934/2016 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, 295, DR.C.H.STREET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. RAJAN C. KAPOOR & ANR. RESIDING AT 1902, DEERAJ GAURAV HEIGHTS-I, OFFICE NEW LINK ROAD, ANDHERI (WEST), MUMBAI-400053, MAHARASHTRA 2. MRS.ALKA RAJAN KAPOOR RESIDING AT 1902, DEERAJ GAURAV HEIGHTS-I, OFFICE NEW LINK ROAD, ANDHERI (WEST), MUMBAI-400053 MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 839 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 935/2016 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, 295, DR C.H. STREET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. MEHUL KAPOOR RESIDENT OF 13-B, BANDSTAND CO-OPERATIVE HOUSING SOCIETY LTD, 197-C. KANE ROAD BANDRA (WEST) MUMBAI-400040 , MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 840 OF 2020 (Against the Order dated 28/11/2019 in Complaint No. 936/2016 of the State Commission Maharashtra) 1. M/S. AFCONS DEVELOPERS PVT. LTD. OFFICE AT 503, CHARTERED HOUSE, 295, DR. C.H.STREET, NEAR MARINE LINE CHURCH, MUMBAI-400002 MAHARASHTRA ...........Appellant(s) Versus 1. HARSH ASHOK MANKANI RESIDENT AT 1078/B OBEROI PARK VIEW, THAKUR VILLAGE, KANDIVALI (EAST), MUMBAI-400101, MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. DINESH SINGH,PRESIDING MEMBER HON'BLE MR. JUSTICE KARUNA NAND BAJPAYEE,MEMBER
For the Appellant : For the Respondent :
Dated : 17 Feb 2023 ORDER
For the Appellant :
Ms. Deepika Mishra, Advocate with
Mr. Narendra Dubey, Advocate
For the Respondent :
In FA/814/2020
Mr. Satish Muley, Advocate with
Mr. Pawan Kumar Ray, Advocate
In FA/815/2020, FA/816/2020
and FA/817/2020
Mr. Manoj P. Mhatre, Advocate
In FA/818/2020
Mr. Satish Muley, Advocate with
Mr. Pawan Kumar Ray, Advocate
In FA/819/2020
NEMO
In FA/820/2020, FA/821/2020,
FA/822/2020, FA/823/2020,
FA/824/2020, FA/825/2020,
FA/826/2020, FA/827/2020
Mr. Manoj P. Mhatre, Advocate
In FA/828/2020
Mr. Satish Muley, Advocate with
Mr. Pawan Kumar Ray, Advocate
In FA/829/2020, FA/830/2020,
FA/831/2020, FA/832/2020,
FA/833/2020
Mr. Manoj P. Mhatre, Advocate
In FA/834/2020
Mr. Satish Muley, Advocate with
Mr. Pawan Kumar Ray, Advocate
In FA/835/2020, FA/836/2020
Mr. Manoj P. Mhatre, Advocate
In FA/837/2020, FA/838/2020
FA/839/2020
Mr. Satish Muley, Advocate with
Mr. Pawan Kumar Ray, Advocate
In In FA/840/2020
Mr. Manoj P. Mhatre, Advocate
Per Hon'ble Mr. Justice Karuna Nand Bajpayee, Member
1. These twenty seven (27) appeals, no. 814, no. 815, no. 816, no. 817, no. 818, no. 819, no. 820, no. 821, no. 822, no. 823, no. 824, no. 825, no. 826, no. 827, no. 828, no. 829, no. 830, no. 831, no. 832, no. 833, no. 834, no. 835, no. 836, no. 837, no. 838, no. 839 and no. 840 of 2020, have been filed under section 19 of The Consumer Protection Act, 1986 in challenge to the Orders (27 nos.) dated 28.11.2019 of the State Commission in complaints no. 560, no. 561, no. 562, no. 563, no. 564, no. 565, no. 566, no. 567, no. 568, no. 569 of 2014, no. 278, no. 279, no. 280, no. 281, no. 282, no. 283, no. 284, no. 285, no. 286, no. 287 of 2015, no. 462 of 2015, no. 930, no. 932, no. 933, no. 934, no. 935 and no. 936 of 2016 respectively.
Ms. Deepika Mishra, learned counsel appeared for the appellant (the 'builder co.') in all twenty seven (27) appeals.
Mr. Manoj P. Mhatre, learned counsel appeared for the respondents (the 'complainants') in all appeals except appeals no. 814, no. 818, no. 828, no. 834, no. 837, no. 838 and no. 839 of 2020.
Mr. Satish Muley and Mr. Pawan Kumar Ray, learned counsel appeared for the respondents (the 'complainants') in appeals no. 814, no. 818, no. 828, no. 834, no. 837, no. 838 and no. 839 of 2020.
No one appeared for the complainant in appeal no. 819 of 2020.
2. Learned counsel for both sides submit that similar facts and same questions of law are involved in all these twenty seven (27) appeals and as such they may be heard and decided together.
3. We have perused the record including inter alia the State Commission's impugned Orders (27 nos.) dated 28.11.2019 and the respective memoranda of appeal (27 nos.).
We see that similar facts and same questions of law are involved in all twenty seven (27) appeals. As such they are being disposed of vide this common order, with appeal no. 815 of 2020 being taken as the lead case.
Appeal no. 815 of 2020 (lead case):
4. The matter relates to a builder-buyer dispute.
As evinces from the record, the facts which occasioned the filing of complaint in the State Commission are as follows:
The complainant desirous to have a permanent residential accommodation in the city of Mumbai had approached the appellant builder co. (opposite party) which was going to construct the building in question under a scheme related to rehabilitation of slum dwellers and which had started booking and sale of the saleable components.
The opposite party shared with the complainant the entire details like project layout, cost breakup, possession timelines, etc. Being satisfied with the promised offer of amenities and facilities mentioned therein the complainant booked a residential flat in the proposed building admeasuring approx. 1135 sq. ft. (saleable area) which was to be constructed on the immovable property the details of which have been given in the complaint. The said booking was done on 27.02.2007. The agreed consideration of the flat was Rs. 22,70,000/-. An amount of Rs. 7,37,750/- vide cheque dated 27.02.2007 was paid to the builder co. in lieu of which a proper receipt of payment was also issued. After having received the part payment the builder co. issued the allotment letter dated 09.03.2007, thereby allotting a flat in favour of the complainant.
But, subsequently, the builder co. went back on its promise and completely failed to deliver anything in favour of the complainant. Not even the sale agreement was executed. In fact, the builder co. did not even commence the construction of the promised allotted flat. The off and on approaches made by the complainant to the builder co. could earn only further false promises and vague assurances alone that the work shall commence sooner or later.
The registered agreement which was also needed to avail the housing loan was never executed under the pretext that the same would be executed on obtaining IOD and CC. As part payment had already been made the complainant kept approaching the builder co. from time to time in order to pursue its cause and in the long years that followed the builder co. kept giving various explanations for the delay. Even the architectural proposal submitted to the slum authority and a proposed floor plan were shown to the complainant and he was assured about the progress and was asked not to worry. Later on, the complainant made some written communications to the builder co. expressing his anxiety and demands but which remained mostly unresponded. Eventually, the builder co. took a summersault and came in a denial mode. It tried to wriggle out of its promise under the insinuating pretext that certain another persons (Harish Jokyani, Govind T. Sadnani, Harish Soni, Raju Manwani) had actually invested some amounts with the builder co. and that the complainant along with several other similarly situate persons were only a group of investors at the back of the aforesaid four persons involved in real estate business and they were not genuine consumers desiring to have any residential accommodation for their use.
Strangely enough the appellant took quite an awkwardly unfair stand that some amount of money had already been refunded back to the aforesaid group of four persons as it was made to appear by them that the complainant and the other similarly situate persons (who are respondent complainants in the other appeals) were no more interested in the allotment. According to the complainant such kind of stance taken by the builder co. was mendacious and preposterous both. To the contrary even though the complainant was all the time prepared to manage and make rest of the payment good whenever required and was willing even to have an alternative accommodation in the saleable component of the building in question in which the allotment was made, but the builder co. simply failed to deliver on the promise.
5. Eventually the complainant had to file the consumer complaint claiming possession of the subject flat after making payment of remaining consideration and execution of the sale agreement along with Occupancy Certificate and all other necessary documents. Alternatively, the complainant prayed that the builder co. be directed to hand over possession of any other flat of the same size in the same locality for the same consideration. The complainant also claimed Rs.3,00,000/- as compensation on account of mental torture and agony suffered by him.
6. The State Commission after following the due procedure and hearing both sides decided the complaint in favour of the complainant and passed the following award:
[16] In view of the answers of the Point- I to V, consumer complaint deserves to be partly allowed. Hence, we proceed to pass the following order.
ORDER
(1) Consumer complaint is hereby partly allowed with costs of Rs.25,000/-[Rs.Twenty Five Thousand only] to be paid by opponent to the complainants.
(2) Opponent should hand over flat bearing no.501 admeasuring approx.1135 sq.ft.(saleable area), 5th floor, Wing A to be constructed on CTS No.58 (part), 59, 60 (part), 64 (part), 89 (part), 90 to 92, 95 (part) and 104 (part) of village Oshiwara, Tal.Andheri (MSD), Mumbai 400 102 on payment of remaining consideration of Rs.15,32,250/- [Rs. Fifteen Lacs Thirty Two Thousand Two Hundred Firty only] to the complainants along with Occupancy Certificate and all necessary documents.
IN ALTERNATIVE, if the said flat is not available with the opponent, the opponent should hand over any other flat of same size in the same vicinity for the same consideration on payment of remaining consideration to the complainants.
(3) Opponent should execute agreement in favour of complainants in respect of the flat and register it which opponent is handing over to the complainant within two months from the date of this order. The complainant should deposit remaining consideration of Rs.15,32,250/- [Rs.Fifteen Lacs Thirty Two Thousand Two Hundred Firty only] in this State Commission under intimation to the opponent and from the date of intimation of amount deposited, opponent should hand over possession of the said flat to the complainants within two months along with Occupancy Certificate and all necessary documents in favour of the complainants.
(4) Opponent shall pay an amount of Rs.1,50,000/- [Rs.One Lac Fifty Thousand only] as compensation for mental torture and agony suffered by complainants.
(5) If the possession is not handed over within the period mentioned above, the opponent is liable to pay Rs.1,000/- per day as compensation to the complainant till handing over the possession.
(6) On compliance of entire order, opponent is entitled for the amount deposited in this State Commission.
7. The main thrust of the argument that has been raised on behalf of the appellant builder co. is that even though the booking of the flat was done and allotment letter was also issued in favour of the complainant (and in favour of other similarly situate complainants), but the purpose of such allotment was not allotment per se but just to extend a kind of assuring security in lieu of their investment. Contention is that the complainant is not a genuine consumer and never wanted the flat in question for residential purposes. He was, according to the counsel, just a façade or a ploy to conceal the real object of the investment which was being done by a group of other persons namely Harish Jokyani, Govind T. Sadnani, Harish Soni, Raju Manwani. Submission is that the complainant and many other such persons were brought by the aforesaid group of four persons and all of them were hands in gloves with the aforesaid investors and therefore they ought not to be treated as consumers under section 2(1)(d)(ii) and cannot be granted any relief under The Consumer Protection Act, 1986.
It was further submitted that the afore said four persons Harish Jokyani and others had conveyed to the appellant the unwillingness of the complainant to procure the flat and also his willingness to get it cancelled. Submission is that the builder co. had also returned some amount to the aforesaid four persons (Harish Jokyani, Govind T. Sadnani, Harish Soni, Raju Manwani) as representatives of the complainants.
Extending another limb of argument learned counsel has also tried to touch upon the point of limitation submitting that the filing of the complaint has been done with delay and the same is therefore barred by limitation as has been provided in the Act.
It has also been submitted that it was a SRA project and the project got stuck in the process of approvals. It was contended by the learned counsel that the completion of the project could not be done because of the non-cooperation of the concerned government / semi-government authorities and concerned development authorities and the builder co. is not to blame for the delay in constructing the building or for not delivering the possession of the same. Contention is that the circumstances causing the delay were beyond control of the appellant and therefore it was under the protective coverage of force majeure clause.
The learned counsel appearing for the respondent complainant has attempted to vehemently rebut the contentions raised on behalf of appellant. It has been submitted that the complainant or the similarly situate other complainants relating to other appeals under consideration have not made any backdoor or underhand investment through the aforesaid four persons namely Harish Jokyani, Govind T. Sadnani, Harish Soni, Raju Manwani. The complainant had individually made the payment of part consideration to the builder co. and individually obtained the allotment letter of the respective flat. The payment in part was made by the complainant through cheque. In the allotment letter itself which was issued in favour of the complainant several such relevant details relating to the promised sale of the property in question were given which are simply alien in matters where genuine allotment is never meant to be done. It was also emphatically contended that when all whereabouts of the complainant were known to the builder co. where was the question of returning the complainant's money to other persons when the money was given by, and belonged to, the complainant. It was also pointed out that in matters where some money is deposited for investment the terms of its return in the form of interest or the terms of any other promised profit must have been mentioned in the letter issued by the builder co. but the same was nowhere there at all. Counsel has also tried to emphasize that The Maharashtra Ownership of Flat Act, 1963 (MOFA) mandates that if certain amount is received by the builder co. against the booking of the flat then the agreement must be executed in favour of purchaser. But this requirement was grossly violated causing great prejudice to the complainant. Argument is that the complainant has been cheated and has been made to suffer by sheer deficiency of service and also by adopting unfair trade practice in order to make wrongful gain and cause wrongful loss to the complainant.
Learned counsel for the complainant has also tried to show that as the value of the flats in question has exponentially surged up over the years the appellant has developed vested interest in the delay of construction. The actual intention of the appellant behind the delay is oblique and unfair so that it may get riddance from the complainant by just refunding their money and then to re-allot and sell the flats to new persons at currently prevailing exorbitant rates.
8. We have carefully adverted to the submissions made by the rival sides and have also perused the entire record as also the Order passed by the State Commission.
9. We are of the considered view that the approach of the State Commission has been correct and it has rightly appreciated the facts of the matter and come to right conclusions finding no substance in the defense of the builder co.
10. Before proceeding further we would like to observe in order to place the whole matter in perspective, that prior to, or, at the least, simultaneous to, getting the buyer-consumer to enter into its agreement and accepting the first payment towards the total cost of the subject unit, the builder co. was required and expected to have the due pragmatic and realistic assessment and preparation of the project planning. It was the prime responsibility of the builder co. to ensure that it was in a position to deliver the possession of the subject unit to the buyer-consumer within the agreed and assured period. Planning, execution and completion were the builder co.'s responsibility, and not of the consumer; (normal) impediments or problems that may arise in planning, execution and completion were again its own responsibility, and not of the consumer. Specifically, availability of land, as well as all approvals from the concerned government, development and municipal authorities, as and when due, being fundamental basic requirements of a residential housing project, were decidedly to be taken care of and dealt with by the builder co. Time and cost overruns were essentially within the domain of its own duty and obligation. Non-fulfilment of its overall responsibilities of project planning, execution and completion can not be and are not grounds for condoning or overlooking delay in completion and failure to offer possession within the agreed and assured period. All-encompassing blanket plea of force majeure, unforeseeable circumstances, irrespective of its various 'liberal' or 'strict' interpretations, and irrespective of its various interpretations in different sets of facts, cannot be nebulously and irrationally articulated in the agreement, or be successfully contended and argued as omnibus defence for anything and everything related to the builder co.'s failure to fulfil its responsibilities for completion of the project without occasioning time or cost overruns.
It is not in dispute at all that the complainant had booked the flat with the appellant builder co. It is also beyond the pale of controversy that a substantial amount of Rs. 7,37,750/- was deposited vide cheque dated 27.02.2007 by the complainant in favour of the builder co. But, disconcertingly enough no sale agreement was executed despite the said provisions of MOFA.
We note that the State Commission has observed that if any amount is accepted by the builder against the booking of any flat then he should execute agreement in favour of purchaser. The reason dictates that after accepting amount towards booking of flat and also issuing allotment letter the builder is under obligation to execute agreement. We concur with the said observation of the State Commission that not executing sale agreement and not handing over the possession even after accepting a considerable amount from the complainant amounts to deficiency in service on the part of the builder co. The builder co. cannot take the inverted plea that since there was no sale agreement it is not under obligation to hand over possession.
It is also not in dispute that the admitted allotment letter does not make any mention of the aforesaid four persons namely (Harish Jokyani, Govind T. Sadnani, Harish Soni, Raju Manwani) either overtly or covertly. We do not see anything in the allotment letter which may indicate that actually the same was never meant for allotment or that it was meant only as an extension of security coverage. In fact, we could not find anything on record, and learned counsel for the appellant also could not show any material of any kind, which may create or establish any underhand undesirable nexus between the complainant and the aforesaid four persons who are said to be dealing in real estate business and are being said to have made and managed investments with the builder co. for themselves or on behalf of the complainant.
We also take note of some conspicuous contents of the allotment letter which go a long way to confirm the genuine normal nature of allotment and which negate the defense plea that it was for investment purpose. In fact, the State Commission too has taken cognizance of those contents and has drawn negative inference against the builder co. on that basis. The relevant part of the State Commission's order in this regard may be usefully extracted wherein it observes that "It is also material to note that schedule of payment is also given in the allotment letter. It is also mentioned that the agreement for sale shall be executed immediately upon being called to do so. It is also mentioned in the clause 6 that "The prompt payment of the purchase price by you as mentioned in clause 1 & 2 hereinabove mentioned is the essence of this letter and the installments should be paid within 7 days from the date of receiving our intimation." Clause 7 reads as "If the allottee commit default in payment of anyone installment is stated hereinabove in that event, the Developer shall give notice of 15 days calling upon him to remedy the breach committed by him. And after expiry the period of 15 days the Developer should be entitled forfeit the earnest money and the allottee will have no rights, title or interest of any kind whatsoever." This clause makes the position clear that it was not an investment case, but it was a clear case of booking a flat, otherwise there is no necessity of mentioning these things. No investor will invest his money with such conditions.".
We feel that the State Commission's approach in this regard cannot be faulted. We also find substance in the plea raised by the complainant's counsel that the allotment letter is conspicuously reticent about the terms of any future or prospective profit of the alleged investment or about any prospective interest that could become due in lieu of the investment. Even otherwise too there is no independent documentary evidence available on record to indicate any such terms that might be said to have been settled in between the complainant and the builder co. with regard to interest or profit or any other kind of return in lieu of the money deposited by the complainant.
11. The defense plea of the appellant builder co. attempting to show the allotment as if it was only a ruse to cover up investment appears to be a bald plea unsubstantiated by any material or evidence worth placing reliance upon and has rightly not found favour with the State Commission. We too find that the complainant is very much a consumer with no disqualifying disabilities and had all the rights to invoke the jurisdiction of the consumer commission under the Act.
12. With regard to the submission of the builder co.'s counsel which relates to the limitation period we find not much substance in the same. It is clear case of the complainant that he had been approaching the builder co. from time to time and was kept under false promises, assurance and hopes and different reasons were shown from time to time as to why the project was getting delayed. The part payment of substantial money had already been made by the complainant and the same was with the builder co. and was never returned. It was the right of the complainant to ask for the completion of the project and for handing over the possession of the promised flat. It was a case of recurring cause of action which continued in process over several years. The State Commission has rightly rejected this objection relating to limitation after discussing the relevant law. And we entirely agree with the same.
13. We find that the appellant was supposed to develop the site under SRA project. The old buildings that might have been there were to be demolished and the new building was to be constructed. As is done in these matters the old dwellers are then conferred the rights to possess flats which have been newly constructed. The builder co. does not earn from the old dwellers but is supposed to make its profit from the saleable area. It was for this saleable part regarding which the complainant had deposited the part payment and was given the allotment of a flat in the proposed tower which was to be constructed. In fact, we find in the complaint that the complainant has also agreed to have an alternative accommodation of the same size in the same locality in case the promised flat for some reason or the other could not be handed over. The builder co. has undisputedly retained the complainant's hard earned money unduly for a protracted period of time and has ditched the complainant eventually. The entire dealing smacks of unfairness of trade practice not to speak of deficiency of service which this appellant is certainly guilty of. The complainant undoubtedly is entitled to be duly compensated for the loss and injury inflicted upon him. He is also entitled to a flat in lieu of which he had made part payment. The remaining consideration must be made good by him as has been directed by the State Commission. In the alternative, in case of non-availability of the subject flat, any other flat may be handed over in the same vicinity of the same size and for the same consideration on payment of the outstanding consideration. In that view of the matter all the terms of the award as have been firmed up by the State Commission are being approved by us as such.
14. We are of the considered view that no interfere with the findings or award of the State Commission is called for. We find no illegality or error in appreciation of facts in the impugned Order and the same stands confirmed.
15. The instant appeal being bereft of merit stands dismissed.
Appeals no. 814, no. 816, no. 817, no. 818, no. 819, no. 820, no. 821, no. 822, no. 823, no. 824, no. 825, no. 826, no. 827, no. 828, no. 829, no. 830, no. 831, no. 832, no. 833, no. 834, no. 835, no. 836, no. 837, no. 838, no. 839 and no. 840 of 2020:
16. Appeals no. 814, no. 816, no. 817, no. 818, no. 819, no. 820, no. 821, no. 822, no. 823, no. 824, no. 825, no. 826, no. 827, no. 828, no. 829, no. 830, no. 831, no. 832, no. 833, no. 834, no. 835, no. 836, no. 837, no. 838, no. 839 and no. 840 of 2020 are dismissed in terms of the examination and reasons contained hereinabove apropos appeal no. 815 of 2020 (the lead-case) with similar directions mutatis mutandis.
17. The Registry is requested to send a copy each of this Order to all parties in the appeals and to their learned counsel as well as to the State Commission immediately. The stenographer is requested to upload this Order on the website of this Commission immediately.
18. Let a copy of this Order be placed on the file of each appeal.
...................... DINESH SINGH PRESIDING MEMBER ......................J KARUNA NAND BAJPAYEE MEMBER