State Consumer Disputes Redressal Commission
Captain (In) Bhupesh Aneja & Ors vs M/S.Prathmesh Construction Thru Its ... on 15 May, 2023
1 (CC/17/883)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO.CC/17/883
1. Captain (IN) Bhupesh Aneja
22, Vidya, Bldg. NOFRA,
Near RC Church,
Colaba,
Mumbai 400 005.
2. Mrs. Divya Aneja
(Through POA Capt
(IN) Bhupesh Aneja -
Husband of complainant No.2)
22, Vidya, Bldg. NOFRA,
Near RC Church,
Colaba,
Mumbai 400 005. Complainants
versus
1. M/s. Prathamesh Construction
(Through its Proprietors /
Partners Shri.Vijay Singh and
Shri. Ajit Singh- Both sons of
Shri.Shrinath singh)
Office No.22, 1st floor, Sai Chamber,
Plot No.44, Sector 11,
CBD Belapur,
Tal. & Dist.Thane,
Navi Mumbai 400 614.
2 (CC/17/883)
2. M/s. Prathamesh Infra Realty Pvt. Ltd.
(Through its Directors
Shri.Vijay Singh and Shri.Ajit Singh
Both s/o Shri.Shrinath Singh)
Shop No.32, Shiv Chambers,
Ground floor, Sector 11,
CBD Belapur,
Navi Mumbai 400 614.
3. Shri.Vijay Singh
@ Prathmesh vijay Singh
R/o 122, Sai Chambers,
Sector 11,
CBD Belapur,
Navi Mumbai 400 614.
Also at-
M/s. Prathamesh Infra Realty Pvt. Ltd.
Shop No.32, Shiv Chambers,
Ground floor, Sector 11,
CBD Belapur,
Navi Mumbai 400 614.
4. Shri.Ajit Singh @ Shri.Ajit Shrinath Singh
S/o Shri. Shrinath Singh
R/o R 3, Lane No.2, Sector 9,
CBD Belapur,
Navi Mumbai 400 614.
Also at-
M/s. Prathamesh Infra Realty Pvt. Ltd.
Shop No.32, Shiv Chambers,
Ground floor, Sector 11,
3 (CC/17/883)
CBD Belapur,
Navi Mumbai 400 614. Opponents
BEFORE :
Mr.Justice S.P.Tavade, Hon'ble President
Smt.S.T.Barne, Hon'ble Judicial Member
PRESENT:
For the In person
Complainants:
For the Advocate Uday Warunjikar
Opponent :
JUDGMENT
Dated 15th May, 2023
Per- Hon'ble Mr.Justice S.P.Tavade, President
1] Complainant No.1 is a Naval Officer and husband of complainant No.2. Opponents are builder, developer and Proprietors / Partners. It is contended that the opponent No.1 is a Proprietary / Partnership Firm of opponent Nos. 3 and 4. Opponent No. 2 claims to be a Private Limited Company with opponent Nos. 3 and 4 as its Directors. Opponent Nos. 1 and 2 are the Builder and Developers having their office as mentioned in the class title of the complaint. Opponent Nos. 3 and 4 are the real brothers and look after day today business/affairs of opponent Nos.1 and 2. Opponent No.1 also claims to be registered with International Standard Organisation and holder of ISO 9001: 2008, a certified Institution.
2] In the year 2013, complainants were in need of accommodation. On 17/02/2013 complainant No.1 intended to purchase residential apartment /flat in 4 (CC/17/883) Ulwe, Navi Mumbai for living with family, came in contact with Opponent No.3, at Shop No. 2, Shiv Chamber, Ground floor, Sector 11, CBD Belapur Navi Mumbai 400 614 which is the business address of Opponent No.2. It is contended that the Opponent No. 3 in writing indicated on a paper, and signed, the costing breakdown and payment terms for 20% advance and registration for a 2BHK flat on 7th floor, admeasuring approximately 1100 sq.ft, at plots 189 and 190A, Sector 20, Ulwe for total consideration of Rs.60,38,000/-. It is contended that, as per the demand of opponent No. 3, complainants paid entire 20% advance of basic sale price amounting Rs.10,34,000/- to the opponents by way of two cheques drawn on SBI amounting to Rs.2,00,000/- and Rs.8,34,000/- dated 17/02/2013 and 16/03/2013, drawn in favour of 'Prathamesh Construction'. It is contended that the said amounts were debited and transferred to the bank account of opponent No.1 on 23/02/2013 and 19/03/2013 respectively.
3] It is contended that the opponent Nos. 3 and 4 mislead the complainant by false and fabricated representations. It is contended by the opponent Nos. 3 and 4 that they were the owners and have clear marketable title relating to the plots on which residential buildings were to be raised and have obtained all requisite clearances from the authorities and that bank loan would be available. It is contended that the opponent No. 3 informed that plot No. 189 was owned by the opponents and also made a passing reference that a small amount of balance payment was pending to be given to the original owners for plot number 190A as per the Sale Deed and that by next month the commencement certificate would be applied at City and Industrial Development Corporation Maharashtra Limited i.e CIDCO for the proposed construction at the said plots. It is contended that opponent Nos. 3 and 4 told the complainant that plot Nos.189 and 190A would be utilised for Phase 1 of the project 'Prathamesh Empire' which will be ready with all the amenities in 3 years i.e by mid 2016, and that 5 (CC/17/883) the adjoining Plot 188 was under dispute and would be amalgamated with this project as Phase 2, making it the biggest project in Ulwe. It is contended that the complainant No.1 was shown layout and floor plans of project 'Prathamesh Empire Phase 1' on plots 189 and 190A, Sector 20, Ulwe and details about this project and various other projects in the brochure of opponent No.1 and 2. It is contended that opponents advertised the project 'Prathamesh Empire' at various real estate websites and also at the site of plots 189 and 190A at Sector 20, Ulwe wherein huge Board was installed. Opponents also advertised the project at the facebook page of opponent No.1. It is contended that the complainant No.1 had withdrawn money from Defence Officers Provident Fund savings, which was growing at 8.8% interest compounded annually and tax free, with intent to pay for a house to live in after retirement. It is contended that the complainant No.1 had requested the opponent Nos. 3 and 4 on several times at their offices and telephonically for allotment and sale agreement for the promised 2 BHK flat at plots 189 and 190A, sector Ulwe. Complainant No.1 states that during the first year opponent Nos.3 and 4 kept attributing delays to CIDCO for issuance of commencement certificate for the project and kept demanding payment of additional 20% amount. It is contended that opponent Nos. 3 and 4 send revised floor plan of the project 'Prathamesh Empire' under cover of email dated 06/11/2013. Again on 18/05/2014 complainant No.1 once again requested the opponents to conclude sale agreement for 2 BHK flat promised by the opponents at plot Nos.189 and 190A, Sector 20, Ulwe. It is contended that, in the month of November 2014, complainant No.1 visited the site of plot Nos.189 and 190A, Sector 20, Ulwe and found that advertisement board removed and learnt from the CIDCO office that said plots were under dispute since long and not owned/ transferred to the opponents. Subsequently, it was verified from the CIDCO website that plots 189 and 190A, Sector 20, Ulwe have never been owned/ transferred to the opponents. It is contended that after coming to know about the factual status of plots 189 and 190A, 6 (CC/17/883) Complainant No.1 met opponent No.3 at company office on 11/02/2015 and expressed concern regarding false and fraudulent representation /assurance given for allotment of 2BHK flat at plots 189 and 190A, Sector 20, Ulwe and intimated intention to file police complaint. It is contended that, opponent No. 3 threatened that in case of police complaint is filed then no money would be refunded and complainants can spend life trying to get justice. Thereafter, opponent No. 3 offered issuance of allotment letter of another project at plot 30A, Sector 9, Ulwe for the purpose of security and agreed to provide in writing the following to the complainant No.1-
a) Plot 189 at Sector 20 Ulwe was under dispute with the farmer (owner), after that allotment and clearances from CIDCO would be taken.
b) Plot 190A, Sector 20, Ulwe had been allotted /registered in the name of opponent No.2 and that commencement certificate from CIDCO was intentionally not applied as the opponents were awaiting clearances of plot 189 so that amalgamation can be undertaken.
c) Payment of Rs.10,34,000/- had been taken by the opponents from the complainants for allotment of 2BHK flat at 7th floor @ Rs.4,700/- per sq.ft, in plots 189 and 190A at Sector 20 Ulwe.
d) No further payment would be asked from the complainants till such time bank loan for the promised flat was facilitated.
4] It is contended that on 24/02/2015 complainant sent email to the opponents and requested to discuss regarding allotment in plot 30A, sector 9 Ulwe prior to taking any action as the complainant No.1 would like to have all the endorsement /assurances on aspects indicated above. Opponent Nos. 3 and 4 kept delaying on the commitments made on 11/02/2015 and ultimately did not comply. It is contended that, in the month of June 2015, opponents on their own decided and emailed an allotment letter dated 23/03/2015 for flat No.704, 7 (CC/17/883) plot 30A, sector 9, Ulwe. Complainant No. 1 tried to speak to the opponents and made attempts to meet them at the office of opponent No.2 to object regarding foul play. However, opponent Nos. 3 and 4 avoided. During such visits, complainant No.1 was handed over by the company office receptionist two more different allotment letters for the same property. All the three allotment letters were different and addressed only in the name of complainant No.1. It is contended that in October 2015, Complainant No.1 confronted the opponent No.3 at the office of the opponent No. 2, wherein following points transpired-
a) the complainant No.1 cried foul regarding allotment letter for 2BHK flat in plot 30A, Sector 9, Ulwe despite refusal.
b) Complainant No.1 cried foul play that no written assurance regarding plots 189 and 190A had been given, as what promised by the opponent No. 3 on 11/02/2015.
c) The complainant No.1 cried foul that opponents are avoiding telephonic calls and meeting in person.
d) The complainant No.1 intimated intent to file complaint with the police in view of the behaviour and continued false representations of opponent Nos. 3 and 4.
e) The opponent No. 3 requested to ignore allotment letters which are not genuine, since the intent was to give some kind of assurance /security to the complainants.
f) The opponent No. 3 intimated that the dispute regarding plot 189 was likely to be resolved with the owner /farmer by end December 2016 and thereafter sale agreement /registration of promised to BHK flat in project 'Prathamesh Empire' at plots 189 and 190A, Sector 20, Ulwe would be undertaker in favour of the complainants.
8 (CC/17/883) 5] It is contended that on 28/12/2015, complainant No.1 visited the office of the opponent alongwith his father and the opponent No.1 told that civil case had been filed in the Hon'ble High Court against the owner of plot 190A and that the Hon'ble High Court would soon adjudicate in their favour and urged to give last chance with time of 3 months i.e. by 31/03/2015 for concluding the sale agreement for 2BHK flat booked at plot 189 and 190A, Sector 20, Ulwe and promised that failing which the advance money would be refunded with interest. It is contended that the complainant wrote letter dated 29/02/2016 to the opponents summarising all the events and requesting for sale agreement for the flat booked at plots 189 and 190A, Sector 20, Ulwe by 31/03/2016 or refund of advance amount with interest. Complainant No.1 also wrote another letter dated 06/06/2016 summarising the events and all the requests made by the complainants to the opponents regarding 2BHK flat at plots 189 and 190A, Sector 20, Ulwe, and intimated that in case opponents do not comply by 30/06/2016, complainants would file complaint with police. It is contented that on 04/07/2016 complainants read article in the Times of India, regarding the proactive action being taken by the police authorities against the errant builders. The complainant No.1 went to the police station, CBD Belapur, on 15/07/2016 to register FIR of fraud, cheating and harassment against the opponents. The police recorded the statement of complainant No.1 and told that the decision to register FIR would be taken by the higher authorities. It is contended the on 26/07/2016 complainant received letter by email from the opponents requesting to issue a letter of cancellation of allotment for flat No. 704 in Plot No. 30A, Sector 9, Ulwe and for refund. It is contended that on 28/07/2016 complainant No.1 responded by post and under cover of email dated 29/07/2016, once again narrating all the facts since February 2013, and requesting the opponents to refrain from applying false tactics. It was informed that since the booking amount was for 2BHK flat at plots 189 and 190A, Sector 20, Ulwe and also conveying that it did not matter whether the allotment letter issued falsely for 9 (CC/17/883) flat in project at plot 30A, sector 9, Ulwe was cancelled or not. It is contended that, on 28/07/2016 complainant No.1 used the platform available on the website of Navi Mumbai Police with request of lodging FIR. Complainant No.1 under the cover of email dated 09/08/2016 conveyed to Navi Mumbai Police also telephonically as well as in person to the Investigating officer of CBD Belapur police station that on 08/08/2016 at 18.15 hrs., opponent No.4 called from mobile and on the mobile of complainant No.1 threatening that neither the flat nor complete refund will be given if complaint filed with police is pursued. It is contended that on 05/09/2016 complainant No.1 was called by the EOW-II, CBD Belapur for investigation where his statement was recorded. Consequent to the investigations by the CBD police station and EOW-II, opponents by email dated 19/09/2016 sent scanned images of post dated cheques totalling to Rs.10,34,000/- and falsely stated that it is as per the mutual agreement. It is contended that on 06/10/2016 complainant No.1 returned the sealed envelope which was received and assuming to contain the post-dated cheques. It is contended that vide email dated 25/10/2016 complainant No.1 received one scanned image of D.D. of Rs.10,34,000/- with a false message of, "as agreed by you as a part of settlement you instructed me to send the D.D. to you by courier." It is contended that on 08/11/2016 complainant No.1 replied stating that the physical copy has not been received and neither there had been any mutual settlement whereby complainants agreed to received refund of booking amount without interest. It is contended that on 03/11/2016 FIR was lodged by the CBD Belapur police station. It is contended that the complainant No.1 informed to EOW-II that FIR has been filed. EOW-II decided to not to take any action against the opponents. It is contended that the opponent Nos. 3 and 4 filed Criminal Anticipatory Bail Application 2174 of 2016 before the Hon'ble High Court, Bombay. Said application was opposed by the complainants. But the Hon'ble High Court granted bail to the opponents. It is contended that the opponents squarely fall foul of the compliances necessary under the provisions 10 (CC/17/883) of Maharashtra Ownership of Flats Act, 1963. There are clear violations of the provisions of Articles, 3, 4 and 5 of the MOFA. It is contended that the opponents are guilty of not providing information about the property booked by the complainants, taking 20% advance amount towards booking of 2 BHK flat admeasuring 1100 sq.ft at a project site, for which opponents do not have land ownership /lease rights /necessary clearance and not concluded any agreement of not maintaining a usage of account of the money and not used the amount for the purpose meant to be utilised. It is contended that the opponents have caused recoverable damage to the complainants by denying a flat which was booked with the purpose to stay with family after retirement of complainant No.1 from 25 years of service in Indian Navy. It is contended that the flat in project 'Gami Trixie' at adjacent plot 187, Sector 20, Ulwe is for sale at the rate of Rs.7100/- per sq. ft in project 'Siddhivinayak Utopia' at plot 191, Sector 20, Ulwe @ Rs.7250/- per sq. ft taking the lower rate of Rs.7100/- per sq.ft the difference in only the basic price for 1100 sq. ft flat amounts to Rs.26.4 lakhs i.e. an escalation of price by 50% from February 2013 todate. Taking into account other associated charges, the estimated difference would be approximately Rs.35,00,000/-. Further the complainants states that with upcoming new airport and MTHL Bride in near vicinity, the prices are likely to appreciate drastically. It is contended that besides being subjected to mental agony, harassment and inconvenience, expenditure had been incurred in hiring legal services, communication and other charges. It is contended that the opponents are guilty of deficiency in service as well as playing unfair trade practice with the complainants. Hence, complainants filed present complaint claiming refund of the amount of Rs.10,34,000/- alongwith interest @ 18% p.a. Complainants have also prayed for compensation and costs.
6] Notice of this complaint was served upon the opponents. Opponents appeared and filed their written version denying the allegations made in the 11 (CC/17/883) complaint. It is contended that the complainants are the investors. They wanted to invest their money in opponent Nos. 1 and 2 projects at Ulwe. They wanted to invest in flat for resale and for commercial purpose. It is contended that there was no concluded contract between the complainant and the opponents. It is contended that the alleged flat number, on which floor was not known. It is contended that it is not known whether alleged flat was on plot 189 or 190A. It is contended that the total consideration was not known. It is contended that the complainants have committed forgery of documents viz Exh.B and Exh.C on the back of the alleged visiting card. Opponent No. 3 never wrote anything behind the visiting card and handed over to the complainant No.1. It is contended that the complainant was made aware about the status of the plot No.189 and 190A at Sector 20, Ulwe before receiving token amount. It is contended that opponents never made any false promise or committed any offence as alleged in the complaint. It is contended that the complainants were aware of the status of the plot/ project. Complainant No.1 alongwith broker/ agent /builder of M/s. Sunny Real Estate, Ulwe, was aware of everything of the project from inception when the property and the documents pertaining to the subject project were seen by the complainant in the office of the opponents. It is contended that opponents never violated provision of any law. It is contended that the complainants have throughout the complaint pleaded on their requirement for requirement of home after 25 years of service in Indian Navy and hence booked a flat in the project of the opponents. It is contended that the complainants were made aware that it is not certain about the when the project will take off, in spite of the same complainant No.1 insisted the opponents to accept the token. However, at the request of the complainants, opponents offered alternative flat in the vicinity. Thereafter, on the request of the complainants, the opponents issued allotment letters as requested and though as a stated in the pleadings about the need of house, still the complainants back out and refused to accept the same. Opponents have denied all the allegation, 12 (CC/17/883) statements, submissions and contentions made in the complaint, which are inconsistent or contrary thereto to the allegations made on the made in para 1 to
8. It is contended that the opponent No.1 is proprietary concern of opponent No.4. Opponent No. 2 is a private limited company and opponent No. 4 is a Director of the same. Opponent No. 3 is not related to the opponent Nos.1 and 2 and opponent No. 3 has unnecessarily made as party respondent. It is contended that opponents have received Rs.10,34,000/- as token towards investment of complainants for the purpose of resale and commercial purpose. As far as contents of para 9 to 38 of the complaint are concerned, opponents repeat, reiterate and confirm what is stated in the said paras are all denied it is denied. It is denied that the complainant No.1 was misled by false or fraudulent representations that the opponents are owners or has clear or marketable title relating to the plots on which residential buildings were to be raised or have obtained all requisite clearances, etc. as alleged. It is contended that the complainant No.1 was shown all the documents. It is contended that there was no litigation in plot No.190A, but after the receipt of token amount from the complainant in February and March 2013, a suit was filed against Prathamesh Construction in June 2013. It is contended that in respect of plot No.189, the original owners wanted more money than what was agreed and in view of the same Prathmesh Infrareality Pvt. Ltd. had to file suit for specific performance in the year 2014 and the suit is still going on in Panvel Court. It is contended that the opponents never issued brochure in the year 2013 -2014 and they never give any advertisement on facebook or real estate website regarding the project. It is contended that the receipts issued by the opponents contained the token money, which was not refundable, still the opponents had returned the token money. Opponents have denied that the token was received for the allotment of flat @4700/- per sq.ft. as alleged. It is denied by the opponents that the opponents have committed violations of MOFA. Opponents have denied that they decided or emailed allotment letter for the flat No. 704, Sector 9 to the 13 (CC/17/883) complainants. It is contended that the opponents have shown their bonafide in returning the token amount by sending cheques and D.D. However, complainants in order to extort money did not accept the same and instead lodged FIR. It is contended that the complaint is false and bogus and be dismissed with costs.
7] To prove the complaint, complainant has produced affidavit of evidence and produced on record list of documents as per the list (Exh. C-3). 8] Opponent No. 4 also filed evidence affidavit of Shri.Ajit Shrinath Singh. They also relied upon the documents.
9] After considering rival contentions of both the parties, submissions made before us and considering the record, following points arise for our determination. We have recorded our findings against the same for the reasons given below -
Sr.No. POINTS FINDINGS
1 Whether the complainants are the In the affirmative
consumers under the provisions of
Consumer Protection Act?
2 Whether the complainants booked flat In the affirmative
in the project floated by the opponents
'Prathamesh Empire'?
3 Whether the opponents are guilty of In the affirmative
deficiency in service and unfair trade
practice ?
4 Whether the complainants are entitled Partly
for the relief claimed?
5 What order? As per final order
14 (CC/17/883)
-: R E A S O N S :-
As to the Point No.1-
10] It is the basic case of the complainants that in the year 2013 they were in need of accommodation to settle in Mumbai after retirement from the service of complainant No.1. They booked 2BHK flat in the project floated by the opponents on the 7th floor, admeasuring approximately 1100 sq.ft, at plots 189 and 190A, Sector 20, Ulwe for total consideration of Rs.60,38,000/-. It is the case of the complainants that, they paid entire 20% advance of basic sale price amounting Rs.10,34,000/- to the opponents by way of two cheques drawn on SBI amounting to Rs.2,00,000/- and Rs.8,34,000/- dated 17/02/2013 and 16/03/2013, drawn in favour of 'Prathamesh Construction'. Said amounts were debited and transferred to the bank account of opponent No.1 on 23/02/2013 and 19/03/2013 respectively. Complainants have produced on record copy of bank statement wherein the entries of cheques of Rs.2,00,000/- and Rs.8,34,000/- are shown. It appears from the statement that Rs.2,00,000/- was debited from the account of the complainant on 23/02/2013 and cheque of Rs.8,34,000/- was debited on 19/03/2013. Said cheques were issued in the name of 'Prathamesh Construction'. Complainants have also produced on record the receipt of Rs.10,34,000/- issued by the Prathamesh Construction wherein it is mentioned that they received cheque of Rs.2,00,000/- and Rs.8,34,000/- drawn on SBI for the flat at plot Nos.189 and 190A, Ulwe. Said documents are not denied by the opponents. Similarly, complainants have also produced on record floor map and design of the building known as 'Prathamesh Empire'. It is the part of the brochure.
According to the opponents they never issued brochure. But the said is false because copy of brochure is produced on record by the Complainants. Complainants have also produced on record ISO 9001:2008 certificate issued in the name of the opponent No.1. Complainants have also produced on record 15 (CC/17/883) advertisement published on website which shows that the building 'Prathamesh Empire' was launched by the Builder. Some details are also given in the said advertisement. Therefore, it is proved by the complainants that the opponents have started their project by name 'Prathamesh Empire' on plot 189 and 190A, Sector 20, Ulwe, Navi Mumbai. The receipt issued by the opponent No.1 dated 18/04/2013 (Exh.E) also equivocally speaks about the payments made by the complainants to the opponents for 2BHK flat on plot 190A and 189 at Ulwe.
11] Complainants have produced on record letter dated 18/05/2014. It was issued by the Prathamesh Group wherein it is categorically mentioned that the Memorandum of Understanding / Sale agreement of promised 2 BHK flat for which clearance is pending from CIDCO and for which the complainant had paid more than 20% of the total consideration i.e. Rs.10,32,000/- in March 2013. It appears that the layout plan for Ulwe sectors in which there are changes in sector 9. Details of project at sector 9, including plot number, floor plan, layout is available alongwith letter -files of 'Prathamesh Empire' was attached with the above letter.
12] It cannot be said that the complainants had simply invested the amount with opponents. No-doubt complainants have booked the flat their own use and occupation and accordingly bank statements are produced on record. Similarly documents produced on record at page C-13 to C-36 established that the opponents have launched their project as 'Prathamesh Empire' and they have advertised the same. Therefore, it can be said that complainants had booked the flat with the opponents. There is nothing on record to establish that the complainants were simply investor.
13] It has become clear that opponents started their housing project inviting people at large to book the flat and according they accepted 20% of the total 16 (CC/17/883) consideration from the Complainants. Accordingly receipts were issued. Similarly, on 23/03/2015 opponents had issued letter to the complainants stating that they were allotted residential flat No.704, 7th floor, in their project 'Prathamesh Symphony', at plot 30A in Sector 9, Ulwe and the amount was received from the complainants was adjusted towards consideration of the said flat. So it can be said that the complainants had booked the flat in the project floated by the opponents in 'Prathamesh Empire', but the project could not be completed within time. Therefore, at the instance of the complainants, opponents had offered substitute flat, in the same locality, by letter dated 23/03/2015 (Exh C-40). Complainants have produced on record number of emails and letters of opponents, which shows that the complainants were the flat purchasers and not the investors. Thus, we hold that the complainants are the flat purchasers and they booked the flat for their own use and occupation. Therefore, they are the 'consumers' under the provisions of the Consumer Protection Act.
14] Complainants have stated that they had paid amount of Rs.10,34,000/- to the opponents. Accordingly, opponent No.3 gave acknowledgement on overlap of his visiting card. Said document is produced on record at Exh.C, which is denied by the opponent No.3. It is true that no opinion of handwriting expert was sought by the complainants to prove the contents of the said document. It is the fact that the opponent No.1 had accepted amount of Rs.10,34,000/- from the Complainants and the said fact is proved by the Complainants by producing bank statement on record (Exh.D). Similarly, opponents had issued receipts to that effect (Exh.E). Therefore, we need not go into the veracity of the document at Exh.C. 15] Complainants had paid the first installment of Rs.2,00,000/- vide cheque drawn on SBI dated 17/02/2013 and second installment of Rs.8,34,000/- was 17 (CC/17/883) paid vide cheque drawn on SBI dated 16/03/2013. Thereafter since filing of the complaint, there was no progress in the project. Similarly, opponents had also offered substitute flat to the complainants, which they had denied. Complainants had also filed complaint against the opponents vide letter dated 15/07/2016 and accordingly FIR was lodged. Opponent Nos.3 and 4 came to be released on bail by the Hon'ble Bombay High Court on 24/04/2017. So it can be said that since inception opponents simply gave promises and assurances to the complainants that they would complete the project as soon as they received the Commencement Certificate from the CIDCO. But due to the land dispute the project could not be started.
16] It is the case of the opponents that the complainants were well aware of the dispute regarding land owners and the opponents and still the complainants paid token amount. But we are not inclined to accept the said statement because till 2015 complainants were hopeful that they will get the agreement registered and accordingly opponents assured them to execute the agreement to sale. Had the complainant mere investor, he would not have insisted upon execution of agreement to sale. Similarly, opponents would not have shown willingness to execute the agreement to sale in favour of the complainants. Therefore, it can be said that opponents used to assure the complainants that they would execute the agreement to sale. Complainants also written detailed letter to the opponents dated 28/07/2016 wherein they had given complete history of their case. Thereafter, complainants lodged FIR in pursuance of the same. Opponents approached Hon'ble Bombay High Court for bail and so it cannot be said that the complainants filed false and bogus complaint against the opponents. They had requested the opponents to proceed with the project or refund the amount. But it appears that the opponents did not pay any heed to it. Therefore, ultimately, complainants had no choice but to approach police. Accordingly FIR came to be registered against the opponents. Opponents had 18 (CC/17/883) accepted the amount towards the booking of the flat but did not do anything for 4 years and even thereafter. Therefore, it can be said that the opponents are guilty of deficiency service.
17] It is also proved on record that the opponents had accepted the amount for booking but failed to excuse the agreement to sale for one or the other ground. They accepted more than 20% of the consideration of flat but failed to execute the agreement to sale. Therefore, they are guilty of deficiency in service and unfair trade practice.
18] Complainants were kept out of their amount since February 2013 till today. The project was never started. No plausible reason was given by the opponents for the delay in the project. Therefore, the complainants are entitled for the refund of amount paid by them to the opponents alongwith interest. Complainants were made to run from pillar to post for last about 10 years. They pursued their cause with police as well as in the Court. Therefore, Complainants have to spend their money and time due to the illegal acts of the opponents. So the complainants are entitled for compensation for mental and physical harassment as well as costs incurred by them for pursuing the present complaint. Hence, we proceed to pass the following order-
ORDER 1] Complaint is hereby partly allowed.
2] Opponent Nos.1 to 4 are held liable for playing unfair trade practice and deficiency in service.
3] Opponent Nos.1 to 4 are jointly and severally directed to refund amount of Rs.10,34,000/- to the complainant alongwith interest @12% p.a. from the date of respective 19 (CC/17/883) payment till its realisation within 30 days from the date of receipt of copy of this order. In default, the said amount shall carry interest @18% p.a. from the date of respective payments till its realisation.
4] Opponent Nos.1 to 4 are jointly and severally directed to pay the amount of Rs.3,00,000/- towards compensation for mental and physical harassment to the complainant within 90 days from the date of receipt of copy of this order.
5] Opponent Nos.1 to 4 are jointly and severally directed to pay amount of Rs.75,000/- towards costs of litigation to the complainants within 90 days from the date of receipt of copy of this order.
6] Copy of this order be supplied to both the parties.
[Justice S.P.Tavade] President [S.T.Barne] Judicial Member rsc