State Consumer Disputes Redressal Commission
Mr. Dinesh J. Singh vs M/S Rna Builders (Ng) And Anothers on 6 March, 2013
Daily Order
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint Case No. CC/12/205
MR. DINESH J. SINGH
ROOM NO.5, SIDHARTH
NAGAR
SAI PRASAD CHAWL
90 FT ROAD, CHARKOP
KANDIVALI WEST
MUMBAI - 400067
...........Complainant(s)
Versus
1. M/S RNA BUILDERS
(NG)
ADDRESS:- RAJA
BAHADUR MANSION
1ST FLOOR,
28 MUMBAI SAMACHAR
MARG
FORT, MUMBAI -
400023
2. MR. NARINDERPAL
GUPTA,
PROPRIETOR OF:-
M/S. RNA BUILDERS
(NG),
ADDRESS:- RAJA
BAHADUR MANSION,
1ST FLOOR,
28, MUMBAI SAMACHAR
MARG,
FORT, MUMBAI -
400 023.
............Opp.Party(s)
BEFORE:
HON'BLE MR. S.R.
Khanzode PRESIDING MEMBER
HON'BLE MR. Dhanraj
Khamatkar Member
PRESENT:
Adv. Smt. Shaila
Pandey for the Complainant
Adv. Manjoj Mhatre
alongwith Adv. G. S. Sabharwal proxies for Mahimtura & Company on
behalf of the Opponents.
ORDER
Per -
Hon'ble Mr. Dhanraj Khamatkar, Member This is a consumer complaint filed on 30/8/2012 by Mr. Dinesh J. Singh (hereinafter referred to as 'the Complainant' for the sake of brevity) against M/s. RNA Builders (NG), the Opponent No.1 herein and Mr. Narinderpal Gupta, proprietor of M/s. RNA Builders (NG), the Opponent No.2 herein, under the consequential deficiency in service on the part of the Opponents. The complaint is numbered as 205 of 2012. Facts in brief can be summarized as under:-
[2] Initially the Complainant filed a Consumer Complaint No.174 of 2010 before the South Mumbai District Consumer Disputes Redressal Forum. The complaint was heard by the District Forum and thereafter, by an order dated 24/8/2012 the District Forum returned the complaint to the Complainant for want of pecuniary jurisdiction. The original complaint was returned to the Complainant on 28/8/2012 and thereafter, present complaint is filed on 30/8/2012.
[3] It is the case of the Complainant that he booked a flat bearing No.603, admeasuring 910 sq. ft. in built-up area (558 sq. ft. carpet area) situated on the sixth floor of 'A' Wing in the building to be constructed by the Opponents as 'NG-Sterling' @ `2,625/- per sq. ft. According to the Complainant out of the total consideration he paid to the Opponents an amount of `2,72,997/- on 22/9/2009. It is further contended that on 25/9/2009 an agreement to sale was registered with the Sub-Registrar. Schedule of payment is incorporated on internal page (04) of the agreement dated 25/9/2009. In the agreement for sale total consideration agreed is shown as of `18,20,000/-. Apart from this at the time of booking an amount of `51,000/- was deposited by the Complainant with the Opponents towards Earnest Money and the Opponents have acknowledged receipt of the same by issuing a receipt dated 6/9/2009. The Complainant further states that the Opponents have issued a demand letter dated 21/4/2010 which was received by the Complainant on 23/4/2010 demanding an amount of `1,15,150/-. The letter was not accompanied with the architect's certificate and the demand was shown towards the plinth work. The Complainant was out of Mumbai during the period from 24/4/2010 to 4/5/2010 and on 5/5/2010 the Complainant visited the site of the proposed building alongwith his relative Mr. Suresh Bhan Singh and found that on the site slab was still not completed. However, the Complainant was ready to make the payment as per letter dated 21/4/2010. The Complainant was asked to visit the head-office of the Opponents.
Accordingly, the Complainant contacted the head-office of the Opponents on telephone at which time Mrs. Komal, an employee of the Opponents, refused to accept the payment.
On 6/5/2010 the Complainant personally visited the office of the Opponents with a cheque but the Opponents refused to accept the cheque. Hence, the Complainant sent the cheque through speed post alongwith covering letter dated 11/5/2010 and also the Complainant showed willingness to pay the interest for the late payment as provided under the agreement.
[4] The Complainant contended that he received a letter dated 5/5/2010 wherein it is stated by the Opponents that on account of non-payment the booking of the flat stands cancelled. It is further stated that if the Complainant wants to save the booking of flat No.603, the Complainant should make payment of entire consideration i.e. `15,47,003/- within a period of fifteen days or enter into a fresh agreement at the present prevalent property rates. Further, the Complainant contended that on 20/5/2010 the Complainant received a letter dated 17/5/2010 from the Opponents wherein the Opponents made false contentions and once again cancelled the booking of Flat No.603.
[5] The Complainant contended that the Opponents demanded the money when it was not due and by not accepting the money when offered the Opponents have committed gross deficiency in service and indulged into unfair trade practice. On these main grounds and other grounds as set out in the complaint the Complainant has filed this complaint seeking direction as against the Opponents to hand-over to him the possession of flat as agreed in the agreement alongwith consequential relief of compensation and costs.
[6] The complaint was admitted on 7/9/2012 and the Opponents were directed to file their written version alongwith a say on the application for grant of an interim relief as filed by the Complainant.
[7] Both parties were heard on the application for grant of interim relief as filed by the Complainant and the learned counsel for the Opponents was fair enough to state that the Opponents shall not create third party interests in respect of the flat during the pendancy of the complaint and accordingly, the Opponents were directed not to create third party interests in respect of the flat till final disposal of the complaint.
[8] On behalf of the Opponents, the Opponent No.2 has filed a written version inter-alia contending that the Opponent No.2 is an authorized signatory and not the proprietor of the Opponent No.1 as alleged by the Complainant. The Opponents contended that the complaint is false, frivolous and vexatious and same deserves to be dismissed. The Opponents admitted that initially the Complainant paid an amount of `2,72,997/-. It is contended that the Complainant was extremely irregular in making payment as demanded by the Opponents and, therefore, the Opponents vide their letter dated 5/5/2010 rightly terminated the agreement and hence, relationship between the Complainant and the Opponents have come to an end on 5/5/2010. It is also contended by the Opponents that it was agreed by the Complainant that he will make the payments as per demands made by the Opponents. The Opponents contended that it was agreed by the Complainant that he will make the payment within a period of fifteen days from the date of execution of the agreement and, therefore, question of stage-wise payment by the Complainant does not arise. In paragraph (19) of the written version, it is contended as follows:-
"I state that since the Complainant failed to make entire payment within a period of 15 days as agreed by him, the Opposite Party vide its letter dated 21 April 2010 called upon the Complainant to make payment of Rs.1,15,150. It is true that the said demand letter was not supported by architect's letter. However, as per clause 6 of the agreement entered into between the parties, the Complainant at all reasonable time was entitled to take inspection of architect's report/certificate to satisfy that work which is claimed by the Opposite Party is completed or not."
[9] It is further contended that the since the Opponents have terminated the agreement on 5/5/2010 on account of non-payment, the cheque dated 6/5/2010 sent by the Complainant was returned vide a letter dated 17/5/2010. On these main grounds it is contended that there is no deficiency in service on the part of the Opponents and hence it is prayed that the complaint may pleased be dismissed.
[10] Both the parties were directed to file their respective affidavits of evidence as contemplated under Section-13(4) of the Consumer Protection Act, 1986. Accordingly, the Complainant has filed his own affidavit and on behalf of the Opponents, the Opponent No.2 has filed his affidavit.
[11] On 11/12/2012 the parties closed their respective sides of evidence by filing pursis to that effect.
Thereafter, parties were directed to file their respective briefs of written arguments as per Regulation-13(2) of the Consumer Protection Regulations, 2005. Accordingly, the parties have filed their briefs of written arguments.
[12] We heard Adv. Smt. Shaila Pandey on behalf of the Complainant and Adv. Manjoj Mhatre alongwith Adv. G. S. Sabharwal proxies for Mahimtura & Company on behalf of the Opponents.
[13] In the present case a short question arises as to whether by unilaterally terminating the agreement there is deficiency in service on the part of the Opponents and as to whether the Complainant is entitled for possession of the flat.
[14] Registered agreement dated 25/9/20009 executed between the Complainant, as the Purchaser and the Opponents, as the Promoters is produced on the record. As per Section-91 of the Indian Evidence Act, 1872 when the terms of contract have been reduced to the form of a document no evidence shall be given in proof of the terms of such contract except the document itself. Their Lordships of the Hon'ble Supreme Court in Civil Appeal No. 866 of 2007 (Arising out of SLP (C) No. 17702 of 2006) [In the matters of Bhandari Construction Company Vs. Narayan Gopal Upadhye] decided on 20/2/2007 observed that when the terms of the transaction are reduced to writing, it is impossible to lead evidence to contradict its terms in view of Section 91 of the Court in Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd. ~ 1996-SCC-(4)-704, held that a person who signed, a document containing contract and terms is normally bound by them even though he has not read them, and even though he is ignorant of their precise legal effect. Therefore, in the present case, the parties cannot go beyond the terms contained in the registered agreement dated 25/9/2012.
[15] As per clause No.(03) of the agreement, the Opponents agreed to sell to the Complainant a flat bearing No.603, admeasuring 558 sq. ft., in carpet area, on the sixth floor of 'A' Wing of the proposed building 'NG Sterling' for a consideration of `18,20,000/-. By a receipt dated 6/9/2009 the Opponents admitted receipt of an amount of `51,000/- from the Complainant towards Earnest Money leaving balance consideration amount of `17,69,000/-. Out of such balance consideration the Complainant paid to the Opponents an amount of `2,21,997/-. Receipt of this amount is also acknowledged by the Opponents vide a Receipt No.24 dated 22/9/2009. Thus, now the Complainant is supposed to pay balance consideration amount of `15,47,003/-. The Complainant was supposed to pay the balance consideration amount in installments as per schedule of payment as enumerated in Clause No.(03) of the agreement. As per clause No.(06) on internal page (06) of the agreement, while making a demand to the Complainant to make the payment, the Opponents were under an obligation to intimate the Complainant about the progress of construction work and it was necessary on the part of the Opponent to keep the certificate of an architect ready for inspection of the Complainant.
[16] The Opponents issued a letter dated 21/4/2010 calling upon the Complainant to pay an amount of `1,15,150/- within a period of fifteen days. In the said letter the Opponents informed the Complainant that the plinth work has been completed. However, the Opponents neither enclosed the architect's report to support this demand nor called upon the Complainant to inspect the architect's report in their office. However, when the Complainant went to the site he could not see the architect's report on the site and the construction work on site had not reached the stage what was claimed by the Opponent.
Thus, it cannot be reasonably presumed that while making a demand to the Complainant on 21/4/2010 the Opponents had completed the work up to plinth level. Moreover, the Complainant states that he received this demand letter on 23/4/2010. Thus, he was supposed to make the payment of the amount within a period of fifteen days thereafter. That period would have expired on 8/5/2010. The Complainant tried to tender a cheque for an amount of `1,15,510/- to the Opponents on 6/5/2010 which the Opponents refused to accept. Thus, the Complainant tried to tender the amount in time and thus, there is no breach of agreement on the part of the Complainant. However, before expiry of stipulated period of fifteen days, the Opponents cancelled the agreement vide a letter dated 5/5/2010. As per clause No.(09) of the agreement, in case of default on the part of the Complainant to pay the amount as demanded the Opponents, the Opponents were entitled to terminate the agreement on giving fourteen days prior notice in writing and in such a case, the Opponents were under an obligation to refund all the amounts received from the Complainant upon deducting the earnest money. Admittedly, in the present case, before so-called unilateral termination of the agreement, the Opponents neither issued to the Complainant a fourteen days prior notice in writing nor refunded the amount to the Complainant. Thus, this amounts to breach of agreement on the part of the Opponents. There is no proper termination of agreement as contemplated under the agreement and, therefore, we hold that the registered agreement dated 25/9/2009 is well in force and rights of the Complainant accrued under the said agreement still subsists. By not following due procedure for so-called termination of agreement, there is deficiency in service on the part of the Opponents. We hold accordingly.
[17] The Complainant has claimed possession of the flat. He has shown his readiness to pay the balance consideration amount to the Opponents. As narrated earlier, the Complainant is supposed to pay to the Opponents, the balance consideration amount of `15,47,003/-. Therefore, upon accepting this amount from the Complainant the Opponents need to be directed to hand over possession of the flat to the Complainant.
[18] The Complainant has claimed from the Opponents an amount of `15,00,000/- by way of compensation. With regard to award of compensation under Section-14(1)(d) of the Consumer Protection Act, 1986; Their Lordships of the Hon'ble Supreme Court in Consumer Unity & Trust Society, Jaipur Vs. The Chairman & Managing Director, Bank of Baroda, Calcutta & Anr. ~ 1986-95-CONSUMER-1546-(NS); observed as follows :-
"Negligence is absence of reasonable or prudent care which a reasonable person is expected to observe in a given set of circumstances. But the negligence for which a consumer can claim to be compensated under this sub-section must cause some loss or injury to him.
Loss is a generic term. It signifies some detriment or deprivation or damage. Injury too means any damage or wrong. It means 'invasion of any legally protected interest of another'.
Thus the provisions of Section 14(1)(d) are attracted if the person from whom damages are claimed is found to have acted negligently and such negligence must result in some loss to the person claiming damages. In other words, loss or injury, if any, must flow from negligence."
In the present case, a legal injury is caused to the Complainant due to negligence on the part of the Opponents and, therefore, in order to recognize the legally protected rights of the Complainant, he needs to be compensated. To have an own house is a dream of every man. In the instant case the Complainant has booked the flat on 6/9/2009.
However, without any fault on the part of the Complainant, he is deprived of his dream house. We condemn such high-handed attitude and approach on the part of the Opponents. This case is the best example of how law-breakers are more wise than law-makers. The Opponent No.2 tried to contend that he is not the proprietor but an authorized signatory of the Opponent No.1. However, on page No.(179) of compilation there is an affidavit dated 17/10/2012 sworn by the Opponent No.2 in his capacity as a proprietor of the Opponent No.1. This explains the conduct of the Opponents. Hence, in the given set of circumstances, we feel that if the Opponents are directed to pay to the Complainant, a sum of `2,00,000/-
towards compensation, would meet the ends of justice.
[19] The Complainant has also claimed from the Opponents an amount of `1,46,000/- by way of compensation towards the loss suffered by him in his business.
However, he not corroborated this claim by filing any cogent documentary evidence. Thus, it appears to be a hypothetical claim.
Moreover, it is too remote to cause of action and, therefore, this particular claim deserves to be dismissed.
For the foregoing reasons we hold accordingly and pass the following order:-
ORDER The complaint is partly allowed.
The Complainant is hereby directed to deposit with the Opponents, balance consideration amount of `15,47,003/- within a period of two months from the date of this order and if, the Opponents refuse to accept this amount then in a such case, within a period of eight days thereafter, the Complainant shall deposit said amount with the State Commission.
Opponents are jointly and severally directed to hand-over to the Complainant, vacant and peaceful possession of flat bearing Nos.603, admeasuring 558 sq. ft. in carpet area, situated on the sixth floor of 'A' Wing of the building known as 'NG Sterling', more particularly described in the registered agreement dated 25th September, 2009 within a period of fifteen days from deposit of the amount by the Complainant, as ordered here-in-above.
The Opponents are jointly and severally directed to pay to the Complainant an amount of `2,00,000/- by way of compensation towards mental agony and harassment.
The Opponents are jointly and severally directed to pay costs of `25,000/- to the Complainant.
The Opponents shall pay the amounts, as ordered here-in-above, to the Complainant within a period of forty-five days and failing which the Complainant shall be entitled to recover these amounts from the Opponents together with interest thereon @ 12% p.a., as from the date of expiry of stipulated period of forty-five days till realization of the amounts.
Rest of the claims of the Complainant stands rejected.
Pronounced on 06th March, 2013 [HON'BLE MR. S.R. Khanzode] PRESIDING MEMBER [HON'BLE MR. Dhanraj Khamatkar] Member KVS