State Consumer Disputes Redressal Commission
Bhalesh Bhupatlal Doshi vs Vastu-Shilp Developers on 29 June, 2022
CC-17-1161
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Consumer Complaint No. CC/17/1161
Mr.Dilipkumar Bhupatlal Doshi
Through Power of Attorney Holder
Mr.Bhalesh Bhupatlal Doshi
Address: 701, Neeta Tower,
Jain Stanak, Mamlatdarwadi 1
Malad (W), Mumbai 400 064
Versus
1. Vastu-Shilp Developers
...........Complainant
Address : Jaiguru,
Pandurangwadi,
Lane No.2, Goregaon
(East), Mumbai 400 063.
2. Mr.M.B. Mhatre
Address : Jaiguru,
Pandurangwadi, Lane No.2,
Goregaon (East),
Mumbai - 400 063. ............Opponents
3. Udyam Kunj CHS Ltd.
Address : Off Rani Sati
Marg, Opp. Navjivan
School, Navjeevan School
Road, Malad (East),
Mumbai-400 097.
BEFORE:Justice S.P.Tavade, President
Smt.S.T.Barne-Judicial Member
PRESENT: Complainant is present along with
Advocate Supriya Patil i/b.
Advocate Uday B.Wavikar
None present for opponents
ORDER
(29th June, 2022)
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CC-17-1161
Per Hon'ble Smt.S.T.Barne, Judicial Member
1. Complainant-Mr.Dilipkumar Bhupatlal Doshi has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986 by alleging deficiency in service against opponents. Complainant is consumer. Opponent No.1 is a Proprietary Firm. Opponent No.2 is the Proprietor of opponent No.1. Opponent No.1 is engaged in the business of construction of building and development of plots. Opponent No.3 is the Society which had appointed opponent No.1 for redevelopment of the plot in which the complainant had booked a flat.
2. Facts giving rise to present complaint in short are as under :-
Complainant was searching for residential flat and during search he came to know that opponent No.1 was redeveloping a project named as "Udyam Kunj" at Udaym Kunj CHS Ltd. Off. Rani Sati Marg, Opp. Navjivan School, Navjivan School Road, Malad (East), Mumbai - 400 097. Opponents lured the complainant to purchase a flat bearing No.402 on 4th floor, admeasuring 520 sq.ft. carpet area, 'A' wing in the said project for total consideration of Rs.19,50,000/-. Opponent No.1 through opponent No.2 issued allotment letter to complainant. Complainant paid amount of Rs.15,60,000/- through cheques to opponent No.1 towards consideration of said flat. Opponent No.1 had issued receipts of payment on 05/01/2010 and issued allotment letter. As per clause No.5 of the allotment letter, balance amount of Rs.3,90,000/- should be paid at the time of possession of the flat. Opponent No.1 agreed to execute agreement for sale on making payment of earnest money amounting to Rs.15,60,000/-.
3. It is alleged that the opponents were under statutory obligation to execute and register the agreement of sale when opponents had received 80% of total agreed consideration. Opponents failed to hand over possession of booked flat within 18 months from the date of booking. In the month of June 2010 complainant made a 2 CC-17-1161 telephone call to opponent No.2 for knowing the progress. It was informed that TDR work is in progress. Again in October 2010, complainant contacted opponent No.2 and also to Architect Mr.Bhikubhai to know the progress. In spite of several meetings opponent No.2 ignored to execute agreement of sale and to hand over possession of flat. On 06/01/2014 it was informed to complainant that due to some technical defects, agreement for sale shall take further time. Meanwhile, the complainant came to know that opponent No.2 has allotted some flats to members of opponent No.3 and registration process was completed. According to complainant he had booked a flat in January 2010. Opponent No.1 promised to hand over possession of flat within 18 months from the date of booking. Complainant was supposed to receive possession of the flat by July 2011. Opponent No.1 did not hand over possession of booked flat to the complainant and failed to perform statutory and contractual obligations. Looking to the irresponsible and callous attitude of opponent No.2, the complainant constrained to take legal recourse. Complainant therefore filed consumer complaint against opponents by alleging deficiency in service.
4. Opponent Nos.1 & 2 have resisted the consumer complaint by filing written version and denied all adverse allegations. It is specifically denied that the opponent Nos.1&2 are guilty of deficiency in service. It is submitted that consumer complaint is hopelessly barred by law of limitation. It is not filed within a period of two years from the date of time period performance of alleged terms of allotment. Commencement Certificate for the plinth level was granted by MCGM on 31/03/2011 and plinth work was completed on or before 01/08/2011. The cause of action for the complainant arose within two years from plinth completion period, after 75 days from date of completion of plinth work. Complaint should have been filed within two years from the said plinth completion. Complainant should have 3 CC-17-1161 filed consumer complaint within two years from the date of allotment letter and, as such, consumer complaint is barred by limitation.
5. It is further submitted that complainant have no right to file present complaint when the rights of complainant are already lapsed due to their own acts for not following the terms of allotment letter dated 05/01/2010. The complainant is having his own residential accommodation and just for the purpose of investment he has invested the amount with the opponent Nos.1&2 through reference of common friend Mr.Bhikubhai Kawaiya. He is not interested in residential accommodation. Therefore, there was no question to execute agreement in favour of complainant, or any relief in favour of complainant. Hence, the opponents claimed for dismissal of complaint.
7. Opponent No.3 did not file written version. Opponent No.3 did not participate in the proceeding.
8. On these pleadings of the parties, following points arise for our determination and we record our findings thereon for the reasons as given below :-
Sr.No. Points Finding
1. Whether consumer complaint is barred No
by limitation?
Whether complainant are consumers
2. within meaning of Section 2(1)(d) of the Yes
Consumer Protection Act, 1986?
3. Whether consumer complaint is Yes
maintainable?
4. Whether complainant have proved that Yes
opponents are deficient in service?
5. Whether complainant are entitled for Yes, as per final
reliefs? If yes, to what extent? order.
6. What order? Complaint is partly
allowed.
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CC-17-1161
REASONS :-
10. To substantiate claim of reliefs, complainant have led evidence by filing affidavit. They have relied on several documents, such as, allotment letter dated 05/01/2010, payment receipts dated 05/01/2010, floor plan, list of promised amenities and letter dated 05/01/2010, copy of payment receipt, copy of bank pass book showing payment entry, copy of General Power of Attorney. Besides that affidavit of complainant and power of attorney holder is also filed. Documents are filed along with list at Annexure-C-1 to 20. Complainant has also filed brief notes of arguments.
11. Opponent Nos.1&2 have filed written version as per the order passed by Hon'ble Apex Court, but failed to lead evidence in support of the pleadings in spite of several chances.
12. Heard Learned Advocate Ms.Supriya Patil i/b. Mr.Uday B. Wavikar, Advocate for complainant and also relied upon earlier judgment of this Commission, in respect of same project. None present for opponents.
13. It is admitted fact that opponent Nos.1&2 are the promoters and developers. They are known as 'Vastu-Shilp Developers' have undertook to construct building known as 'Udyam Kunj' at Udyam Kunj Co-op. Housing Society Ltd., Rani Sati Marg, Opp. Navjivan School, Malad (East), Mumbai-400 097. The complainant has approached to opponent Nos.1&2. He has booked flat No.402 on 4th floor 'A' wing in building known as 'Udyam Kunj' for total consideration of Rs.19,50,000/-. Opponent No.2-Mr.M.B. Mhatre is the sole proprietor of opponent No.1. He issued allotment letter in favour of complainant on 05/01/2010 which is at Annexure-C-1 and allotted flat No.A-402 on 4th floor, admeasuring 520 sq.ft. carpet area to the complainant for total consideration of Rs.19,50,000/-. On the very same day i.e.05/01/2010 complainant has paid an amount of Rs.15,60,000/- to opponent No.1.
5CC-17-1161 Payment of Rs.15,60,000/- is admitted in the allotment letter. Till today, agreement of sale is not executed in favour of complainant by present opponent no.2.
14. By keeping in mind pleadings of the parties, admitted facts and evidence on record, let us proceed to appreciate the evidence on record to decide points for determination.
15. As to Point Nos.1 (Limitation) :- The Opponent Nos.1 & 2 in their written version raised the objection that consumer complaint is barred by limitation. It is not filed within two years from the date of cause of action. It is not filed within two years from the date of allotment letter. It is not filed within two years from the completion of plinth work. Plinth work was completed on 01/08/2011. Hence, consumer complaint is not tenable as barred by limitation.
16. We do not find any substance in the defence on behalf of opponent Nos.1&2. By filing consumer complaint, complainant is claiming possession of flat No.402 on 4th floor, admeasuring 520 sq.ft. carpet area, 'A' wing of Udaym Kunj CHS Ltd. Off. Rani Sati Marg, Opp. Navjivan School, Navjivan School Road, Malad (East), Mumbai - 400 097. Claim of possession has provided continuous cause of action. Claim of complainant is based on continuous cause of action. Till today in spite of receiving substantial amount of consideration and issuance of allotment letter and assurance therein and promise, opponents failed to hand over possession of flat to the complainant. Therefore, consumer complaint cannot be said to be barred by limitation. It is filed well within limitation. As a result, we answer Point No.1 for determination in negative.
17. As to Point No.2 (Consumer) :- Admittedly, complainant has booked flat No.402 on 4th floor, admeasuring 520 sq.ft. carpet area, 'A' wing of Udaym Kunj CHS Ltd. Off. Rani Sati Marg, Opp. Navjivan School, Navjivan School Road, Malad (East), Mumbai - 400 097 for total consideration of Rs.19,50,000/- Said 6 CC-17-1161 building is from the project of opponent No.1. Opponent No.1 issued allotment letter to the complainant. Opponent Nos.1&2 have received amount of Rs.15,60,000/- from the complainant. The complainant agreed to purchase flat from opponent Nos.1&2. Opponent Nos.1&2 agreed to sell flat No.402 to the complainant for consideration. Relationship between the complainant and opponents is of 'consumer' and 'service provider'. In view of allotment letter and admission on the part of opponents, complainant are consumers of the opponents in view of Section 2(1)(d) of the Consumer Protection Act, 1986. As a result, we answer Point No.2 for determination in affirmative.
18. As to Point No.3 (Maintainability) :- It is already held that the complainant are the consumers of opponents. They did not get possession of booked flat after payment of huge amount to the opponents. Therefore, they are constrained to file consumer complaint. It is vehemently urged by opponent No.2 that the complaint is not tenable. We have already held that the consumer complaint is not barred by limitation. Relationship between the complainant and the opponents is that of 'consumer' and 'service provider'. Hence, the complaint is very well maintainable.
19. Along with allotment letter, Plan of 'A' wing was given to the complainant, which is at page C-6. In the said Plan there was flat bearing No.402 in 'A' wing. Said flat was allotted by the opponents to the complainant. It is for the opponents to prove that allotment was for the purpose of investment and not for purchase of flat. There is nothing is on record to show that the plinth work of flat No.402 was completed by the opponents and information of completion of plinth work was given to the complainant in writing in view of allotment letter.
20. Opponents are raising objection without any evidence. It is for the opponents to establish that the complainant is investor. For want of cogent evidence this plea is not at all tenable. No evidence is adduced to substantiate that the complainant is involved in business of purchase and sale of immovable properties. Opponents 7 CC-17-1161 failed to prove that the complainant is investor or that his booking or allotment letter is cancelled. The complainant is claiming possession of booked flat and, therefore, his consumer complaint is maintainable. As a result, we answer this Point No.3 for determination in affirmative.
21. As to Point No.4 (Deficiency) :- It is evident that opponent No.1 agreed to allot flat No.402 on 4th floor, admeasuring 520 sq.ft. carpet area, 'A' wing of Udaym Kunj CHS Ltd. Off. Rani Sati Marg, Opp. Navjivan School, Navjivan School Road, Malad (East), Mumbai - 400097 to the complainant for consideration. Allotment letter was issued on 05/01/2010. Complainant paid amount of Rs.15,60,000/- to opponent No.1 through opponent No.2 by cheques on 05/01/2010. In spite of receipt of huge amount, opponent No.2 failed to execute agreement of sale. As per Section 4 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 [In short 'MOFA'], opponent No.2 was supposed to execute agreement of sale and to register it. Duty is casted upon the builders/developers to execute agreement of sale. Section 4 of the MOFA reads as under :-
"4. Promoter before accepting advance payment or deposit to enter into agreement and agreement to be registered.
Notwithstanding anything contained in any other law, a promoter who intends to construct or constructs a block or building of flats all or some of which are to be taken or are taken on ownership basis, shall, before, he accepts any sum of money as advance payment or deposit, which shall not be more than 20 per cent of the sale price enter into a written agreement for sale with each of such persons who are to take or have taken such flats and the agreement shall be registered under the Registration Act, 1908 and such agreement shall be in the prescribed form."8
CC-17-1161
25. On going through allotment letter and provision of Section 4 of MOFA, it reveals that mentioning of said illegal condition will not take away the effect of statutory provision. Non-execution of agreement for sale after accepting huge amount towards consideration and non-registration of the same amounts to deficiency in service.
26. There is inordinate delay in handing over possession of the flat. Flat bearing No.402 was booked by the complainant on 05/01/2010 for total consideration of Rs.19,50,000/-. Till today complainant did not get possession of their dream house. Inordinate delay in handing over possession of flat amounts to deficiency in service.
27. The opponent nos.1 & 2 came with the defence that the complainant has made investment in the amount and not for purchase of flat. Moreover, opponent no.3 society has made allotment of flat from New A & B wings. The copy of which is produced at Annexure B to their written version. The flat no.402 in 'A' wing admeasuring 520 sq.ft. is not in existence. Hence, there is no necessity to grant relief regarding said flat.
28. Complainant has already filed old plan of the project on record. Along with allotment letter, plan was given to the complainant and in the said plan, flat No.A- 402 is shown. Opponent No.2 did not give any idea about changed plan to the complainant. He never demanded due amount from the complainant in writing. He never communicated cancellation of booking of the flat to the complainant in writing. Opponent Nos.1&2 failed to prove that booking is legally cancelled by the opponents.
29. Opponents cannot change the plan of the project by keeping purchasers in dark. It is not made clear as to why plan of the project was changed and on whose instances it was changed. Opponent Nos.1&2 were duty bound to disclose the 9 CC-17-1161 material alteration, changes to the complainant. Consent of complainant was never sought for change in the plan. On change in plan, no alternate flat was offered or allotted to the complainant. The act of opponent Nos.1&2 is in contravention to Section7 of the MOFA.
30. Opponents failed to hand over possession of flat to the complainant within reasonable period and on the other hand raised plea that complainant made investment which is not substantiated. The complainant is waiting for possession of his dream house since 2010 till today. Oral cancellation of booked flat is not at all permissible. Opponents ought to have informed changed plan to the complainant. Opponents failed to execute agreement of sale in favour of the complainant and to register the same. Opponents utilised amount paid by the complainant, but failed to handover possession of booked flat. False plea of cancellation of allotment letter is reaised. In view of this discussion, we find no hesitation to hold that the opponent Nos.1&2 are guilty of deficiency in services. As a result, we answer Point No.4 for determination in affirmative.
31. As to Point No.5 (Entitlement) :- In view of answer of Point No.4 in affirmative, complainant is entitled to get possession of booked flat on payment of balance consideration. If opponents are not in a position to hand over possession of booked flat then the complainant can claim alternate flat in the same locality of same size from opponent Nos.1&2 on payment of balance amount of consideration.
32. Complainant did not get possession of the booked flat. Opponents/builders cannot made to wait the flat purchasers for inordinate delay. The complainant has spent his hard-earned amount in getting possession of booked flat for residence. Certainly, he has suffered mental pain and agony. Opponent Nos.1&2 are liable to pay interest on the amount of Rs.15,60,000/- from the date of booking of the flat @ 9% p.a. till the date of possession of the flat. To establish right of possession of the 10 CC-17-1161 flat, the complainant are required to file consumer complaint against the opponents and to take legal recourse. Notice was sent to the opponents through Counsel. The complainant has engaged an Advocate to put forth his grievances. He is trying to get justice since 2017. He is entitled to get amount of Rs.1 Lakh from opponent Nos.1&2 towards costs of litigation. As a result, consumer complaint deserves to be allowed. Hence, we proceed to pass the following order :-
-: ORDER :-
1. Consumer complaint is hereby allowed.
2. It is hereby declared that opponent Nos.1&2 are guilty of deficiency in service and unfair trade practice.
3. Opponent Nos.1&2 are jointly and severally directed to execute agreement of sale and register the same in favour of complainant in respect of flat No.402 on 4th floor, admeasuring 520 sq.ft. carpet area, 'A' wing of Udaym Kunj CHS Ltd. Off. Rani Sati Marg, Opp. Navjivan School, Navjivan School Road, Malad (East), Mumbai - 400 097 within a period of 45 days from the date of this order.
4. Opponent Nos.1&2 are jointly and severally directed to obtain Occupation Certificate and Building Completion Certificate in respect of flat No.402 on 4th floor, admeasuring 520 sq.ft. carpet area, 'A' wing of Udaym Kunj CHS Ltd. Off. Rani Sati Marg, Opp. Navjivan School, Navjivan School Road, Malad (East), Mumbai - 400 097.
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5. Complainant to deposit balance amount of consideration before the State Commission under intimation to opponent Nos.1&2.
6. Opponent Nos.1&2 are jointly and severally directed to hand over vacant and peaceful possession of flat No.402 on 4th floor, admeasuring 520 sq.ft. carpet area, 'A' wing of Udaym Kunj CHS Ltd. Off. Rani Sati Marg, Opp. Navjivan School, Navjivan School Road, Malad (East), Mumbai - 400 097 to the complainant along with one car parking space within a period of two months from the date of intimation of deposit of balance amount of consideration in the State Commission.
In the alternative at the option of complainant,
7. Opponent Nos.1&2 are jointly and severally directed to hand over vacant and peaceful possession of any other flat of the same size with similar configuration in the same building or in other building in the same vicinity to the complainant along with one car parking space, Building Completion Certificate and Occupancy Certificate within a period of two months from the date of intimation of deposit of balance amount of consideration in the State Commission and execute registered agreement for sale in respect of said flat in favour of the complainant.
8. Opponents Nos.1&2 jointly and severally do pay interest @ 9% p.a. on the amount of Rs.15,60,000/- (Rupees Fifteen Lakhs Sixty Thousand only) from 12 CC-17-1161 the date of payment i.e. 05/01/2010 till date of handing over possession of the flat to the complainant as per directions.
9. Opponents Nos.1&2 jointly and severally do pay amount of Rs.1,00,000/-
(Rupees One Lakh only) to the complainant towards costs of litigation.
10. The above order be complied within time schedule, otherwise amount will carry interest @ 18% p.a. from the date of this order till realisation of amount by the complainant.
11. Copies of the order be furnished to the parties.
[Justice S.P.Tavade] President [Smt.S.T.Barne] Judicial Member Ms. 13