National Consumer Disputes Redressal
M/S. R.K. Constro Projects Pvt. Ltd. vs Sonal Devendra Jain & Anr. on 26 July, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3497 OF 2016 (Against the Order dated 24/10/2016 in Appeal No. 459/2015 of the State Commission Maharastra) 1. M/S. R.K. CONSTRO PROJECTS PVT. LTD. THROUGH ITS MANAGING DIRECTOR SAMEER MEHATA, THROUGH HIS GPA HOLDER AND AUTHORIZED SIGNATORY, MR. BIPIN UTTAMRAO HINGMIRE OFFICE ADDRESS R.K.B. BHAVAN, 34, BHAGYA NAGAR, ADALAT ROAD, AURANGABAD MAHARASHTRA ...........Petitioner(s) Versus 1. SONAL DEVENDRA JAIN & ANR. R/O. A-5, VARDHAMAN RESIDENCY KHIVANSARA PARK, ULKANAGARI, AURANGABAD-431005 MAHARAHSTRA 2. MOHD. WASEEM IQBAL MAMDANI, R/O. FLAT NO. 5, C-3, TOWN CENTRE, SILVER ESTATE N-3, CIDCO AURANGABAD-431001 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER For the Petitioner : Mr. Balasaheb M. Waghmare, Advocate For the Respondent :
Dated : 26 Jul 2017 ORDER DR. S. M. KANTIKAR, MEMBER
1. This revision petition is the challenge to the order dated 24.10.2016 passed in appeal No. 459 of 2015 by Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad (in short, 'the State Commission'). By the said order, the State Commission has directed the complainant to deposit the amount of Rs.10,93,000/- and the petitioner/OP 1 was also directed to execute the deed in favour of the complainant.
2. The brief facts are that the complainant booked flat No. 2 in building No. 8 of the Scheme, namely, '4th Dimension' at Hirapur, Jalna Road, Aurangabad for total consideration of Rs. 13,75,000/- through OP 2-Mohd. Wasim Iqbal Mamdani. The said flat was initially booked by OP 2 by paying Rs.2,82,081/- towards the booking amount and part of consideration. Due to financial hardships, OP 2 transferred the booking of said flat in favour of the complainant alonwith booking amount of Rs.2,82,081/-. The transfer agreement of booking of said flat was also executed between the complainant and OP 2. Also, the M/s R. K. Constro Projects Ltd (OP 1/petitioner herein) issued proper receipt for the said amount of Rs.2,82,081/- in favour of the complainant. OP 1 instructed the complainant for payment of balance amount of Rs. 11 lakh in installments but the complainant by her letter dated 20.10.2012 intimated OP 1 that the payment will be made as per stage of construction, as agreed with the earlier purchaser. There was no progress in the work and the construction of building 8 was actually started in the month of May, 2013 and the first slab of said building was completed in July, 2013. Despite the fact that the amount of Rs.2,82,081/- was paid to the builder, the builder was not ready to execute the agreement to sell. It is alleged by the complainant that as per the provisions of Maharashtra Flat Owners Act, 1970 (MOFA), it is obligatory on the part of the builder to execute the agreement to sell after payment of 20% of the total consideration. The builder was trying to alienate the said flat to third party. Therefore, alleging deficiency in service against the OP/builder, the complainant filed a consumer complaint before the District Consumer Disputes Redressal Forum, Aurangabad (in short, 'the District Forum') seeking direction to OP/builder to execute agreement to sell and deliver possession of the said flat. She also claimed refund of Rs.2,82,081/- alongwith interest @ 18% per annum. She also made various prayers in her complaint.
3. The OP resisted the complaint before the District Forum. OP submitted that the complainant had purchased the flat for making profit; the complaint was filed after two years, hence, barred by limitation and not maintainable; the complainant failed to make the balance payment as per transfer of agreement dated 7.10.2011. Even after the letter of intimation on 8.10.2012 to the complainant, she did not pay a single installment, hence, the booking was cancelled on 1.9.2013 after giving due notice to her. Hence, there was no deficiency.
4. After considering the evidence on record and hearing the parties, the District Forum allowed the complaint and directed the OP to execute the agreement to sell. The complainant was also directed to make payment of balance amount of Rs.10,93,000/- to OP 1 within 30 days and OP 1 was directed to execute the sale deed in favour of the complainant. The District Forum also directed the OP to pay Rs.50,000/- as a compensation.
5. Aggrieved by the order of District Forum, the OP filed an appeal before the State Commission. The State Commission dismissed the appeal and upheld the order of District Forum. Being aggrieved by the order of State Commission, the instant revision petition arose.
6. We have heard the learned counsel for the petitioner/OP 1 at admission stage. Counsel submitted that the complainant failed to make the payment as scheduled. He did not make payment of single instalment, therefore, the OP has rightly cancelled the booking through its letter dated 1.9.2013. Counsel also submitted that the agreement executed between the complainant and OP 2 was without the consent of OP 1/builder. The complaint is not maintainable because the flat was booked for commercial purpose.
7. We have perused the impugned order of State Commission and the District Forum. It is an admitted fact that the booking amount of Rs.2,82,081/- for the flat was transferred in favour of the complainant against the total consideration of Rs.13,75,000/- as per the payment plan executed at the time of booking. The District Forum observed that 20% amount was paid at the time of booking and 25% on completion of first slab and thereafter payment was to be made as per the progress of the work. Thus, it was a construction linked plan but there was inordinate delay in construction work by OP 1. It is pertinent to note that as per the letter of OP 1, he is making every effort to make ready the flat for possession within a period of 18 months from 1st October, 2012 but the actual construction work of building No. 8 was started in April, 2013 and immediately thereafter, he has cancelled the booking of the complainant on 1.9.2013. As the first slab of building was completed in the month of July, 2013, there was no question for the complainant to pay the balance amount in the month of April, 2013. Also, as per Section 4 of MOFA, it is binding on the developer to execute the agreement to sell after receipt of 20% of the construction amount but OP 1 failed to execute the said agreement. Thus, it was a deficiency in service.
8. In view of the foregoing discussion and the evidence on record, we do not find any material irregularity or jurisdictional error in the well-reasoned order passed by both the fora. Hence, the revision petition is dismissed.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER