State Consumer Disputes Redressal Commission
Mr.Hiralal Khairnar vs M/S.Dev Enterprises,Through Its ... on 9 February, 2024
1 (CC/17/376)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO.CC/17/376
Mr.Hiralal Khairnar
R/at B-3, Jeevan Sagar Society,
Plot No.26, Sector 11,
Kharghar,
Navi Mumbai 410 210. Complainant
Versus
1. M/s.Dev Enterprises
A Partnership Firm and its
Partners
2. Mr.Madan Kalambkar
3. Mrs.Kanchan Kalambkar
4. Mr.Hemchand Mistry
5. Mr.Pramod Kalambkar
6. Mr.Ishan Sharma
All having office address-
Shree Siddhivinayak APT,
Gr. Floor, Plot No.C-2/1
Sector 23, Seawood,
Dharave Nerul,
Navi Mumbai 400 706. Opponents
BEFORE :
Mr.Mukesh V. Sharma, Presiding Member
Dr. Satish A. Munde, Member
PRESENT:
For the Advocate Rahul R. Pandit
Complainant(s): a/w Premanand K. Torane
For the
Opponent(s): None present
2 (CC/17/376)
JUDGMENT
Dated 9th February, 2024 Per: Dr. Satish A. Munde, Hon'ble Member 1] The Complainant has filed this Consumer Complaint u/s 12 of the Consumer Protection Act, 1986 (we think this is a typographical mistake and we treat it u/s 17 of the Consumer Protection Act, 1986.
2] The brief facts of the Consumer Complaint is as under-
That the Opponent No. 1 is a Partnership Firm incorporated under the Indian Partnership Act, 1932 of which Opponent Nos. 2 to 6 are the Partners of the said Partnership Firm. The Complainant has booked flat bearing number 802, admeasuring built up/ carpet area 1150 sq.ft, on the 8th floor of the proposed project known as 'Dev Saphire' admeasuring 900 sq.mtrs, situated at Plot No.72, Sector 45, Kharghar, Navi Mumbai for agreed consideration of Rs.63,99,890/- including development charges, stamp duty, registration, service tax, VAT and parking. The Complainant entered into agreement in the form of letter of allotment dated 5th August, 2013 for purchasing the said residential flat. That out of the total consideration amount the Complainant has paid sum of Rs.16,21,500/- against the said flat. The Opponents failed to hand over vacant, legal and peaceful possession to the Complainant till date inspite of repeated requests made by the Complainant through various request letters. The Complainant issued notice dated 16th January, 2017 through his Advocate for the possession of the 3 (CC/17/376) said flat but it was not replied by the Opponents. Hence, the Complainant constrained to file this complaint.
3] The complaint is admitted. Notices were issued to the Opponents. The Opponent were duly served but they failed to appear before this Commission. Hence, the complaint is proceeded exparte against the Opponents. The Complainant has filed affidavit of evidence and written notes of argument.
4] Considering the complaint, affidavit of evidence and argument of the Complainant, following points arose for our determination and we have recorded our findings for the reasons given below-
Sr.No. Points Findings
1 Whether the Complainant is a In the affirmative
Consumer of the Opponents?
2 Whether the Complainant has In the affirmative
established deficiency in service
and unfair trade practice on the
part of the Opponents as
contemplated u/s 2(g) and 2(r ) of
the Consumer Protection Act,
1986?
3 Whether the Complainant is In the affirmative
entitled to the compensation?
4 What order ? As per final order
4 (CC/17/376)
:-REASONS:-
As to the point No.1-
5] The Complainant had booked the said flat with the Opponents for total consideration of Rs.63,99,890/-, out of which he has paid Rs.16,21,500/- to the Opponents by various cheques. He has produced the receipts of the same issued by the Opponents on the record (at page numbers C-13 to C-16). Further he has produced booking form on record (at page number c-4). Further, the Complainant has produced the Allotment Letter dated 5th August, 2013 (at page number C-5 to C-12). The Opponents are duly served but they failed to appear before this Commission. Hence, the complaint is proceeded ex- parte. Hence, the above referred documents are presumed that they are true and correct. Hence, it is sufficient evidence to draw the conclusion that the Complainant is a consumer of the Opponents as per section 2(1)(d) of the Consumer Protection Act, 1986. Therefore, we declare answer to the point number one in the affirmative.
As to the point No. 2 -
6] Heard the Advocate for the Complainant. Perused the documents produced by the Complainant on record i.e. Booking Form dated 14th July, 2013, Letter of Allotment 5th August, 2013, receipts issued by the Opponents towards the payment for part consideration of the said flat. Further, it is contended by the Complainant that the possession of the said flat was to be given after obtaining Occupancy Certificate from the concerned 5 (CC/17/376) Authority. The Opponents also orally agreed and promised to the Complainant that the Occupancy Certificate shall be obtained within 1 year from the date of issuing of Allotment Letter i.e. 5th August, 2013 and the possession of the said flat will be handed over to the Complainant after 1 year from obtaining the Occupancy Certificate from the concerned Authority (CIDCO) i.e. total period of 2 years but till date no possession of the said flat is handed over to the Complainant by the Opponents. The Consumer Complaint is proceeded exparte against the Opponents. The affidavit of evidence filed by the Complainant remained unopposed. Furthermore as per section 4 of the Maharashtra Ownership of Flats Act, 1963, it is the duty cast upon the Builder/Developer/Promoter to enter into the written Agreement for Sale on receipt of advance amount not more than 20% of the sale amount. In the present case, the Complainant has proved that he has paid more than 20% of the consideration amount of the said flat to the Opponents. The Complainant had also annexed receipts dated 14th July, 2013, 5th August 2013, 8th August 2013 and 14th August, 2013 in his affidavit of evidence issued by the Opponents towards the said payment. That further allotment letter dated 5th August, 2013 was issued by the Opponents. The same is annexed in evidence affidavit of the Complainant. The Opponents did not execute the Agreement to Sell for the said flat despite having paid substantial consideration and having made request from time to time by the Complainant. The Opponents failed to abide by the promises and also statutory obligations under the Maharashtra Ownership Flats Act, 1963. So it is proved that the Opponents 6 (CC/17/376) have failed to hand over possession of the said flat to the Complainant as agreed by the Opponents and thereby the Opponents have caused deficiency of service and unfair trade practice to the Complainant and therefore Point No. 2 is answered in the affirmative.
As to the Point No.- 37] Perused the record and heard arguments advanced before us. It is contended by the Complainant that the Opponents agreed to deliver the possession of the said flat within 2 years from the date of issuance of the Allotment Letter i.e. 5th August, 2013. Further, it is contended that the Complainant had completed all the bank formalities to avail the loan for payment of remaining amount of consideration but till date Opponents failed to hand over the possession of the said flat inspite of repeated requests by the Complainant to the Opponents in the written form vide letter dated 23rd April ,2015, 25th June, 2015, 10th October, 2015, 27th November, 2015, 29th March, 2016 and 16th May, 2016. Inspite of the notice issued on 16th January, 2017 to the Opponents by the Complainant. The Opponents failed to comply or reply the same. Therefore, the Complainant is entitled for the compensation for delay caused by the Opponents in handing over the possession of the said flat till date. The Complainant is deprived of his dream house and suffered mental and physical harassment and financial loss at the hands of Opponents for years together and was compelled to run from pillar to post. The Opponents have used hard earned money of the Complainant, in the form of consideration, for years 7 (CC/17/376) together. Contentions raised by the Complainant, proved by the documentary evidence in the form of receipts and Letter of Allotment dated 5thAugust 2013, remained unchallenged. Therefore, the Complainant is entitled for compensation for delay caused by the Opponents for handing over possession of the flat to the Complainant. Hence, we answer point number 3 in the affirmative.
As to the point No.4- 8] After considering the reasons mentioned herein, we pass the following order-
ORDER [1] The complaint is partly allowed.
[2] The Complainant is directed to pay the balance amount of consideration in the sum of Rs.47,78,390/- to the Opponents and also directed to pay stamp-duty, registration charges and the taxes levied upon him to the Authorities, if not paid earlier. After payment, within one month, the Opponents are directed to execute Sale Deed in favour of the Complainant and to handover vacant, legal and peaceful possession of the flat bearing No.802, admeasuring built up/ carpet area 1150 sq.ft, situated on the 8th Floor of the proposed project known as 'Dev Saphire' admeasuring 8 (CC/17/376) 900 sq.mtrs ,situated at Plot No.72, Sector 45, Kharghar, Navi Mumbai to the Complainant.
[3] In the alternative, at the option of the Complainant-
The Opponent Nos.1 to 6 are jointly and severally directed to refund entire amount of consideration in the sum of Rs.16,21,500/- (Rupees Sixteen Lakhs Twenty One Thousand and Five Hundred only) to the Complainant alongwith interest @ 12% p.a. from the date of respective payment till its entire realization.
[4] The Opponent Nos.1 to 6 are jointly and severally directed to pay an amount of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) to the Complainant towards compensation for mental, physical harassment and financial loss.
[5] The Opponent Nos.1 to 6 are jointly and severally directed to pay amount of Rs.50,000/- (Rupees Fifty Thousand only) towards costs of litigation to the Complainant.
[6] The Opponent Nos.1 to 6 are jointly and severally directed to comply with the aforesaid order within a period of 45 days from the date of receipt of copy of this Order.
9 (CC/17/376) [7] In case, the Opponents fail to comply with the Operative Order Sr.No.(4) and (5) within a period of 45 days, the Opponents are liable to pay interest @ 9% p.a. [8] Copy of this order be supplied to both the parties free of costs.
[Mukesh V. Sharma] Presiding Member [Dr. Satish A. Munde] Member rsc