State Consumer Disputes Redressal Commission
Haresh A. Kuvadia vs M/S Vaidehi Akash Housing Pvt Ltd And ... on 15 June, 2012
Daily Order
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/11/11
HARESH A. KUVADIA
904 GURUMAULI APARTMENTS
BUILDING NO 22 D. N. NAGAR
ANDHERI WEST
MUMBAI - 400 053.
...........Complainant(s)
Versus
1. M/S VAIDEHI AKASH HOUSING PVT LTD
101-102 PRATIK APARTMENT
OPP. DHAKE COLONY
J. P.
ROAD
ANDHERI WEST
MUMBAI - 400 053.
2. SHRI S.G.PHONDEKAR,
(MANAGING DIRECROR),
M/S.VAIDEHI AKASH HOUSING PVT.LTD.,
101-102 PRATIK APARTMENT
OPP. DHAKE COLONY
J. P.
ROAD
ANDHERI WEST
MUMBAI - 400 053.
3. MRS.REKHA SHINDE
(DIRECTOR)
M/S. VAIDEHI AKASH HOUSING PVT.LTD.,
101-102 PRATIK APARTMENT
OPP. DHAKE COLONY
J. P.
ROAD
ANDHERI WEST
MUMBAI - 400 053.
4. MRS. SUNITA PHONDEKAR
(DIRECTOR)
M/S.VAIDEHI AKASH HOUSING PVT.LTD.
101-102 PRATIK APARTMENT
OPP. DHAKE COLONY
J. P.
ROAD
ANDHERI WEST
MUMBAI - 400 053.
5. MRS. MADHAVI KERKAR,
(DIRECTOR)
M/S. VAIDEHI AKASH HOUSING PVT.LTD.
101-102 PRATIK APARTMENT
OPP. DHAKE COLONY
J. P.
ROAD
ANDHERI WEST
MUMBAI - 400 053.
6. MRS. CHANDRA ASOO NIHALANI
8, PREMODYAN CHS LTD.,
CORNER OF 9TH & 12TH ROAD,
KHAR(W), MUMBAI - 400 052
............Opp.Party(s)
BEFORE:
Hon'ble Mr.Justice S.B.Mhase PRESIDENT
Hon'ble Mr. S.R. Khanzode Judicial Member
PRESENT:
Adv. Uday Wavikar for the Complainant
None for the Opponents Nos.1 to 5.
Adv. Anita Marathe for the Opponent No.6
ORDER
Per - Hon'ble Mr. S. R. Khanzode,
Judicial Member This consumer complaint pertains to alleged deficiency in service on the part the Builder/Developer by not handing over the possession of the flat agreed to be purchased by the Complainant.
[2] It is the case of the Complainant, Mr. Haresh A. Kuvadia (hereinafter referred to as 'the Complainant' for the sake of brevity) that he agreed to purchase a flat bearing No.1102 situated on the 11th floor, Azad Nagar, Blue Star C. H. S. Ltd., Building No.6, Azad Nagar, Veera Desai Road, Andheri (West), Mumbai - 400053 for an agreed consideration of `21,15,000/- from the Opponent No.1, M/s. Vaidehi Akash Housing Pvt. Ltd. (hereinafter referred to as 'the Builder' for the sake of brevity). The transaction is witnessed by an allotment letter dated 22/3/2005 issued by the Builder in favour of the Complainant. The Opponents Nos.2 to 5 are the Directors of the Opponent No.1 Company. The Complainant in all `22,00,000/- towards the consideration and thus, paid the entire consideration as agreed. However, the Builder did not execute the agreement and registered the same as per Maharashtra Ownership Flats Act, 1963 (hereinafter referred to as 'MOFA' for the sake of brevity). After quite persuasion, in the month of September-2006 the Builder agreed to execute the agreement and accordingly, the Complainant made arrangements to pay the stamp-duty and registration charges. However, the Builder failed to execute the agreement.
At the time when the Builder asked the Complainant to be ready for registration of the agreement it was represented to the Complainant that the actual saleable area of the said flat is admeasuring 1015 sq. ft. instead of 900 sq. ft. as earlier mentioned. Since the Builder failed to hand-over the possession of the flat, as agreed, this consumer complaint is filed.
[3] It may be mentioned that the Builder himself made an interim arrangement for stay of the Complainant by taking a flat on leave and license basis belonging to the Opponent No.6, Mrs. Chandra Asoo Nihalani. That transaction is witnessed by a tripartite agreement executed between the Complainant, as the occupant, the Opponent No.6, Mrs. Chandra Asoo Nihalani, as the licensor and the Builder, as the licensee.
After few years there was a dispute about handing over possession by the occupant and the licensee and proceeding were initiated by the Opponent No.6 to get the possession of flat.
As now stated at the Bar, the possession of the flat is already handed over to the Opponent No.6, Mrs. Chandra Asoo Nihalani. No relief is pressed against the Opponent No.6 by the Complainant.
[4] Builder and its Directors viz. the Opponents Nos.1 to 5 preferred to remain absent inspite of the fact that they were duly served. In the circumstances, the complaint proceeded ex-parte against these Opponents. The Complainant filed documents on the record as well as his own affidavit dated 19/10/2011 in evidence.
[5] We heard Adv. Uday Wavikar on behalf of the Complainant and Adv. Anita Marathe on behalf of the Opponent No.6. None remained present on behalf of the Opponents Nos.1 to 5.
[6] In the instant case, the agreement which is witnessed by an allotment letter dated 22/3/2005 is duly established by the Complainant through his own affidavit and which finds corroboration from the allotment letter dated 22/3/2005 as well as the receipts issued by the Builder on receipt of part of consideration which are placed on the record. Since the Builder is yet to hand-over possession inspite of receipt of full consideration, deficiency in service on that count on the part the Builder is well established.
[7] In the instant case, the Builder inspite of promise and in breach of obligations casted upon him under the MOFA, failed to execute and get registered the agreement of sale in favour of the Complainant and, therefore, considering the ancillary relief claimed in the form of request to grant any other suitable relief, we find it proper to grant the relief giving direction to the Builder to execute the agreement in terms of allotment letter dated 22/3/2005 in conformity with the provisions of the MOFA and also to specifically acknowledge the payments received, supra, therein.
[8] For the deficiency on account of delay in handing over the possession, compensation is claimed by way of interest over the consideration paid i.e. from the first payment with effect from 21/3/2005 @ 21% p.a. Considering the fact that the parties mutually agreed for concession to be given to the Builder to hand-over possession of the flat and which is reflected from the fact that the alternate accommodation is made available to the Complainant by the Builder by taking the premises on leave and license basis from the Opponent No.6 and further considering the fact that as per leave and license agreement dated 21/1/2010 license period was of 22 months, we find that instead of granting any compensation for the delayed possession in terms of interest, as prayed, and also not awarding any separate compensation on account of alleged mental agony, trauma and inconvenience; it would be just and proper to award compensation giving a direction to the Builder to bear the expenses of execution of the conveyance/agreement and its registration, including payment of stamp-duty, inter-alia in favour of the Complainant.
[9] We also find that in the given circumstances it would be proper to award interest by way of compensation as per final order below in case the Builder fails to hand-over possession of the flat and execute the agreement within the stipulated time.
For the reasons stated above, we hold accordingly and pass the following order:-
ORDER The complaint is partly allowed.
[2] The Opponents Nos.1 to 5 are directed to hand-over to the Complainant vacant and peaceful possession of a flat bearing No.1102 situated on the 11th floor, Azad Nagar, Blue Star C. H. S. Ltd., Building No.6, Azad Nagar, Veera Desai Road, Andheri (West), Mumbai - 400053.
Similarly, at the time of handing over the possession of the flat or before that, an agreement in terms of allotment letter dated 22nd March, 2005 and in conformity with the provisions of the Maharashtra Ownership Flats Act, 1963 shall be executed in favour of the Complainant by the Opponents Nos.1 to 5 at their cost and expenses.
[3] Handing over possession of the flat and the execution and registration of the agreement for sale of the flat shall be done within a period of 45 days from the date of receipt of this order and failing which the Opponents Nos.1 to 5, jointly and severally, shall be liable to pay to the Complainant interest @ 24% p.a., over an amount of `21,15,000/- viz. consideration paid (as agreed), till the above-referred compliances are made.
[4] Opponents Nos.1 to 6 to bear their own costs and the Opponent Nos.1 to 5 shall pay costs of `25,000/- to the Complainant.
[5] Complaint as against the Opponent No.6 stands dismissed.
[6] Inform the parties accordingly.
Pronounced on 15th June, 2012 [Hon'ble Mr.Justice S.B.Mhase] PRESIDENT [Hon'ble Mr. S.R. Khanzode] Judicial Member KVS