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State Consumer Disputes Redressal Commission

Milind Borole vs M/S Shivam Developers Pvt Ltd on 21 March, 2018

CC/12/213




    BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
             COMMISSION, MAHARASHTRA, MUMBAI

                             Complaint Case No. CC/12/213

Milind Borole
A/12, Abhinandan Apts.,
Near Save Nagar, C.S. Road,
Dahisar (East), Mumbai-400 068.                      ...........Complainant(s)

                         Versus
1. M/s.Shivam Parivar Developers Pvt. Ltd.
Through its Directors
1, Washington Plaza, Off S.V. Road,
Goregaon (West), Mumbai-400 062.
2. Mr.Gangjibhai Patel
Contractor cum Partner of
M/s.Shivam Parivar Developers Pvt. Ltd.
C/o. 9, Prajapati & Associates
Panchavati Building, Near Kandivali Fire Brigade,
Opp. Tata Motor's Showroom,
S.V. Road, Kandivali (West),
Mumbai - 400 067.
3. Mr.Tushar M. Shah
Agent
C/403, Prathmesh Leela Apts.,
Behind Sai Lee Hospital,
New MHB Colony,
New Link Road, Borivali (West),
Mumbai - 400 091.                                    ............Opponent (s)

BEFORE:
               P. B. Joshi PRESIDING JUDICIAL MEMBER
               A.K. Zade MEMBER

For the              Mr.Fredrick, Advocate for complainant.
Complainant:
For the              None present for opponents.
Opponent:
                                        ORDER

Per Shri P.B. Joshi, Hon'ble Presiding Judicial Member Complainant booked a flat with opponents for total consideration of Rs.32,35,500/-. Opponent No.1 is a developer i.e. M/s.Shivam Parivar Developers Pvt. Ltd. Opponent No.2 is a Contractor cum Partner of Page 1 of 9 CC/12/213 opponent No.1 and opponent No.3 is Agent of opponent Nos.1&2. Said flat was booked in a project named as 'Jagruti Co-operative Housing Society Limited' situated at CTS No.365, Siddharth Nagar, MIG Colony, Goregaon (West), Mumbai-400 104. The flat was booked on 20/09/2009 and on the same date, complainant paid Rs.1,51,000/- to opponent No.2 by way of cheque in favour of Nishaan Enterprises as token amount of said flat. On 28/09/2009 two cheques of Rs.3,63,804/- and Rs.6,47,100/- were issued by the complainant and opponent No.1 issued receipts. Allotment letter was also issued by opponent No.1 in favour of complainant on 15/10/2009 in respect of flat No.404/B, 4th floor, admeasuring 446 sq.ft. carpet area in the building known as 'Jagruti Co-operative Housing Society Limited' situated at CTS No.365, Siddharth Nagar, MIG Colony, Goregaon (West), Mumbai-400 104 (hereinafter referred as 'said flat'). The complainant has contended that opponent No.3, Agent of opponent Nos.1&2 demanded sum of Rs.1,80,000/- in cash for the purpose of stamp duty and registration of said flat. Complainant paid said amount of Rs.1,80,000/- to opponent No.3 in present of witnesses on 18/03/2010. As per complainant even after payment of Total amount of Rs.13,41,904/- opponents have not executed agreement in favour of complainant in respect of said flat and have not handed over possession of said flat and hence, legal notice was issued. There was correspondence between the parties and lastly, consumer complaint is filed by the complainant with prayer that opponents be held guilty for deficiency in services. Opponents be directed to register agreement for sale for the said flat and hand over possession of said flat. Complainant alternatively prayed that opponents be directed to give a flat equivalent to said flat in the vicinity in any other project. Further alternatively complainant prayed that opponents be directed to pay to the complainant equivalent to the value of flat based on current market price as per Ready Reckoner amounting to Rs.48,25,753/-

CC/12/213 along with interest @ 18% p.a. from the date of allotment i.e. 15/10/2009 till realisation. Alternatively, complainant prayed that opponents be directed jointly and severally to refund amount of Rs.13,41,904/- to the complainant together with interest @ 18% p.a. from the date of respective payment till realisation. Complainant prayed that opponents be directed to pay Rs.10 Lakhs towards compensation for mental agony, trauma and harassment and Rs.50,000/- towards cost of complaint.

2. Opponent No.1 resisted the complaint by filing written version which is at page-75to88 of complaint compilation. Opponent No.1 has admitted booking of said flat by the complainant and issuance of allotment letter, however, contended that booking was cancelled as opponent No.2 has informed opponent No.1 to cancel the booking as complainant has not paid further installments. Hence, allotment was cancelled. Opponent No.1 has also contended that the complaint is barred by limitation and this Commission has no jurisdiction to entertain the complaint. Opponent No.1 has contended that as booking is cancelled, complaint be dismissed.

3. Other opponents have not filed their written version.

4. Considering the rival contentions of the parties, considering the record and keeping in view the scope of the complaint, following points arise for our determination and our findings thereon are noted for the reasons as below :-

  Sr.No.                         Points                             Finding

     1.        Whether       this     Commission       has           Yes
               jurisdiction to entertain the complaint?
     2.        Whether complaint filed by the                        Yes
               complainant is within limitation?
     3.        Whether there is deficiency in service on             Yes
               the part of opponents?
     4.        Whether the complainant is entitled for               Yes
                                                                              Page 3 of 9
 CC/12/213




               possession of said flat?
     5.        Alternatively, whether the complainant is      Yes, as per final
               entitled for alternative flat?                      order.
               Alternatively, whether the complainant is
     6.        entitled for Rs.48,25,753/- as current
                                                                    No
               market price of the flat & interest thereon
               @ 18% p.a. as claimed?
               Alternatively, whether the complainant is
     7.        entitled for refund of Rs.13,41,904/-                Yes
               together with interest as claimed?
               Whether the complainant is entitled for
     8.                                                       Yes, as per final
               Rs.10 Lakhs as compensation for mental
                                                                   order.
               agony and harassment?
     9.                                                      Complaint is partly
               What order?
                                                                allowed.

REASONS :-

5. Point No.1 (Jurisdiction) :- Though opponent No.1 raised plea of jurisdiction by contending that this Commission has no jurisdiction to entertain the complaint, we find that as per complaint, flat was booked for Rs.32,35,500/- and for possession of said flat complaint is filed and hence, complaint is well within pecuniary jurisdiction of this Commission.

6. It is mentioned in the complaint and not disputed that said flat is situated in the area of Goregaon, Mumbai and hence, well within territorial jurisdiction of this Commission. Thus, we find that this Commission has pecuniary as well as territorial jurisdiction to entertain the complaint. Hence, we answer Point No.1 in affirmative.

7. Point No.2 (Limitation) :- Opponent No.1 has raised plea of limitation. However, it is material to note that complaint is filed for possession of flat and hence, there is continuous cause of action and hence, it cannot be said that complaint is barred by limitation. Hence, we answer Point No.2 accordingly.

CC/12/213

8. Point No.3 (Deficiency) :- From the pleadings of the parties it is clear that complainant booked said flat with opponents for consideration of Rs.32,35,500/-. Allotment letter was issued by opponent No.1 to complainant on 15/10/2009 in respect of flat bearing No.404/B, admeasuring 446 sq.ft. carpet area on 4th floor in the building known as 'Jagruti Co-op. Housing Society Ltd.', situated at Siddharth Nagar, MIG Colony, Goregaon (West), Mumbai-400 104. Said letter is at page-35 of complaint compilation. Complainant has contended about payment of different amounts. One receipt of Rs.6,47,100/- is at page-34 of complaint compilation. Xerox copies of two cheques are filed on record. Opponent Nos.2&3 have not filed their written version and have not resisted the complaint of the complainant. Opponent No.1 has filed written version as referred above and admitted about booking and contended that booking was cancelled as opponent No.2 informed opponent No.1 about cancellation as complainant failed to make further payment as per schedule. However, opponent No.1 has not specifically denied about payment made by the complainant as mentioned in the complaint and has not specifically mentioned how much amount was paid by the complainant. Nobody remained present on behalf of opponents at the time of final arguments of the matter. Considering the submissions made before us, considering the material on record, we find that contention of opponent No.1 that booking was cancelled by opponent No.1 on the request of opponent No.2 for non-payment by complainant as per schedule cannot be accepted as there is no material on record such as any demand notice was given by the opponents to complainant mentioning stage of construction and installment due. It is contention of the complainant that loan was to be obtained from the Bank for further payment and for that complainant was asking necessary documents from the opponents, but they have not supplied it. Opponent No.1 has tried to show that booking is Page 5 of 9 CC/12/213 cancelled without showing any material on record that there was any demand notice along with stage of construction and that was not complied by the complainant. Thus, such type of cancellation without any role of complainant cannot be accepted.

9. As far as payment is concerned, it is contended that complainant has specifically mentioned in the complaint about total payment of Rs.13,41,904/-. Out of that Rs.1,80,000/- was paid to opponent No.3 for stamp duty and registration charges as asked by opponent No.3 being an Agent of opponent Nos.1&2. It was contended by complainant that opponent No.3 being an Agent of opponent Nos.1&2 showed the flat to complainant and introduced the complainant with opponent Nos.1&2. This contention was not denied by opponent No.3 as opponent No.3 has not filed any written version. Thus, we find that contention of complainant about payment of Rs.13,41,904/- is to be accepted. Thus, it is very clear that even after payment of Rs.13,41,904/- out of total consideration of Rs.32,35,500/- opponents have not executed agreement in respect of said flat in favour of complainant and not handed over possession of the flat by accepting remaining consideration. Thus, non- execution of agreement is itself a deficiency in service on the part of opponents. Not making necessary documents available to the complainant for obtaining loan is also a deficiency on the part of opponents and not handing over possession of the flat to the complainant which was booked by the complainant with opponents is also a deficiency on the part of opponents. Hence, we answer Point No.3 in affirmative.

10. Point No.4 (Possession) :- In view of answer of Point No.3 in affirmative, complainant is entitled for possession of said flat on payment of remaining consideration of Rs.18,93,596/- [Rs.32,35,500/- minus Rs.13,41,904/-]. Hence, we answer Point No.4 in affirmative.

CC/12/213

11. Point No.5 (Alternate flat) :- Complainant has prayed that if said flat is not given or is not available then he asked for alternate flat in the same locality of same size for same consideration. We find that at the option of the complainant said alternative prayer is to be accepted. Hence, complainant is entitled for alternate flat on payment of remaining consideration of Rs.18,93,596/- [Rs.32,35,500/- minus Rs.13,41,904/-]. Hence, we answer Point No.5 accordingly.

12. Point No.6 (Alternatively Market Price) :- Complainant has alternatively prayed for Rs.48,25,753/- as value of the flat as per current market price as per Ready Reckoner. However, we find that complainant has not even paid half of the amount of agreed consideration and hence, we are not inclined to accept said prayer of the complainant. Hence, we answer Point No.6 in negative.

13. Point No.7 (Alternatively Refund) :- Complainant has alternatively prayed for refund of amount of Rs.13,41,904/- along with interest @ 18% p.a. from the date of respective payment till realisation. We find that if the flat is not available or any legal impediment is there, then at the option of complainant, complainant is entitled for refund of Ra.13,41,904/-. As far as rate of interest is concerned, in the allotment letter itself, it is mentioned that if there is default in payment of installment on the part of complainant, complainant is liable to pay interest @ 18% p.a. Considering this recital in the allotment letter, we find that we have to accept contention of the complainant that he is entitled for interest @ 18% p.a. on the amount which is paid by the complainant to the opponents while ordering refund of said amount. Hence, we answer Point No.6 accordingly.

14. Point No. 8 (Compensation) :- Complainant has claimed Rs.10 Page 7 of 9 CC/12/213 Lakhs as compensation for mental agony, trauma and harassment. We find that complainant has booked flat in the year 2009, paid sum amount initially and thereafter, paid some amount and total payment is Rs.13,41,904/-. However, possession was not given by the opponents of the said flat. On the contrary, it was contended that booking is cancelled and hence, complainant was required to approach this Commission and hence, it is very clear that complainant must have suffered mental agony, trauma and harassment. Hence, complainant is entitled for some amount on that count. However, we find that amount of Rs.10 Lakhs claimed by the complainant is exorbitant considering total consideration of the flat and payment made by the complainant. Considering all these circumstances, we find it proper to grant Rs.3 Lakhs to complainant on account of mental agony, trauma and harassment. Hence, we answer Point No.8 accordingly.

15. Point No. 9 :- In view of answers of Point Nos.1to8, complaint deserves to be partly allowed. Hence, we pass the following order :-

-: ORDER :-

1. Consumer complaint is partly allowed with costs quantified at Rs.25,000/- (Rupees Twenty-Five Thousand only) payable to the complainants by the opponents.

2. Opponents are directed to hand over possession of flat bearing No.404/B, admeasuring 446 sq.ft. carpet area on 4th floor in the building known as 'Jagruti Co-op. Housing Society Ltd.', situated at Siddharth Nagar, MIG Colony, Goregaon (West), Mumbai-400 104 to the complainant within two months from the date of intimation of deposit of remaining consideration in this Commission i.e. Rs.18,93,596/- (Rupees Eighteen Lakhs Ninety Three Thousand Five Hundred Ninety Six only). The complainant should deposit the said amount in this Commission for payment to opponents under intimation to the opponents and from that date within two months Page 8 of 9 CC/12/213 possession should be handed over to the complainant.

ALTERNATIVELY AT THE OPTION OF COMPLAINANT Opponents are directed to hand over possession of any other flat of the same area in the vicinity of said flat to the complainant within two months from the date of intimation of deposit of remaining consideration of Rs.18,93,596/- (Rupees Eighteen Lakhs Ninety Three Thousand Five Hundred Ninety Six only) in this Commission.

ALTERNATIVELY AT THE OPTION OF COMPLAINANT Opponents are directed to refund amount of Rs.13,41,904/- (Rupees Thirteen Lakhs Forty One Thousand Nine Hundred Four only) along with interest @ 18% p.a. to the complainant from the date of respective payment till realisation.

3. Opponents are directed to pay Rs.3,00,000/- (Rupees Three Lakhs only) to the complainant as compensation on account of mental agony, trauma and harassment suffered by the complainant.

4. Copies of the order be furnished to the parties.

Pronounced Dated 21st March 2018.

[ P. B. Joshi ] PRESIDING JUDICIAL MEMBER [ A. K. Zade ] MEMBER dd.