State Consumer Disputes Redressal Commission
Mr.Anil Gaud & Ors vs M/S.Ionic Realty (Eco City) ... on 23 September, 2022
1 (CC/17/332)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO.CC/17/332
Mr. Anil Gaud
Mrs.Saroj Gaud
Shiv Shakti General Store,
Tank Pakhadi,
Road No.3, Sahar Gaon,
Andheri(E),
Mumbai 400 099. .........Complainant(s)
Versus
1.M/s.Ionic Realty (Eco City) Pvt.Ltd.
Plot no.8,
Shah Industrial Estate
Off Veera Desai Road,
Andheri (W) Mumbai 400 053.
2. Mr.Azam Abdul Aziz Khan
Director of
M/s.Ionic Realty (Eco City) Pvt.Ltd.
Plot no.8,
Shah Industrial Estate
Off Veera Desai Road,
Andheri (W) Mumbai 400 053.
3.Mr.Dilip Keshav Pagare
Director of
M/s.Ionic Realty (Eco City) Pvt.Ltd.
& ors
Plot no.8,
Shah Industrial Estate
Off Veera Desai Road,
Andheri (W) Mumbai 400 053.
4.Mr.Nadim Mohammed Naim Shaikh
Director of
M/s.Ionic Realty (Eco City) Pvt.Ltd.
& ors.
Plot no.8,
2 (CC/17/332)
Shah Industrial Estate
Off Veera Desai Road,
Andheri (W) Mumbai 400 053.
5.M/s.Crystal Homecon Pvt.Ltd.
Address: Next to Homeopathy College
Sainath Nagar,
Naringi Virar
Bypass Road ,
Virar (E) 401 301
6.Mr.Vishram Shivram Sawant
Director of
M/s.Crystal Homecon Pvt. Ltd.
Address: Next to Homeopathy College
Sainath Nagar,
Naringi Virar
Bypass Road ,
Virar (E) 401 301 Opponent(s)
BEFORE :
Mr.Justice S.P.Tavade, Hon'ble President
Smt.S.T.Barne, Hon'ble Judicial Member
PRESENT:
For the
Complainant(s) Advocate Sarang Pathak
For the
Opponent(s): None
JUDGMENT
(Dated: 23rd September, 2022) Per : Mr.Justice S.P.Tavade, Hon'ble President Complainant has filed this consumer complaint against opponents for getting possession of flat or in alternative, for refund of amount alongwith costs and compensation. Brief facts of the case are as under :
[1] The Complainant is resident of, Andheri, Mumbai. Opponent No.1 is a Private Limited Company incorporated and registered under the provisions of the Companies Act, 1956. Opponent Nos.2 to 4 are the Directors of opponent 3 (CC/17/332) No.1. Opponent No.5 is a Company incorporated under the Companies Act, 1956 and the company which took upon itself development right from the opponent No.1 of the project in which complainants have booked the flat.
Opponent No.6 is the Director of opponent No.5.
[2] The Opponents had advertised their project by name 'Ionic Eco City', situated at the plot bearing survey No.111 (all parts) Kofrad village, Tal.Virar, Dist.Thane (presently district Palghar). Being allured by the advertisement, the complainant has booked residential flat bearing No.104, admeasuring area 530 sq.ft., Building No.8 of the proposed building known as 'Ionic Eco City', for total consideration of Rs.16,75,000/-. Opponent No.1 through its Director represented the complainant that, they have got the plan sanctioned from CIDCO and other Government authorities. Opponent No.1 issued allotment letter dated 23/02/2011. Complainant paid part consideration in the sum of Rs.6,25,000/-. Subsequently, opponent No.1 informed the complainant that they have transferred development rights to the third party i.e. Crystal Homecone Pvt. Ltd.-opponent No.5. Inspite of repeated requests, opponents failed to register the agreement for sale in favour of the complainant. Evenafter repeated follow ups with the opponents, opponents failed to handover possession of the booked flat to the complainant. When the complainant visited the spot, they surprised to see the board of Viva Homes Developers on that land instead of board of Opponent No.1. It is the contention of complainant that, opponents had no proper rights to develop the said project on the said plot, so also it was not belonging to them. As opponents had cheated the flat purchasers, a criminal complaint was filed against Opponent No.2 in Arnala Sagari Police 3 Station u/s 420 r/w 34 of I.P.C. and subsequently, it was transferred to EOW, Palghar. The statement of complainant was also recorded in that case. Opponent No.2, thereafter, approached to the Sessions Court for getting anticipatory bail. However, the same was rejected on 09/09/2015. Thereafter, Opponent No.2 4 (CC/17/332) approached to the Hon'ble High Court, Mumbai for getting anticipatory bail in that crime. At that time, Opponent No.2 accepted the liability and also agreed to clear dues of all the flat purchasers before the Hon'ble High Court. Inspite of assurance, the opponents failed to clear dues of the complainant and also failed to handover possession of flat to him. In view of the same, the complainant has filed this complaint against opponents for getting possession of flat No.104 or in alternative for getting refund of amount of Rs.6,25,000/- alongwith interest on that amount alongwith costs and compensation.
[3] After admission of consumer complaint, notices were issued to the opponents. However, the same could not be served. Hence, ultimately, they were served by a paper publication notice. But no one appeared for the opponents in the consumer complaint and contested the same. Hence, by passing order on 13/10/2021 this Commission has directed to proceed this complaint ex-parte against opponents. The complainant filed his affidavit of evidence and documents on record alongwith notes of arguments.
[4] We have perused the complaint, evidence of complainant and heard argument advanced on behalf of complainant. The contentions raised by the complainant are supported by documentary evidence and affidavit filed on record, which remains unchallenged. It is submitted that, the complainant was shocked and surprised to see the board of 'Viva Homes' on the project instead of opponent No.1. No document to that effect is produced on record. Similarly 'Viva Homes' is not a party to this complaint. But the fact remains that the complainant did not receive possession of booked flat inspite of payment of consideration in the form of booking amount nor the amount is refunded by the opponents to the complainant evenafter waiting for indefinite period. The Opponents have used hard earned amount of complainant, in the form of consideration, for indefinite period and compelled the complainant to run from pillar to post for possession of his dream house or for getting refund of booking 5 (CC/17/332) amount. Project floated by the opponents is not completed. There is no possibility of construction of building over the said project. Therefore, there is no question of handing over possession of booked flat to the complainant. It amounts to deficiency in service and unfair trade practice on the part of opponents. Hence, we are of the opinion that complainant is entitled to get refund of amount paid in the form of consideration alongwith interest, costs and compensation. Hence, we proceed to pass the following order-
ORDER
1) Opponents are held guilty of deficiency in service and unfair trade practice.
2) Consumer complaint filed by complainant against opponents is hereby partly allowed subject to costs in the sum of Rs.25,000/- to be paid by opponents to the complainant.
3) Opponents are hereby directed to refund amount of Rs.6,25,000/- to the complainants alongwith interest on that amount @ 12 % p.a. from the date of respective deposit by complainant with opponents till realization of amount by complainants.
4) Opponents are further directed to pay compensation in the sum of Rs.1,00,000/- to complainant towards mental pain and agony.
5) Opponents are directed to pay the amount of costs and compensation to complainant within the period of 30 days from passing of this order. Otherwise, all amounts shall carry interest @ 15 % p.a. from the date of passing of this order till realization of amount by complainant.
6 (CC/17/332) Copy of order be supplied to the parties.
[Justice S.P.Tavade] President [S.T.Barne] Judicial Member rsc