State Consumer Disputes Redressal Commission
Mrs Karishma Lalwani vs Terrain Infrastructure Pvt. Ltd. And ... on 17 April, 2013
Daily Order
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint Case No. CC/12/30
MRS KARISHMA LALWANI
R/AT:- 52, SINDHU
MADI M. G. ROAD
GHATKOPAR EAST
MUMBAI
...........Complainant(s)
Versus
1. TERRAIN
INFRASTRUCTURE PVT. LTD.,
THROUGH ITS DIRECTOR,
MR. RAJA RAMESH
ADVANI,
ADDRESS:- 3/4 GROUND
FLOOR
SHRI DWARKA CO-OP
HOUSING SOCIETY LTD.,
PLOT NO.82/2B, SARASWATI
ROAD
OPPOSITE HDFC BANK
SANTACRUZ WEST
MUMBAI 400054
2. MR. RAJA RAMESH
ADVANI
ADDRESS:- 3/4 GROUND
FLOOR
SHRI DWARKA CO-OP
HOUSING SOCIETY LTD.,
PLOT NO.82/2B, SARASWATI
ROAD
OPPOSITE HDFC BANK
SANTACRUZ WEST
MUMBAI 400054
3. MR. RAMESH
CHANDULAL ADVANI
ADDRESS:- 3/4 GROUND
FLOOR
SHRI DWARKA CO-OP
HOUSING SOCIETY LTD.,
PLOT NO.82/2B, SARASWATI
ROAD
OPPOSITE HDFC BANK
SANTACRUZ WEST
MUMBAI 400054
4. MR. ASHOK PARUMAL
NAWANY
R/AT:- 1/2, BANDANA,
15TH ROAD,
BANDRA
MUMBAI 400050
5. MR. SHAILESH JAIN
R/AT:- K-16, SICKA
NAGAR
134, V. P. ROAD
MUMBAI -400004
............Opp.Party(s)
Complaint Case No. CC/12/48
MR. SUSHIL INDERMAL
JAIN
R/AT:- 4/103, OLD
HANUMAN BUILDING
CHUNAM LANE, LAMINGTON
ROAD
MUMBAI- 400007
...........Complainant(s)
Versus
1. TERRAIN
INFRASTRUCTURE PVT. LTD.,
THROUGH ITS DIRECTOR,
MR. RAJA RAMESH
ADVANI,
ADDRESS:- 3/4
GROUND FLOOR
SHRI DWARKA CO-OP
HOUSING SOCIETY LTD.,
PLOT NO.82/2B, SARASWATI ROAD
OPPOSITE HDFC BANK
SANTACRUZ WEST
MUMBAI 400054
2. MR. RAJA RAMESH
ADVANI
ADDRESS:- 3/4
GROUND FLOOR
SHRI DWARKA CO-OP
HOUSING SOCIETY LTD.,
PLOT NO.82/2B, SARASWATI ROAD
OPPOSITE HDFC BANK
SANTACRUZ WEST
MUMBAI 400054
3. MR. RAMESH
CHANDULAL ADVANI
ADDRESS:- 3/4
GROUND FLOOR
SHRI DWARKA CO-OP
HOUSING SOCIETY LTD.,
PLOT NO.82/2B, SARASWATI ROAD
OPPOSITE HDFC BANK
SANTACRUZ WEST
MUMBAI 400054
4. MR. ASHOK
PARUMAL NAWANY
R/AT:- 1/2,
BANDANA,
15TH ROAD, BANDRA
MUMBAI 400050
5. MR. SHAILESH
JAIN
R/AT:- K-16, SICKA
NAGAR
134, V. P. ROAD
MUMBAI -400004
............Opp.Party(s)
Complaint Case No. CC/12/49
DR. BHAWARLAL
JUHARMAL JAIN
R/AT:- B-602, MOTISH JAIN PARK
LOVE LANE, BYCULLA
MUMBAI - 400010
...........Complainant(s)
Versus
1. TERRAIN
INFRASTRUCTURE PVT. LTD.,
THROUGH ITS
DIRECTOR,
MR. RAJA RAMESH
ADVANI,
ADDRESS:- 3/4 GROUND
FLOOR
SHRI DWARKA CO-OP
HOUSING SOCIETY LTD.,
PLOT NO.82/2B, SARASWATI ROAD
OPPOSITE HDFC BANK
SANTACRUZ WEST
MUMBAI 400054
2. MR. RAJA RAMESH
ADVANI
ADDRESS:- 3/4
GROUND FLOOR
SHRI DWARKA CO-OP
HOUSING SOCIETY LTD.,
PLOT NO.82/2B, SARASWATI ROAD
OPPOSITE HDFC BANK
SANTACRUZ WEST
MUMBAI 400054
3. MR. RAMESH
CHANDULAL ADVANI
ADDRESS:- 3/4
GROUND FLOOR
SHRI DWARKA CO-OP
HOUSING SOCIETY LTD.,
PLOT NO.82/2B, SARASWATI ROAD
OPPOSITE HDFC BANK
SANTACRUZ WEST
MUMBAI 400054
4. MR. ASHOK
PARUMAL NAWANY
R/AT:- 1/2,
BANDANA,
15TH ROAD, BANDRA
MUMBAI 400050
5. MR. SHAILESH
JAIN
R/AT:- K-16, SICKA
NAGAR
134, V. P. ROAD
MUMBAI -400004
............Opp.Party(s)
BEFORE:
HON'BLE MR. Dhanraj
Khamatkar PRESIDING MEMBER
HON'BLE MR. Narendra
Kawde MEMBER
PRESENT:
Adv. Uday B. Wavikar
for the Complainants
Adv. Y. C. Naidu for
the Opponents Nos.1 to 3
Adv. S. N. Fadia for
the Opponents Nos.4 and 5
Common
order in C/12/30 + C/12/48 + C/12/49
Per - Hon'ble Mr.
Dhanraj Khamatkar, Presiding Member Since these three consumer complaints bearing Nos.30 of 2012, 48 of 2012 and 49 of 2012 involve identical facts and common question of law, all these three complaints are clubbed together and are decided by this common order. Consumer Complaint No.30 of 2012 is being treated as 'Master Complaint' while other two complaints are treated as 'Slave Complaints'.
[2] Alleging deficiency in housing construction service on the part of the Opponents viz. Terrain Infrastructure Pvt. Ltd., the Opponent No.1 herein and its Directors, the Opponents Nos.2 to 5 herein, the Complainants have filed these three consumer complaints, seeking direction as against the Opponents to execute and register agreement for sale in their favour and hand-over to them possession of residential premises together with consequential relief of compensation and costs of the proceeding.
[3] Mrs. Karishma Lalwani has filed Consumer Complaint No.30 of 2012. She alleges that as against the agreed consideration of `50,00,000/- she has paid to the Opponents an amount of `35,00,000/- and booked a flat bearing No.901, admeasuring 771 sq. ft. in carpet area on the ninth floor of the proposed building 'Terrain Heights' situate at Yashwant Nagar, Vakola, Santacruz (East), Mumbai - 400055. However, it is her case that inspite of repeated exchange of correspondence and notices the Opponents neither handed over the possession of flat to her nor executed the agreement for sale in her favour as contemplated under the Maharashtra Ownership Flats Act, 1963. Thus, alleging that there is adoption of unfair trade practice and consequential deficiency in service on the part of the Opponents, she has filed this consumer complaint.
[4] Mr. Sushil Indermal Jain has filed Consumer Complaint No.48 of 2012. His pleadings are identical to the pleading made by the Complainant in Consumer Complaint No.30 of 2012. Only difference is that he alleges that as against the agreed consideration of `45,00,000/- he has paid to the Opponents an amount of `9,00,000/- and booked a flat bearing No.602, admeasuring 661 sq. ft. in carpet area on the sixth floor of the proposed building 'Terrain Heights' situate at Yashwant Nagar, Vakola, Santacruz (East), Mumbai - 400055.
[5] Dr. Bhawarlal Juharmal Jain has filed Consumer Complaint No.49 of 2012. His pleadings are identical to the pleading made by the Complainant in Consumer Complaint No.30 of 2012. Only difference is that he alleges that as against the agreed consideration of `50,00,000/- he has paid to the Opponents an amount of `15,00,000/- and booked a flat bearing No.701, admeasuring 771 sq. ft. in carpet area on the seventh floor of the proposed building 'Terrain Heights' situate at Yashwant Nagar, Vakola, Santacruz (East), Mumbai - 400055.
[6] Pursuant to the notice before admission issued by this Commission, the Opponents appeared. Opponents No.1 to 3 contested the complaint by filing their reply opposing admission of the complaint as also filed their joint written version. Opponents Nos.4 and 5 did not file any reply or written version opposing admission of the complaint.
[7] Heard Adv.
Uday B. Wavikar on behalf of the Complainants Adv. Yogesh C. Naidu on behalf of the Opponents Nos.1 to 3 and Adv. S. N. Fadia on behalf of the Opponents Nos.4 and 5 on the point of admission of complaints.
[8] For the reasons stated here-in-below we are not inclined to admit these complaints.
[9] Firstly, on behalf of the Complainants it is submitted that the Opponents have played a fraud on the Complainants. Now, it is well-settled position of law under the Consumer Protection Act, 1986 that if "fraud" is alleged, it is desirable that the Complainant should be directed to approach the Civil Court as investigation about such fraud is required to be done not in a summary trial before the Consumer Fora but by a full-fledged trial before the Civil Court.
[10] Secondly, in all these complaints, the Complainants are seeking direction as against the Opponents to execute and register agreement for sale in their favour and hand-over to them possession of residential premises. It is settled position of law that the Courts/Fora may not create a contract for the parties. When the parties have no express or implied agreement on the essential terms of a contract, there is no contract. Courts/Fora are only empowered to enforce contracts, not to write them, for the parties. The function of the Court/Forum is to enforce agreements only if they exist and not to create them through the imposition of such terms as the Court/Forum considers reasonable. For this reason also we are not inclined to admit these complaints.
[11] Thirdly, in Consumer Complaint No.30 of 2012, the Complainant Mrs. Karishma Lalwani alleges that as against the agreed consideration of `50,00,000/- she has paid to the Opponents an amount of `35,00,000/- and booked a flat bearing No.901. In Consumer Complaint No.48 of 2012, the Complainant Mr. Sushil Indermal Jain alleges that as against the agreed consideration of `45,00,000/- he has paid to the Opponents an amount of `9,00,000/- and booked a flat bearing No.602. In Consumer Complaint No.49 of 2012, the Complainant Dr. Bhawarlal Jhuharmal Jain alleges that as against the agreed consideration of `50,00,000/- he has paid to the Opponents an amount of `15,00,000/- and booked a flat bearing No.701. Thus, according to these Complainants, each of them have paid to the Opponents an amount of `35,00,000/-, `9,00,000/- and `15,00,000/- respectively. It appears that these Complainants are well-educated and not illiterate persons and certainly they are well aware about provisions of law. None of these Complainants have produced on the record the receipts issued to them by the Opponents against the payments made.
It is very hard to believe that without insisting for receipts acknowledging payments the Complainants parted with huge sums. Before parting with such huge amounts the Complainants ought to have insisted upon the Opponents to issue receipts. However, strangely enough without insisting for receipts the Complainants parted with such amounts. Silence maintained by the Complainants in the complaint as to why they did not insist upon the Opponents to issue receipts in their favour is quite eloquent.
Thus, it is very hard for us to digest that in fact, these amounts were paid by the Complainants to the Opponents as a part-consideration for booking of flats.
[12] There is yet another aspect to this matter.
Complainant in Complaint No.30 of 2012 is claiming possession of a flat situated on the ninth floor whereas the Complainant in Consumer Complaint No.49 of 2012 is claiming possession of a flat situated on the seventh floor. During the course of arguments it is revealed that the Municipal Corporation of Greater Mumbai had granted Commencement Certificate to the Opponents for construction of a building only up to sixth floor. In the complaints as filed, the Complainants have pleaded that the Opponents misrepresented to the Complainants and believing their statement, the Complainants had booked the flat and thus, according to Complainants, the Opponents have indulged into unfair trade practice.
It is to be noted that the Complainants are the alleged purchasers and, therefore, it was their duty to find out whether or not the Opponents had a requisite permission to construct a particular floor. Not only that as per the provisions of Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 while entering into such type of transaction, the Complainants are entitled to ask for building permission, commencement of certificate and title deed and the builder is under an obligation to show and supply these documents to the complainants. Therefore, instead of believing in the verbal representation made by the Opponents, the Complainants ought to have asked for this information and the documents from the Opponents and thereafter they should have parted with the money.
Therefore, we cannot see that the Complainants while entering into the transaction had taken due diligence in seeing whether Opponents are having necessary permission to construct a building comprising of more than six floors. Even if we see the provisions of Section 14 of Consumer Protection Act, 1986, it is abundantly clear as to what types of relief Consumer Fora can grant. In the present matter, relief is claimed for the alleged contract which is not performable and therefore, it is not a 'consumer dispute'. Therefore, we refrain to entertain these complaints.
No doubt the complainants may have other alternative remedy in the Civil Court. Our observations are fortified by the view taken earlier by this Commission in Consumer Complaint No.20 of 2013 (In the matters of Mr. Sanjay K. Jain and Another Vs. A. A. Estates Pvt. Ltd. and Others ) decided on 14/2/2013 (Quorum - Hon'ble Mr. Justice S. B. Mhase, President; Hon'ble Mr. Narendra Kawde, Member and Hon'ble Mr. S. B. Sawarkar, Member).
[13] There is one more aspect of these complaints. On behalf of the Opponents Nos.1 to 3 it is alleged that the Complainants had not paid these amounts to the Opponents towards booking or part-consideration for the flats but the Complainants had advanced these amounts to the Opponents by way of loan and the Opponents Nos.1 to 3 are ready and willing to repay these amounts to the Complainants. Complainants even though strongly objected to such suggestion/submission, miserably failed to lead any cogent corroborative documentary evidence to shatter such defence of the Opponents Nos.1 to 3 in order to prima-facie prove that they are 'consumers' vis--vis the Opponents. Thus, there is word against word. Thus, such an issue cannot be effectually adjudicated before the Consumer Forum in a summary trial under the Consumer Protection Act, 1986 and it is open for the parties to approach the Civil Court and thrash out this issue properly as per law in a full-dressed trial.
[14] This is a very strange case. Here, the Opponents Nos.1 to 3 are contesting these complaints while the Opponents Nos.4 and 5, who are also the Directors of the Opponent No.1 Company are supporting the case of the Complainants.
It is the case of the Opponents Nos.1 to 3 that in fact the monies paid by the Complainants were the funds infused in the business of the Opponent No.1 by the Opponent No.4 through the accounts of these Complainants. It is alleged that the Complainants are the relatives of the Opponents Nos.4 and 5 and present complaints are nothing but collusive complaints with the Complainants acting on the one hand in filing the present complaint and prosecuting the same and the Opponents Nos.4 and 5 colluding with the Complainants with a view to secure certain orders which would impede the working of the Opponent No.1 Company and thereby subjugate the Opponents Nos.2 and 3 to concede to the illegal demands of the Opponents Nos.4 and 5.
Thus, according to the Opponents Nos.1 to 3 present complaints are being filed and prosecuted in gross abuse of due process of law and these complaints are frivolous and vexatious complaints within the meaning of Section-26 of the Consumer Protection Act, 1986. Opponents Nos.4 and 5 have not specifically denied these contentions raised by the Opponents Nos.1 to
3. Even the Complainants have not expressly denied such contentions.
Upon hearing the parties at length prima-facie we find that these complaints are the surrogate litigations and/or proxy litigations initiated by the Opponents Nos.4 and 5 through the Complainants herein. Such litigations should not be encouraged and entertained by the Consumer Forum under the Consumer Protection Act, 1986. There appears to be dispute inter-se between the Opponents Nos.1 to 3 on one hand and the Opponents Nos.4 and 5 on the other hand.
Moreover, the Opponents Nos.4 and 5 have also filed a Company Petition before the Hon'ble Bombay High Court for directing winding up of the Opponent No.1 Company.
Thus, the outcome of the decision of the Hon'ble Bombay High Court in Company Petition No.69 of 2012 with Company Petition No.94 of 2012 shall have a direct bearing on the right, title and interest of the present Complainants. Thus, it would not be desirable for us to admit these complaints when the matter is pending before the Hon'ble Bombay High Court.
[15] Further, on perusal of the documents on the record it transpired to us that questions involved in these complaints are somewhat similar or identical to questions involved for adjudication in Notice of Motion (L) No.1458 of 2012 in Suit (L) No.1156 of 2012 alongwith Notice of Motion (L) No.1459 of 2012 in Suit (L) No.1157 of 2012 alongwith Notice of Motion (L) No.1460 of 2012 in Suit (L) No.1158 of 2012 (In the matters of Shweta Luthria & Anr. Vs. Terrain Infrastructure Pvt. Ltd. and Ors) pending before the Hon'ble High Court of Judicature at Bombay, Ordinary Original Civil Jurisdiction. The decision of the Hon'ble Bombay High Court in these matters will be squarely applicable to the cases of the Complainants herein and that will definitely sort out the grievance of the Complainants herein. Thus, we are of the considered opinion that the matter is sub-judice and, therefore, we refrain ourselves from admitting these three complaints.
[16] Thus, for the foregoing reasons, prima-facie we are of the view that these consumer complaints are not bonafide and genuine actions of flat-purchasers and as such, no relief can be granted in their favour. We hold accordingly and pass the following order:-
ORDER Consumer Complaints bearing Nos.CC/12/30, CC/12/48 and CC/12/49 are not admitted and stands rejected in limine.
Parties to bear their own costs.
Pronounced on 17th April, 2013 [HON'BLE MR. Dhanraj Khamatkar] PRESIDING MEMBER [HON'BLE MR. Narendra Kawde] MEMBER kvs