State Consumer Disputes Redressal Commission
Mr. Meghraj Malaviya vs M/S. H.R.Construction Co. on 3 October, 2019
CC/14/72 1/17
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
COMPLAINT CASE NO. CC/14/72
MR.MEGHRAJ MALAVIYA,
B-502, Silver Cloud, Sundar Nagar,
Kalina, Santacruz (East), ...........Complainant(s)
Mumbai 400 098.
Versus
1. M/s.H.R. CONSTRUCTION CO.,
A partnership firm
2. SHRI RAHUL N. PATEL,
3. SHRI KANTILAL A. PATEL,
4. SHRI MAHESH N. PATEL,
5. SHRI RAJESH R. PATEL,
(All 2 to 5 are partners as well as constituted
attorneys of M/s.H.R. Construction Co.
All having their office address at:
139, Seksaria Chambers,
2nd Floor, N.M. Road, Fort,
Mumbai 400 023.
6. M/s. RAJESH LIFESPACES PRIVATE
LIMITED,
(Formerly M/s.RAJESH BUILDERS (GROUP
OF COMPANIES),
Corporate Office:
R.B. House,
Off.Andheri Kurla Road,
MIDC Cross Road "B",
J.B. Nagar Jn., Andheri (East),
.........Opponent(s)
Mumbai 400 059.
BEFORE:
Mr.D.R. Shirasao - Presiding Judicial Member
Mr.A.K. Zade - Member
For the Advocate Ms.Supriya Patil a/w Advocate
Complainant(s): Mr.U.B. Wavikar
CC/14/72 2/17
For the Advocate Mr.S.B. Prabhavalkar for
Opponent(s): opponent nos.1 and 5.
Advocate Mr.Gautam Mehta for
opponentnos.2 and 4.
ORDER
Per Hon'ble Mr.D.R. Shirasao - Presiding Judicial Member:
(1) Complainant has filed this complaint for getting possession of flat from opponent along with other reliefs.
(2) Brief facts of the case are as under:
On 07/06/2009 complainant booked 2 BHK flat bearing No.603 in the building known as "Raj Maximus - A Wing" situated at Raj Maximus, Next to Union Bank Staff Quarters, Off.Laxman Mhatre Road, Borivali (West), Mumbai 400 103, on plot bearing CTS No.134 of Village Mandpeshwar at Dahisar (West), Taluka Borivli, Mumbai, with opponents for total consideration of Rs.51,75,000/- excluding stamp duty and registration charges. Opponents agreed to handover possession of the flat to complainant by October, 2011. On 07/06/2009 at the time of booking of flat complainant had deposited amount of Rs.5,00,000/- in cash with opponents through Shri Durgaram Malviya. However, opponents had not issued any receipt about the same in favour of complainant. Complainant had deposited amount of Rs.50,75,000/- with opponents on different dates. However, out of that amount, amount of Rs.35,00,000/- was deposited by cheque and amount of Rs.15,75,000/-was deposited by cash. Opponents issued receipt in respect of payment made by cheque of Rs.35,00,000/- in favour of complainant. However, opponents failed to issue receipts in respect of amount of Rs.15,75,000/- which was deposited by complainant in cash. As per CC/14/72 3/17 demand made by opponents complainant had also paid amount of Rs.3,30,000/- to opponents towards stamp duty and registration charges on 27/12/2012. Complainant was always ready and willing to pay balance amount of consideration of Rs.1,00,000/- to opponents at the time of taking possession of flat. Opponents had given draft agreement to complainant which was to be executed between complainant and opponents and to get the same registered. However, thereafter, opponents failed to collect the same from complainant and failed to get it registered. It is the contention of complainant that from time to time opponents promised him to handover possession of flat. However, opponents failed to handover possession of flat to complainant. Hence, complainant suspects that opponents might have sold the same to some other person although he had paid amount of consideration of Rs.50,75,000/- to opponents along with amount of Rs.3,30,000/- towards stamp duty and registration fees. Hence, complainant issued legal notice to opponents through his advocate on 06/11/2013 claiming possession of flat along with other reliefs. Opponents replied the same and denied the claim of complainant. Hence, complainant has filed this complaint for getting possession of Flat No.603 from opponents after executing agreement about the same from opponents. In alternative complainant has claimed possession of flat of similar area situated in the same locality for the same amount of sale consideration from opponent or in alternative claimed current market value of the flat of that area situated in that locality as per ready reckoner rate. Complainant has also claimed interest on amount of Rs.50,75,000/- which he had deposited with opponents @18% per annum along with costs and compensation.
(3) Opponent nos.1 and 5 contested the complaint by filing their written version on record. Opponent no.5 filed this written version for CC/14/72 4/17 himself and for opponent no.1. They further submitted that opponent no.6 is separate legal entity and there is no consumer relationship in between complainant and opponent no.6. Hence, complaint filed by complainant against opponent no.6 is not tenable and it be dismissed against opponent no.6. They further submitted that the last payment was made by complainant on 01/02/2010. As per contention of complainant opponents had agreed to give possession of flat to him within fifteen months from the date of booking of flat in the month of June, 2009. Hence, cause of action accrued on 30/09/2010. However, complaint filed by complainant is not within limitation and complainant has not filed any application for condonation of delay. The monetary claim made by complainant is also beyond period of limitation.
(4) It is the contention of opponent no.5 that complainant has filed this complaint at the instance of opponent no.4. Opponent nos.2 and 4 are cousins of opponent no.5 and their family relations are strained since 2010. Complainant has taken benefit of the same by making collusion with opponent no.4 and has filed this false complaint against them. It is the contention of opponent no.5 that complainant is an investor. He is investing his money in different projects. He has also invested amount of Rs.1,00,000/- in the project of Rajesh Construction Company Pvt. Ltd. on 15/03/2010. Complainant had invested his amount of Rs.35,00,000/- in the project of opponent no.1 through opponent no.4. Opponent no.4 had accepted the said consideration from complainant and subsequently transferred that amount in Raj Legacy in the month of June, 2010. Complainant was having knowledge of the same. However, he had not taken any objection for the same. In view of the same opponent no.1 to the knowledge of complainant had sold the flat in question to Pandurang Waman Borkar and Mrs.Vasudha Pandurang Borkar under CC/14/72 5/17 registered agreement on 24/06/2010 and handed over possession of flat to them and since then they are in possession of the flat.
Complainant has deliberately suppressed this fact while filing complaint. They further submitted that the claim of the complainant is beyond Rs.One crore as he has claimed market value of the flat form opponents. Hence, this Commission has no pecuniary jurisdiction to entertain the complaint. For all these reasons they submitted that the complaint filed by complainant against opponents be dismissed.
(5) Opponent no.3 filed his separate written version on record.
However, in general he supported the contentions raised by opponent nos.1 and 5 in their written version and supported their claim.
(6) Opponent nos.2 and 4 separately contested this complaint by filing their separate written version on record. They admitted that they are partners of opponent no.1 along with opponent nos.3 and 5. However, they submitted that presently due to family and business disputes relations in between opponent nos.2 and 4 are strained with opponent nos.3 and 5. Opponent nos.3 and 5 have complete control over the day-to-day affairs and records of the opponent no.1. They have prevented opponent nos.2 and 4 from attending day-to-day affairs of opponent no.1 and even not giving access to the documents and records of opponent no.1. However, they submitted that complaint filed by complainant is barred by limitation. Complainant is also investor and hence, complaint filed by him against opponents is not tenable. They further submitted that they had given letter to complainant for inspection of documents. However, complainant has not given inspection of documents to them. They further submitted that they have no access to the record CC/14/72 6/17 of opponent no.1. Hence, they are not in a position to submit anything in respect of those documents. They specifically denied that complainant has filed this complaint at the instance of opponent no.4. They submitted that whatever amount which was paid by complainant by cheque to them they have accepted the same on behalf of opponent no.1 and deposited the same in the account of opponent no.1. They specifically denied that they have received any amount from complainant in cash. They specifically denied that any amount received from complainant was transferred by them in Raj Legacy in the month of June, 2010. They specifically denied that they are Directors of Rajesh Construction Pvt. Ltd. They are only shareholders in that company. On the contrary opponent nos.3 and 5 are the Directors of this company and they have forcibly taken over control on the day-to-day affairs of opponent no.6 also. They also submitted that the complaint is beyond the pecuniary jurisdiction of this Commission as the claim of complainant is exceeding Rs.one crore. They further submitted that if there is any liability in respect of complainant against opponent nos.2 and 4 it will be jointly along with opponent nos.1, 3 and 5. For all these reasons they submitted that complaint filed by complainant be dismissed.
(7) Considering rival contentions of parties, evidence adduced by them on record and documents filed on record following points arise for our determination and we have recorded our findings on them for the reasons given below:
Sr.No. Points Finding
(i) Whether complainant is consumer of : Yes.
opponents? Of opponent
nos.1 to 5.
CC/14/72 7/17
(ii) Whether opponents have given deficiency: Yes.
in service to complainant? By opponent
nos.1 to 5.
(iii) Whether complainants are entitled to get: As per order
possession of flat from opponents along
with other reliefs from opponents?
(iv) What order? : As per final
order.
REASONS :
Point No.(i) - Consumers:
(8) In this case it is admitted fact that complainant had booked one 2
BHK flat bearing No.603 in the building known as "Raj Maximus - A Wing" situated at Raj Maximus, Next to Union Bank Staff Quarters, Off.Laxman Mhatre Road, Borivali (West), Mumbai 400
103. The said building is situated on plot bearing CTS No.134 of Village Mandpeshwar at Dahisar (West), Taluka Borivli, Mumbai. The total consideration of the flat is Rs.51,75,000/-. It is the contention of complainant that out of that amount he has already paid amount of Rs.35,00,000/- to opponents by cheque on different dates and opponents had issued receipts about the same in favour of complainant. Complainant has filed copies of receipts on record. It is the contention of complainant that irrespective of this amount he has paid amount of Rs.15,75,000/- to opponents by cash through Shri Durgaram Malviya. However, opponents have not issued receipts about the same in favour of complainant. It is also the contention of complainant that as per demand of opponents he has already paid amount of Rs.3,00,000/- towards registration charges and amount of Rs.30,000/- towards stamp duty to opponents. Although complainant had paid that much amount of sale CC/14/72 8/17 consideration to opponents and also deposited amount in respect of registration of agreement and stamp duty, opponents failed to execute agreement in favour of complainant and has not given possession of flat to him. Hence, complainant has filed this complaint against opponents for getting possession of flat along with other monetary reliefs.
(9) In this case it is the contention of opponents that complainant is an investor and hence, he cannot be considered as consumer under the provisions of Consumer Protection Act. It is the contention of opponent nos.1 and 5 that the amount of consideration which was paid by complainant was accepted by opponent no.4 and opponent no.4 had transferred this amount in other project by name Raj Legacy in the month of June, 2010. However, in this respect opponent nos.1 and 5 have not produced any documentary evidence on record. It is the contention of opponent nos.1 to 5 that complainant has booked one flat in Rajesh Construction Company Pvt. Ltd. and has paid amount of Rs.1,00,000/- by cheque on 15/03/2010. In that respect they have produced one booking form dated 12/03/2010 on record. However, we are of the opinion that merely on that basis it cannot be considered that complainant is regular investor in properties and he has been regularly dealing in selling and purchasing of property. In that respect opponents failed to adduce sufficient evidence on record. Hence, we are of the opinion that complainant is Consumer as per provisions of Consumer Protection Act 1986 of opponents. In this case it is admitted fact that opponent nos.2 to 5 are the partners of opponent no.1. It appears that there is inter se dispute in between the opponent nos.1, 3 and 2 and 4. Opponent nos.2 and 4 have specifically stated this fact in their written version. However, opponent nos.2 and 4 have admitted that they are partners of CC/14/72 9/17 opponent no.1 and they are still continuing with the partnership firm and partnership firm is not yet dissolved. In view of the same, we are of the opinion that complainant is consumer of the opponents and consumer complaint filed by complainant against opponent nos.1 to 5 is tenable. However, from the contention of complainant it is not appearing that complainant has paid any amount to opponent no.6 and opponent no.6 has promised to handover possession of flat to complainant. As such there appears no consumer and service provider relationship in between complainant and opponent no.6. Hence, we are of the opinion that complainant is consumer of opponent nos.1 to 5 and complaint filed against opponent nos.1 to 5 is tenable. Hence, we answer point no.(i) in affirmative.
Point nos.(ii) and (iii) - Deficiency, Possession of flat alongwith other reliefs:
(10) In this case it is admitted fact that complainant had deposited amount of Rs.35,00,000/- with opponent nos.1 to 5 and further deposited amount of Rs.3,00,000/- towards registration of agreement and amount of Rs.30,000/- towards stamp duty by giving two demand drafts to opponent nos.1 to 5. It is the contention of complainant that he had also deposited amount of Rs.15,75,000/- in cash with opponent nos.1 to 5. Irrespective of that opponents failed to issue either allotment letter of flat or failed to execute agreement in respect of flat in favour of complainant In this case it is admitted fact that the amount was deposited by the complainant in respect of flat No.603 situated in Building 'A' Wing of Raj Maximus with opponent nos.1 to 5. Hence, complainant has filed this complaint for getting possession of that flat or possession of any other flat in the vicinity or for refund of amount. In this case all the opponents have contested the complaint mainly on the point that complainant is CC/14/72 10/17 investor. It is their submission that complainant had invested this amount in the project of opponents and subsequently transferred his amount in Raj Legacy and as such he cannot be considered as consumer under the Provisions of Consumer Protection Act.
However, Ld.Advocate appearing for complainant submitted that opponents have failed to prove that complainant has transferred his amount to other project. On the contrary complainant has proved by filing documentary evidence on record that he had given this amount to opponent nos.1 to 5 for purchasing Flat No.603. Moreover he submitted that if complainant is purchasing more than one flat it cannot be considered as commercial transaction. For that purpose opponents have to produce sufficient evidence on record to show that complainant is dealing in purchasing and selling property. Opponents have failed to prove the same by adducing sufficient evidence on record. In that respect the Ld.Advocate appearing for complainant has relied on following rulings:
(i) (2000) 1 Supreme Court Cases 586, Lata Construction and Others V/s. Dr.Rameshchandra Ramniklal Shah. In this case it has been observed that when there is no delivery of possession and possession is claimed by the complainant then cause of action is continuous.
(ii) Order passed by the Hon'ble National Commission in the matter of Vatika Limited V/s. Shaleen Chugh & Anr. On 6th December, 2017. In this case the Hon'ble National Commission considered that merely complainant had purchased two residential units it cannot be considered for commercial purpose as defined in the Act.CC/14/72 11/17
(iii) Order passed by the Hon'ble National Commission on 12th February, 2015 in the matter of Kavit Ahuja and Shipra Estate Ltd. & Jai Krishna. In this case complainant had purchased three flats for different considerations. However, the Hon'ble National Commission considered that the same cannot be considered for commercial purpose. The Hon'ble National Commission further considered that opponents have to prove that complainant is continuously dealing in commercial activity. In absence of the same the purchase of three flats cannot be considered for commercial purpose.
(iv) Order passed by the Hon'ble National Commission on 30th May, 2006 in the matter of Broadway Tower India Pvt. Ltd.
V/s. Sharat Chawla. In this case the Hon'ble National Commission considered that the receipts are the essence of contract and directed opponents to refund the amount to complainant.
(11) As against this the Ld.Advocate appearing for opponent Nos.2 to 4 relied on following rulings:
(i) (1994) 1 Supreme Court Cases 1 in the case of S.P. Chegalvaraya Naidu (Dead) by Lrs. v/S. Jagannath (Dead) by Lrs. And Others.
And
(ii) (2007) 4 Supreme Court Cases 221, A.V. Papayya Sastry and Others V/s. Govt. Of A.P. and Others.
In both these cases it has been observed that the order is obtained by fraud and it be treated as nullity.
CC/14/72 12/17(12) In this case opponents failed to produce sufficient evidence on record to show that complainant has transferred his funds to Raj Legacy in the month of June, 2010. No receipt or documentary evidence is produced on record by opponents. Hence, we are of the opinion that the contention of opponents cannot be considered that complainant is investor and cannot be considered as consumer under the provisions of this Act. We have already considered this aspect above and considered that complaint filed by complainant against opponent nos.1 to 5 is tenable by answering point no.(i) in affirmative.
(13) In this case it is the contention of complainants that he has deposited amount of Rs.15,75,000/- with opponent nos.1 to 5 on different dates by way of cash. Opponents have not given receipt about the same to complainant. It is the contention of complainant that he had deposited this amount with opponent through Durgaram Malaviya. It is also the contention of complainant that he had deposited two demand drafts of Rs.3,00,000/- and Rs.30,000/- with opponents through his son Satish Malavia. For that purpose complainant has relied on the affidavit of Satish Malaviya. It appears that on 27/12/2012 he had deposited both these demand drafts with opponents towards stamp duty and registration charges. As per affidavit of Durgaram Malaviya it appears that he had deposited different amounts in cash to opponents for and on behalf of complainant. However, it appears that at the time of handing over of these amounts in cash Durgaram Malaviya had not asked for receipt about the same to the opponents and he has not given any reason why opponents had not issued any receipt for the same in favour of complainant. Complainant has failed to produce any other evidence on record to show that on that particular day that much amount was CC/14/72 13/17 cash in hand with complainant and he had given the same to Mr.Durgaram Malaviya for giving the same to opponents. Durgaram Malaviya has not given any reason why he had not claimed receipt for such payment and has not stated any reason for which opponent had not given receipt about such payment. In view of the same the affidavit filed by Durgaram Malaviya in favour of complainant appears doubtful and cannot be accepted. In view of the same we are of the opinion that complainant has failed to prove that he has deposited cash of Rs.15,75,000/- with opponents towards consideration of this flat.
(14) In respect of amount of Rs.35,00,000/- the complainant had deposited the same by cheque with opponents and opponents have issued receipt about the same in faovur of complainant. Hence, payment of amount of Rs.35,00,000/- only can be considered towards said flat by complainant to opponents.
(15) In this case it is the contention of complainant that on all the receipts which were issued by opponent nos.1 to 5 in his favour logo of Rajesh Builders and H.R. Construction Co is appearing. Subsequently Rajesh Builders is converted to M/s.Rajesh Lifespaces Private Limited. Complainant has filed documents in that respect on record. Hence, it is the contention of complainant that all the opponents are responsible for handing over possession of flat in question to him or in respect of alternative reliefs claimed by complainant against them. However, the contention of complainant in this respect cannot be accepted.
(16) Complainant has filed receipts in respect of payment of amount on record. On these receipts names of Rajesh Builders and H.R. Construction Co. are mentioned. However, all the receipts are CC/14/72 14/17 signed for and on behalf of H.R. Construction Co. There is no evidence on record that this amount was also accepted for Rajesh Builders. In view of the same Rajesh Builders who is now converted to opponent no.6 cannot be held responsible for the amount paid by the complainant towards purchase of flat. Hence, we are of the opinion that there is no privity of contract in between complainant and opponent no.6 and hence, opponent no.6 cannot be held responsible in respect of the payment made by the complainant. Hence, complaint is to be dismissed against opponent no.6.
(17) On perusal of receipts filed on record it has become clear that this entire amount has been accepted by opponent nos.1 to 5 from complainant towards 2 BHK flat bearing No.603 in the building known as "Raj Maximus - A Wing" situated at Raj Maximus, Next to Union Bank Staff Quarters, Off.Laxman Mhatre Road, Borivali (West), Mumbai 400 103, on plot bearing CTS No.134 of Village Mandpeshwar at Dahisar (West), Taluka Borivli, Mumbai. However, in this case it is particular to note that although complainant had made payment of these amounts to opponents, he had not obtained any allotment letter in respect of flat form opponent nos.1 to 5. In this case complainant himself has produced copy of agreement on record. However, complainant had not taken steps to get it executed from opponent nos.1 to 5. Hence, fact remains on record in respect of Flat No.603 no concluded contract is executed in between complainant and opponent nos.1 to 5. Opponent nos.1 to 5 have also not issued any allotment letter in respect of this flat in favour of complainant.
(18) In this case it is admitted fact that Flat No.603 is already sold by opponent nos.1 to 5 to Mr. and Mr. and Mrs.Borkar by executing agreement on 24/06/2010. It is the contention of opponent nos.2, 3 CC/14/72 15/17 and 5 that amount paid by complainant was accepted by opponent no.4 and he transferred that fund to Raj Legacy to the knowledge of complainant and hence, this flat no.603 was sold to Mr.and Mrs. Boarkar. As against this it is the contention of opponent no.4 that this fund of complainant was transferred by opponent nos.2, 3 and 5 in Raj Legacy and opponent no.5 is the Director of Raj Legacy and hence, they sold this flat to Mr.and Mrs. Borkar on 24/06/2010. We have already considered above that opponents have failed to prove by adducing sufficient evidence on record that funds were transferred to Raj Legacy. However, fact remains on record that opponent nos.1 to 5 have sold this flat to Mr.an Mrs.Borkar on 24/06/2010 and handed over possession of this flat to them on 30/10/2010 and since then they are in occupation of this flat. As in respect of Flat No.603 there is no concluded contract in between complainant and opponent nos.1 to 5 and opponent nos.1 to 5 have already sold this flat to Mr.and Mrs.Borkar in the month of June, 2010 and they are in possession of the same we are of the opinion that it will not be proper to direct opponent nos.1 to 5 to handover possession of flat No.603 to complainant. There is no evidence on record that there is any other flat available with opponents for handing it over to complainant. In fact there appears dispute in between opponent nos.2, 3 and 5 and opponent nos.2 and 4 in respect of this property. In view of the same we are of the opinion that it will be proper to direct opponent nos.1 to 5 to return amount of Rs.35,00,000/- which complainant admittedly deposited with them along with interest on that amount. We are of the opinion that till filing of complaint, complainant is entitled to get interest on this amount @18% per annum. However, future interest after filing of complaint on entire amount is to be given @9% per annum. Complainant is also entitled to get back the demand drafts given by CC/14/72 16/17 him to opponents of Rs.3,00,000/- and Rs.30,000/- towards registration charges and stamp duty. As complainant could not get flat in that project although he had deposited much of the amount with opponent nos.1 to 5, complainant is entitled to get compensation for that purpose from opponent nos.1 to 5 along with costs of litigation. As opponents have not given all these monetary reliefs to complainant for which he is entitled, opponent nos.1 to 5 have given deficiency in service to complainant. Hence, complainant is entitled to get abovesaid monetary reliefs from opponent nos.1 to 5. Hence, we answer point nos.(ii) and (iii) in affirmative against opponent nos.1 to 5 and in negative against opponent no.6 and proceed to pass the following order.:
ORDER
(i) Consumer complaint is hereby partly allowed.
(ii) Opponent nos.1 to 5 are hereby directed to pay jointly and severally amount of Rs.35,00,000/- (Rupees Thirty Five Lakhs only) to complainant along with interest on that amount @18% per annum from the date of deposit till filing of complaint.
(iii) Opponent nos.1 to 5 are further directed to pay future interest on amount of Rs.35,00,000/- (Rupees Thirty Five Lakhs only) @9% per annum from the date of filing of this complaint till realization of amount by complainant.
(iv) Opponent nos.1 to 5 to return both the Demand Drafts of Rs.3,30,000/- to complainant within a period of one month from the date of passing of this order.CC/14/72 17/17
(v) Opponent nos.1 to 5 are further directed to pay compensation of Rs.1,00,000/- (Rupees One Lakh Only) and amount of Rs.25,000/-
(Rupees Twenty Five Thousand only) towards costs of this litigation to complainant within a period of one month from the date of passing of this order, otherwise, opponent nos.1 to 5 will have to pay interest on this amount @9% per annum from the date of passing of this order till realization of amount by complainant.
(vi) Complaint is dismissed against opponent no.6.
(vii) Copies of this order be furnished to the parties forthwith.
Pronounced on 3rd October, 2019.
[D.R. Shirasao] Presiding Judicial Member [A.K.Zade] Member emp