State Consumer Disputes Redressal Commission
Pravin N. Gada & Ors. vs Arenja Industries Limited & Anr. on 26 February, 2013
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. CC/10/78
1. Pravin N. Gada, Senior
Citizen
Res. at Plot No. 441,
Daya Bhuvan, Shraddhanand
Cross Road, Matunga
(C.R.), Mumbai 400 019.
Maharashtra
...........Complainant(s)
Versus
1. Arenja Industries Limited
Off. at 507, Sharda Chambers,
15, New Marine Line, Mumbai 400 020.
Maharashtra
2. Akshar Construction
Off. At 7 & 8, Shreeji Seva, Plot No.
42, Sector 42, Opp. Seawood
Rly Stn., Nerul, Navi Mumbai 400
706.
Maharashtra
.........Opp.Party(s)
Complaint Case No. CC/10/82
1. Jagdish C. Shah, HUF
Mr. Jagdish C. Shah, Karta,
Senior Citizen, res. at D-2/210, Om Jayalaxmi
Premises C.S.L., 4th Floor, Sion (East),
Mumbai 400 022.
Maharashtra
2. Bipin C. Shah, HUF represented by Mr. Bipin C. Shah
Senior Citizen, res.
at D-2/210, Om
Jayalaxmi Premises C.S.L., 4th Floor, Sion East, Mumbai 40 022.
Maharashtra
...........Complainant(s)
Versus
1. Arenja Industries Limited
Off. at 507, Sharda Chambers,
15, New Marine Lines, Mumbai 400 020.
Maharashtra
2. Akshar Construction
Off. at 7 & 8, Shreeji Seva, Plot No.
42, Sector 42, Opp. Seawood
Rly Stn., Nerul, Navi Mumbai 400
706
Maharashtra
............Opp.Party(s)
Complaint Case No. CC/10/83
1. M/s. President
Enterprises
Off. at 27-Sir P. M. Road, Kermani
Building, Opp. Citi
Bank, Fort, Mumbai 400 001.
Maharashtra
...........Complainant(s)
Versus
1. Arenja Industries Limited
Off. at 507, Sharda Chambers,
15, New Marine Lines, Mumbai 400 020.
Maharastra
2. Akshar Construction
Off. at 7 & 8, Shreeji Seva, Plot No. 42, Sector 42, Opp.
Seawood Rly.
Station, Nerul, Navi
Mumbai 400 706.
Navi Mumbai
Maharashtra
............Opp.Party(s)
BEFORE:
HON'BLE MR. S.R. Khanzode PRESIDING MEMBER
HON'BLE MR. Narendra Kawde MEMBER
PRESENT:
Mr.A.V. Patwardhan,Advocate,
Proxy for Navdeep Vora
& Associates, Advocates & Solicitors and Shreeram
Shirsat, Advocates, Advocate for the complainants.
Mr. S. B. Prabhavalkar,
Advocate for the opponents.
ORDER
Per Shri S.R. Khanzode, Honble Presiding Judicial Member These three consumer complaints are disposed of by this common order since they involved mostly identical facts and involved common question of law. It is pertinent to note that though the complainants in each consumer complaints are different, they have entered into an agreement in identical circumstances before commencement of construction with opponent No.1/builder-Arenja Industries Ltd. (hereinafter referred to as builder). They suffered equally in the course of time since the project was delayed and ultimately also suffering the same circumstances since the project was given for further development to opponent No.2-Akshar Construction (hereinafter referred to as second builder).
2. The builder-Arenja Industries Ltd. tried to get plots Nos.59, 60 & 61 admeasuring about 7969.10 sq.mtrs. situated in Sector 15, CBD Belapur, Navi Mumbai from the New Township Development Authority, namely, CIDCO. They have an intention to construct the flats situated in different buildings, namely, Wings A, B, C, etc. In anticipation of getting plots and to construct a complex of buildings known as Arenja Apartments, they started accepting booking for the flats from the prospective buyers in the year 1993.
3. As far as complaint No.78/2010 is concerned, complainant-Mr.Pravin Gada was in lookout for residential premises and coming to know about the proposed project of the builder, contacted him and after knowing from the builder that the project of Arenja Apartments was one and only of its own kind in city of Navi Mumbai which would comprise of all modern amenities and facilities and after taking into consideration the past record of the builder of completed projects booked the flat No.802 situated on 8th floor, A-wing, sea facing admeasuring about 1085 sq.ft. super built-up area (760 usable area i.e. carpet area) for total consideration of `14,37,625/-. Out of which cash component was of `4,87,625/- which he paid along with `1 Lakh by cheque. Consequent to it, the builder issued allotment letter dated 25/09/1993 mentioning lump sum price of `7,50,000/- and acknowledging `1 Lakh received by cheque as advance deposit. Balance consideration of `6,50,000/- was to be paid as mentioned in the allotment letter after approval of the plans and progress of the construction. However, no progress of the work could be made awaiting allotment of the plots from the CIDCO vis--vis sanction of the plan, etc. On 04/03/1996 the builder informed to the complainant-Mr.Pravin Gada reconfirming the booking of flat No.802 situated on 8th floor and that name of the building complex was changed to Sea Scape. However, area of the flat remained the same but the consideration was raised from `7,50,000/- to `9,50,000/- and this additional consideration of `2 Lakhs which is mentioned in the said letter(second allotment letter), the complainant agreed to pay it within 15 days and the balance as mentioned in the payment schedule therein. It is the case of the complainant that these changes were made unilaterally by the builder, but he conceded to it and paid the additional consideration of `2 Lakhs i.e. `1 Lakh in cash and another `1 Lakh by two cheques of `50,000/- each and filed receipts dated 03/08/1996 issued by the builder.
4. On 30/09/1996 the builder informed to the complainant-Pravin Gada that agreement with the CIDCO was signed and then as per the second allotment letter demanded the installment of `34,000/- which was fallen due on such contingency. According to the complainant said amount was due upon only signing the agreement and therefore, demand made was pre-mature.
Reference to rest of the facts which are common for all the complaints is made, infra.
5. As far as consumer complaint No.82/2010 is concerned, the complainant-Mr.Jagdish C. Shah, HUF and Mr.Bipin C. Shah, HUF since were in need of residential premises for their family members, booked flat No.C-302 situated on 3rd floor, sea facing admeasuring about 1085 sq.ft. super built-up (760 usable area i.e. carpet area) in the Arenja Apartments, supra, for total consideration of `13,35,275/ which included cash component of `6,15,275/-. On paying said cash component and payment through cheque of `80,000/- as alleged by the complainants, allotment letter dated 25/08/1993 was issued showing the consideration of `8 Lakhs acknowledging receipt of `80,000/-. Balance payment of `7,20,000/- has to be made as per the schedule mentioned therein after commencement and progress of the construction.
However, the work could not be commenced for the same reasons mentioned earlier in the complaint filed by Mr.Pravin Gada. The builder thereafter issued a letter dated 18/12/1995 (hereinafter referred to as second allotment letter) informing the complainants that the CIDCO had offered the plots mentioning the terms and further confirming the booking for flat No.C-302 situated on 3rd floor of the building Sea Scape and confirming that said flat is of 760 sq.ft. usable area mentioning revised total consideration of `10 Lakhs. The enhanced price of `2 Lakhs as mentioned in the said letter was agreed to be paid by the complainants-Mr.Jagdish C. Shah, HUF and Mr.Bipin C. Shah, HUF within 15 days. The complainants termed this as unilateral act on the part of the builder but, conceded to it and further alleged that each one of the complainants paid `1 Lakh and thus, paid further sum of `2 Lakhs referred above on 12/04/1996 witnessed by receipt issued on 12/04/1996. On 30/09/1996 the builder made further demand of `38,000/- due as per second allotment letter mentioning that the builder had signed the agreement of sale with the CIDCO. Said amount was accordingly paid witnessed by receipt dated 29/11/1997. Further demands were also met by making payment of `38,000/- witnessed by receipts dated 12/01/1998 and 27/04/1998. Thus, in all three installments of `38,000/- were paid making total payment of `1,14,000/-. It is also alleged that further payment i.e. `38,000/- on 25/07/2001 and another `38,000/-
on 06/09/2001 were made witnessed by respective receipts. The complainants-both HUF made a preliminary grievance that formal agreement was not executed by the builder and thereafter, they referred to the development after the meeting of the flat purchasers conveyed on 10/06/2001.
Further facts are recounted as common facts in all the three complaints.
6. Referring to consumer complaint No.83/2010, complainant-M/s.President Enterprises, a partnership firm through one of its partner Mr.Pratik Shashikant Gada in or about in the month of March 1993 booked a flat No.704 situated on 7th floor in C-wing admeasuring 1415 sq.ft. super built-up area (990 usable area i.e. carpet area) in the Arenja Apartments, supra, for total consideration of `19,17,325/- including the cash component. On receipt of payment of cash component and `25,000/- and `35,000/- by cheque, total amount of `60,000/- along with cash component, total amount of `7,47,325 by 27/09/1993 the builder only acknowledging the payment received by cheque issued allotment letter dated 18/12/1995. Total consideration as per said allotment letter (hereinafter referred to as second allotment letter) was shown as `12,30,000/- i.e. excluding cash component and further acknowledging the receipt of payment of `60,000/- by cheque, supra. Balance payment of `8,90,000/- is to be made as per the payment schedule given in the letter. The complainants had made further payment of `47,000/- on three occasions witnessed by receipts dated 14/10/1996, 11/12/1997 and 16/04/1998 and earlier to that payment of `2 Lakhs made by four cheques of `50,000/- each witnessed by receipt dated 12/10/1996. Earlier to that on booking of the flat in the year 1993 total consideration was shown as `8 Lakhs and acknowledging the receipt of `80,000/-, allotment letter dated 25/08/1993 was issued and thereafter second allotment letter came to be issued. According to the complainants-M/s.President Enterprises, it was unilateral act on the part of the builder, but they conceded to it and made further payment. Thereafter, they refer to the developments of the year 2001 after calling the meeting of flat purchasers in June 2001 and to which reference is made, infra.
7. As earlier pointed out the builder planned the building initially as Arenja Apartments which subsequently changed in the year 1996 (second allotment letter) to Sea Scape. Area of the flats offered to each complainant in three complaints remained the same. The project was stalled and could not be completed for the reasons mentioned in a Circular conveying the meeting dated 10/06/2001. Minutes of the said meeting are on record which are not in dispute by either of the parties i.e. all the complainants as well as the builder. Since those minutes are relevant to settle the dispute before us, we prefer to reproduce the same for the sake of clarity :-
Minutes of the meeting of the flat buyers of Seascape Plot No.59, 60 & 61, Sector 15m CBD Belapur, held on 10th June 2001 at Arenja Chamber II, Belapur, Navi Mumbai.
Majority of the purchaser5s were not paying their dues because of the apprehensions that in the event of other owners not paying their dues, the project may get delayed and then money would be blocked and existing project getting delayed.
Therefore in order to sort out these apprehensions and also for the smooth completion of the project, the meeting was called on 10th June, 2001 at Sector 15, C.B.D., Belapur, Navi Mumbai by the builder, Mr.Surender Arenja of M/s.ARENJA INDUSTRIES LTD. inviting suggestion of the buyers of flats of Seascape Plot No.59, 60 & 61, Sector 15, C.B.D., Belapur, Navi Mumbai, with the following objectives.
1. To update them about the status of the project.
2. Reason for non-progress of the project and find out amicable way out for completion of the project.
3. Mr.Nemchand Chedha (Builder in Navi Mumbai) and Mr.Nirmal Gangwal (Financial Advisor to Builder) also explained their views and gave suggestions.
After due discussion on all the aspects of the project, constraints faced by builder and present market situation and completion, the following decision has been taken unanimously by the body :
a) It was decided to form a co-ordinating committee to monitor progress and cash flows.
b) In view of the loss of confidence and for effective mobilizing and monitoring of the cash flow (i.e. funds are utilized for the purpose for which it was collected), the body was decided to form a co-ordinating committee. The following members has been unanimously chosen to this effect
1) Mr.Surender Arenja
2) Mr.Jagdish Shah
3) Mr.Umesh Mehta
4) Mr.Balmukund Arya
5) Mr.Manohar Shroff
6) Mr.Pravind Gada
c) To construct only one tower i.e. Tower A and Shopping and transfer purchasers of flats booked/reserved in B & CTower A.
d) It was also informed to the members that if the funds available on time, the construction of Tower A and Shopping can be completed in all respect within the time frame of 15 months and avoid heavy penalties that could be imposed by CIDCO.
Therefore all the members attending the meeting have agreed to pay their existing overdues / future dues on time for smooth completion of the project and also request the absent members to co-operate.
e) In order to motivate the defaulters, Builder agrees to waive the accrued interest if the such arrears are paid as under
:
i) Within 30 days from the date of notice, no interest.
ii) Next 30 days interest to be charged @ 2% per month.
iii) If the old amount is not realized during the next 30 days, the advance amount already received would be forfeited.
f) It was also decided that a separate account will be opened in the name of Arenja Industries Ltd.
A/c. Sea Scape, Tower A and Shopping.
g) Receipt from the existing owners would be deposited in new A/c.
h) The working committee will monitor the entire cash flows.
i) The cheque will be issued only under the signature of Mr.Arenja with any two of the committee members jointly.
j) Estimated cost required to complete A Tower & Shopping is `415 lakhs and in order to complete the project in 15 months it was proposed that all the recoverable arrears and also uncalled amounts from the existing owners amounting to approx. `445 lakhs and addition to this amount, if required and when accrued sale proceeds to the extent of `80 lakhs from the unsold areas of builders in A Tower and shopping be used for construction and upon completion of construction builders will be at liberty to transfer the surplus amounts to their other accounts.
k) it was also decided that Mr.Arenja will be solely responsible for obtaining the Occupation Certificate for said Tower A & Shopping.
l) Installment call to accompany a progress report issued by the committee members signed by at least 2 members.
8. The builder had informed viz. its communication dated 07/07/2001 about conveying another meeting on 15/07/2001. Said meeting was of all the buyers and making further payment from the respective buyers.
9. As far as complainant-Mr.Pravin Gada is concerned, it is his case that since the builder did not adhere to the proceeding of the minutes dated 10/06/2001 and since there was no progress of the work seen, the demand was pre-mature. In the meeting dated 15/07/2001 the buyers had in fact recorded their stand that they would make further payment only upon execution and registration of the agreement as required under the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA in short) as committed by the builder and on showing progress of the work. Therefore, complainant-Mr.Pravin Gada further submitted that the letter dated 06/02/2002 from the builder demanding installments and threatening termination of allotment have no legal consequences. Said letter, therefore, was duly replied by the complainant-Mr.Pravin Gada brining all these facts to the notice of the builder on 11/10/2002.
10. It is further alleged that thereafter the buyers noticed demolition of the constructed work upto third floor and later on they came to know that the development of the plots and construction of the building was assigned to second builder by the builder as per their development agreement dated 30/08/2006. Further the buildings were accordingly constructed having stilt and thirteen floors by the second builder wherein the flats were reserved for the builder as per the development agreement dated 30/08/2006 to cater the needs and previous obligations incurred by the builder towards buyers with whom the builder had entered into an agreement (obviously including the complainants from three consumer complaints). Those buildings were completed and received completion certificate also in the year 2007. In the meantime, CIDCO also executed Deed of Confirmation dated 09/08/2007 in favour of the builder about leasing the plots Nos.59, 60 & 61, supra.
11. However, as it appears, the issues between the complainants and the flat purchasers with whom the builder had entered into an agreement remained unsettled. One of the buyers Mrs.Zenita L. Machado even filed a Company Petition No.737/2004 for winding up against the builder. Similarly, one of the Financial Institutions, namely, PNB Housing Finance Ltd. had sued the builder by filing a civil suit before the Original Side of the High Court at Mumbai bearing Suit No.2634/2004 wherein Notice of Motion No.3389/2004 was taken. In an order on the Notice of Motion, the High Court observed that the building was not at all constructed. Relevant portion of the order admitting the suit was reproduced in consumer complaint No.78/2010 in para 33 and the same is not in dispute.
12. Before proceeding further we would like to mention another undisputed fact covering all the three complaints is about Architect-Mr.Deepak Mehta issuing no objection to the builder by his letter dated 25/10/2004 to appoint new Architect since the builder desired so, wherein as relevant to the progress of the construction by the builder, it is observed as under :-
That the approval and C.C. was obtained from NMMC vide No.NMMC/TPO/BP/925 dated 05/06/1997 and the present stage of work is ground + 3 R.C.C. work of wing A is complete, B & C wing upto ground level only and pilling work of shopping area is partly complete.
Thus, as earlier pointed out this construction was demolished later on and the second builder obtaining new sanction for a new plan, constructed six buildings which are presently standing over the site. It is also not in dispute that sanction for due plan was obtained in the year 2007 and the buildings received Occupancy Certificate somewhere in the year 2008.
13. The fact remains is that even after building is ready for habitable occupation after completion of the building and after obtaining occupancy certificate, still the builder did not hand over possession to the respective complainants from the share of his flats or premises as per the development agreement dated 30/08/2006, supra. On the contrary, as per the statement of the builder recorded in the proceedings before the High Court, it is revealed that except for the case of complainant-President Enterprises, the builder was not willing to consider the case of handing over possession to complainant-Mr.Pravin Gada and Mr.Jagdish Shah, H.U.F. and Mr.Bipin Shah, H.U.F. Said statement is incorporated in the letter dated 9th April 2010 addressed to M/s.M.P. Vashi & Associates by Navdeep Vora & Associates in respect of Criminal Writ Petition Nos.3250 to 3252 of 2009 pending before the Honble High Court and the relevant portion there from reads as under :-
On 31st March, 2010, when the matter was again listed before His Lordship Honble Mr.Justice Shri Kanade, your Mr.Vashi informed the Honble Court that owing to change in design the areas had increased, therefore for the area in excess over the original area, your Client were expecting consideration at additional cost from our Clients. Your Mr.Vashi also informed the Honble Court that your Clients were willing to provide a Flat to one our Clients viz. M/s.President Enterprises as per the rate as originally agreed and as regards other two petitioners, your Clients were expecting some additional payments for the excess area. Accordingly your Mr.Vashi made a statement to the Honble Court that he would revert on 5th April 2010 on the quantum and basis of additional cost after consulting the Petitioners.
14. As far as termination of the agreement as alleged by the builder per communication dated 06/02/2002 is concerned, the relevant portion there from reads as under :-
....In case if you dont pay the outstanding dues along with interest thereon as mentioned in our demand letter dated 15 Sept. 2001 followed by reminders upto 15 Feb.2002, your Booking allotment will stands automatically cancelled and all the amounts paid by you stand forfeited. We further reserve our right to claim our losses from you which please note.
15. Referring to the minutes of the meeting dated 10/06/2001, supra and particularly, Para 3 (l), supra, it may be seen that any installment called by the builder was necessarily to accompany a progress report issued by the Committee Members signed by at least two members. The demands referred in the alleged final notice/termination letter dated 06/02/2002 did not accompany any such report of the progress of the work.
Therefore, builder cannot brand the complainants covered by the termination letter dated 06/02/2002 as defaulters and no action threatening termination or termination for committing the default naturally could be materialised. Thus, said action (of alleged termination) on the part of the builder being arbitrary, and did not end with the consequence of termination, supra; the submissions of the builder based upon such termination either of cause of action or limitation or sustaining relationship as a consumer and service provider between the parties inter se or maintainability of the consumer complaints, are devoid of any substance.
16. Since, we find the agreements with each of the complainants are still alive and builder since failed to discharge their obligation to hand over the flats to the complainants, cause of action as against the builder is continuous and the complaints cannot be termed as time-barred. The builder tried to refer to the correspondence and alleged termination letter dated 06/02/2002 to submit that the consumer complaints are barred by limitation. As earlier pointed out, we find no substance in their such submission.
17. As far as aspect of pecuniary jurisdiction of each complaint is concerned, referring to the agreed price and the compensation claimed, they certainly do not exceed the jurisdiction of this Commission considering the amount of compensation claimed which is to be taken into consideration for the purpose of determining the pecuniary jurisdiction. In view of provisions of Section 17 (1)(a)(i) of the Consumer Protection Act, 1986, valuation for the purpose of pecuniary jurisdiction based upon the agreed price of the flat as well as compensation claimed are to be added together and thus, the consumer complaints are well within the pecuniary jurisdiction of this Commission.
Therefore, objections tried to be raised on this issue by the builder are devoid of any substance.
18. In view of development agreement between the builder and second builder dated 30/08/2006 wherein the builder agreed to take care of the flat buyers including the complainants and for that purposes only flats mentioned therein were given to the builder to get discharge his obligation towards those flat purchasers who had agreements with him i.e. the builder. Therefore, it cannot be said to be a case of frustration of contract and besides that the Doctrine of Frustration embodied in the section of the Indian Contract Act could not get altered since, builder cannot not take advantage of his own wrong. It is tried to be argued that in the newly constructed building, only two flats are constructed on each floor, which are of larger size than the area of the flat agreed to be sold to each complainants. Certainly, it is for the builder to take necessary care to make available certain area flat which are agreed to be made available to each one of the complainants. If at all some issue arises about the excess area to be given to the complainants, then it could be resolved by way of mutual settlement between the parties either on reaching agreement to receive the enhanced area for a suitable consideration or otherwise. But as far as the consumer disputes before us, we find that this issue is quite irrelevant.
19. We further observe that each complainant entered into agreement to purchase the flats from the builder in his future project. The builder did confirm on one or more occasions even though he changed the initial plan from Arenja Apartment to Sea-Scape, that each flat purchaser including the complainants would be given same area of flat. Of course, the number and flat on which they are situated may vary, but certainly, the character that those flats as sea facing flats remains undisturbed. The builder also changed his plans as reflected in the Minutes of the Meeting dated 10/06/2001, supra, to construct only A Tower and to get accommodate the flat purchasers from B & C wing in A Towers.
This arrangement was also further changed in view of development agreement dated 30/08/2006, supra, and therefore, the builder was under
obligation to make available same area flats to the respective complainants from the area which was given to his share as per the development agreement. Builder since failed to discharge his such obligation, deficiency in service on his part within meaning of Consumer Protection Act, 1986, is well established.
20. The builder is expected to hand over respective flats/premises to remove the deficiency in service to each one of the complainants. However, if for the some or other reason, the flats could not be handed over, then in those circumstances, we find it proper to alternatively grant relief of compensation. In those circumstances, since, each one of the complainants are deprived of the premises and if they are required to acquire the premises of the same area in another project in the same vicinity, they will have to pay a current market price for the same. From this point of view, each one of the complainants claimed compensation. We find it proper and just to consider the aspect not only on the basis of what the each complainants assessment of a market price but also try to ascertain prevailing market price considering the prices indicated for the locality published in the Saturday Edition of Times of India, Issue dated 16/12/2013. We find a due notice of the same can be taken. At CBD, Belapur, capital value per sq. f.t. are mentioned within range from `7800/- to `9800/- under the caption Average Residential Apartment Prices in the Times Property Supplement at internal page-4. Taking average of said range at `9,000/-, 760 sq.ft.
carpet area (usable area) price would come to `68,48,000/- which would cover the case of complainant-Mr.Pravin Gada and Mr.Jagdish Shah & Mr.Bipin Shah, HUF; while price for carpet area of 990 sq.ft. (usable area) accordingly would come to `89,10,000/-. Assessment of each complainant i.e. `70,00,000/- for 760 sq.ft. carpet area flat and `91,82,250/- for 990 carpet area flat, thus, would resemble with the above referred assessment based upon rate of `9,000/- per sq.ft. However, while granting compensation in lieu of the flat, it would be proper and just to adjust from it the balance of consideration remain to be paid by each complainant to the builder. Compensation awarded by way of alternate relief is, thus, calculated accordingly.
21. As far as Mr.Jagdish Shah and Mr.Bipin Shah, H.U.F., the complainants from complaint No.82/2010 and complainant-M/s.President Enterprises from complaint No.83/2010 are concerned, there is no dispute about fact that they respectively paid consideration of `4,70,000/- and `4,81,000/-. This also finds affirmation from the receipts on record and also from the statement of accounts of the builder for the accounting year 2005. As far as complainant-Mr.Pravind Gada (in complaint No.78/2010) is concerned, except `1 Lakh in cash paid in or about 03/08/1996 is disputed. Said payment was made along with another payment of `1 Lakh in the form of two cheques each of `50,000/- and witnessed by Receipt Nos.247 & 248 dated 03/08/1996.
However, in a subsequent letter of the complainant to builder written immediately after these payments and reply received from the builder, wherein the builder did not dispute or deny receipt of cash payment, thus, corroborated the case of complainant-Mr.Pravin Gada that he had made payment of `1 Lakh in cash. Considering the overall circumstances, we find that the complainant-Mr.Pravin Gada has also made total payment of `4,02,000/-. Needless to say balance of consideration work out on the basis, supra, need to be paid by the complainant to the builder at the time of receiving possession of their respective flats.
22. Since from the year 1996 for almost over 16 years complainants are facing trauma as to when the project would start and get it completed and when they would get the flats. They also had to enter into several lis fought at different level including the High Court. Under the circumstances, we find that it would be just and proper if each complainant is awarded a compensation of `50,000/- for mental torture, physical inconvenience and sufferings they undergone, etc. We hold accordingly. Similarly, we find it proper to award cost of `25,000/- to each complainant. Of course, the builder has to bear his own costs.
23. As far as second builder is concerned, there is no privity of contract between the complainants and second builder. Even when as per development agreement dated 30/08/2006 the builder and second builder had taken care to safeguard the interest of the flat purchasers of the builder and as pleaded by second builder, it is the builder who has accepted all the responsibility in respect of his agreements with those flat purchasers. Under the circumstances, we find that the consumer complaints as against second builder fail.
24. For the reasons stated above, we hold accordingly and pass the following order :-
-:
ORDER :-
1.
Complaints Nos.78/2010, 82/2010 & 83/2010 are partly allowed as against opponent No.1/builder-Arenja Industries Ltd.
In Complaint No.78/2010
(i) Opponent No.1/builder-Arenja Industries Limited, from the flats given to share as per development agreement dated 30/08/2006, do hand over to the complainant possession of the flat (sea facing) admeasuring 1085 sq.ft. super-built up area equivalent to 760 sq.ft. carpet area in a building complex known as Sea-Scape on receiving balance consideration of `5,48,000/-. Balance consideration be paid at the time of handing over possession to opponent No.1-builder by the complainant with due intimation in writing received from the builder of handing over the possession, within a period of 60 days from the date of this order.
ALTERNATIVELY Opponent No.1/builder-Arenja Industries Limited do pay a compensation of `62,92,000/- to the complainant towards deficiency in service by not handing over the flat. This amount be paid within a period of 60 days from today and failing which it shall carry interest @ 18% p.a. till its realization.
(ii) Opponent No.1/builder-Arenja Industries Limited to pay `50,000/- as compensation to the complainant for mental torture, physical inconvenience, etc.
(iii) Opponent Nos.1&2 to bear their own costs and opponent No.1/builder-Arenja Industries Limited to pay cost of `25,000/-
to the complainant.
In Complaint No.82/2010
(i) Opponent No.1/builder-Arenja Industries Limited, from the flats given to share as per development agreement dated 30/08/2006, do hand over to the complainants possession of the flat (sea facing) admeasuring 1085 sq.ft. super-built up area equivalent to 760 sq.ft. carpet area in a building complex known as Sea-Scape on receiving balance consideration of `5,30,000/-. Balance consideration be paid at the time of handing over possession to opponent No.1-builder by the complainants with due intimation in writing received from the builder of handing over the possession, within a period of 60 days from the date of this order.
ALTERNATIVELY Opponent No.1/builder-Arenja Industries Limited do pay a compensation of `63,10,000/- to the complainants towards deficiency in service by not handing over the flat. This amount be paid within a period of 60 days from today and failing which it shall carry interest @ 18% p.a. till its realization.
(ii) Opponent No.1/builder-Arenja Industries Limited to pay `50,000/- as compensation to the complainants for mental torture, physical inconvenience, etc.
(iii) Opponent Nos.1&2 to bear their own costs and opponent No.1/builder-Arenja Industries Limited to pay cost of `25,000/-
to the complainants.
In Complaint No.83/2010
(i) Opponent No.1/builder-Arenja Industries Limited, from the flats given to share as per development agreement dated 30/08/2006, do hand over to the complainant possession of the flat (sea facing) admeasuring 1415 sq.ft. super-built up area equivalent to 990 sq.ft. carpet area in a building complex known as Sea-Scape on receiving balance consideration of `7,49,000/-. Balance consideration be paid at the time of handing over possession to opponent No.1-builder by the complainant with due intimation in writing received from the builder of handing over the possession, within a period of 60 days from the date of this order. ALTERNATIVELY Opponent No.1/builder-Arenja Industries Limited do pay a compensation of `81,61,000/- to the complainant towards deficiency in service by not handing over the flat. This amount be paid within a period of 60 days from today and failing which it shall carry interest @ 18% p.a. till its realization.
(ii) Opponent No.1/builder-Arenja Industries Limited to pay `50,000/- as compensation to the complainant for mental torture, physical inconvenience, etc.
(iii) Opponent Nos.1&2 to bear their own costs and opponent No.1/builder-Arenja Industries Limited to pay cost of `25,000/-
to the complainant.
2. Complaints Nos.78/2010, 82/2010 & 83/2010 stands dismissed as against opponent No.2-Akshar Construction.
3. Copies of the order be furnished to the parties.
Pronounced Dated 26th February 2013.
[HON'BLE MR. S.R. Khanzode] PRESIDING MEMBER [HON'BLE MR. Narendra Kawde] MEMBER dd