National Consumer Disputes Redressal
M/S Ankita Developers vs Mr Pramod Ghate on 20 September, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVIEW APPLICATION NO. 274 OF 2024 IN
RP/2461/2019 1. M/S ANKITA DEVELOPERS SURVEY NO. 9, HISSA NO. 3, NEAR KAMLAKAR NAGAR, AMBERNATH, THANE THANE MAHARASHTRA ...........Appellants(s) Versus 1. MR PRAMOD GHATE OT SECTION NEAR MARATHI SCHOOL NO. 14, ULHASNAGAR THANE MAHARASHTRA 2. SHANKAR N. ROOPCHANDANI SURVEY NO. 9, HISSA NO. 3, NEAR KAMLAKAR NAGAR, AMBERNATH, THANE THANE MAHARASHTRA 3. RITU D WADHWA SHANKAR N. ROOPCHANDANI, RITU D WADHWA, SURVEY NO. 9, HISSA NO. 3, NEAR KAMLAKAR NAGAR, AMBERNATH, THANE THANE MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE KARUNA NAND BAJPAYEE,PRESIDING MEMBER
FOR THE APPELLANT :
Dated : 20 September 2024 ORDER
ORDER
(IN CHAMBER) R.A. No.274 of 2024 in R.P. No. 2461 of 2019
1. Revision Petition No.2461 of 2019 was decided vide this Commission's Order dated 20.06.2024. Application no. 274 of 2024 has been filed on behalf of the applicant / respondent to seek its review.
2. Application no.274 of 2024 seeks the review of the Order dated 20.06.2024 passed by this Bench, which may be quoted herein below:
Dated : 20.06.2024 ORDER
1. This revision petition belongs to the year 2019. Notice was served on the respondents dasti on 04.10.2023 and proof thereof has been filed.
2. Case called out. Learned counsel for the petitioner is present. None appears for the respondents, neither any counsel nor authorized representative. There is no adjournment letter on their behalf as well. Thus, there is no good reason to prorogue the matter further.
3. This revision petition has been filed in challenge to the Order dated 30.07.2019 in Appeal No. 184 of 2014 of the State Commission Maharashtra arising out of Order dated 28.01.2014 of the District Commission in Complaint no. 92 of 2008.
4. Heard the learned counsel appearing for the petitioner and have perused the record including inter alia the Order dated 28.01.2014 of the District Commission and the impugned Order dated 30.07.2019 of the State Commission.
5. It appears that a complaint was filed before the District Commission with the allegations of unfair trade practice and deficiency of service.
The facts of the case, in brief compass, are that the complainant / petitioner had booked a bunglow bearing No.2 consisting of ground and first floor situated at Shree Sairam Nagar, Survey No.9, Hissa No.3, village Kohoj, Ambernath within the limits of Ambernath Municipal Council. Complainant had paid booking amount in the sum of Rs.11,000/- on 01/10/2007 to book the said bunglow for total consideration of Rs.14,81,000/-. Complainant further paid sums of Rs.75,000/- and Rs.50,000/- (total sum of Rs.1,25,000/-) by way of cheques to the opposite parties / respondents. It was grievance of complainant / petitioner that opposite parties / respondents did not enter into any agreement of sale nor provided necessary documents to the complainant / petitioner to enable him to obtain loan from the bank though he by his own efforts approached S.B.I. to get the sanction for loan in the sum of Rs.13,00,000/- and handed over copy of loan sanction letter to opposite parties / respondents on 20/12/2007. Complainant vide his communication dated 27.12.2007 informed the opposite parties / respondents that he was ready and willing to pay balance consideration and requested opposite parties / respondents for fixing the date of registration of sale agreements. Despite this opposite parties / respondents had by letter dated 18/12/2007 communicated that booking has been cancelled in contravention of provisions of the Maharashtra Ownership of Flats Act, 1963 in particular section 4. Allegation was that the act of the opposite parties / respondents constitutes deficiency in service and unfair trade practice.
6. Being aggrieved the complaint was filed before the District Commission which after proceeding in accordance with law allowed the complaint partly. The concluding part of the Order granting relief maybe quoted hereinbelow:-
"2) Opponent has even after accepting more than 9% of the amount of the bungalow not executed agreement, not given requisite papers for obtaining Home Loan, similarly by cancellation of transaction with the complainant in respect of purchase of the said bungalow it is declared that opponent has failed to give facilities and service to the complainant.
3) The opponent has agreed to sale bungalow at the cost of Rs. 14,81,000/- out of which 20% amount comes to Rs. 2,96,000/- minus amount of Rs. 1,36,000/- already paid to the opponent. The balance of Rs. 1,60,200/- complainant should pay to the opponent within 45 days of this order. The Opponent should accept it. And after receipt of it within 15 days the Opponent as per provisions of MOFA Act extend all facilities and services mentioned in the said format registered agreement be executed by the opponent with the complainant and on the same day all the requisite papers required for obtaining Home Loan should be given to the complainant.
4) As per Clause No. 3 above after registration of the agreement is completed and after getting all papers within 30 days 20% of the cost of the Bungalow minus balance amount the complainant should pay to the opponent. The opponent should accept it at the same time. After accepting the said amount within next 15 days agreed all facilities and services be given to the complainant. If the opponent does not comply with this order within stipulated time the opponent should pay to the complainant Rs. 1,000/- (In words Rupees One Thousand only) per day till the compliance of this orders.
5) Towards the mental agony and litigation expenses incurred by the complainant the opponent should pay to the complainant Rs.1,00,000/- (In words One lakhs only) within 3 months from the date of this order. Thereafter if these orders are not complied within the stipulated period then the entire amount with 9% interest should be paid by the opponent to the complainant till compliance of these orders." (As per the translated copy furnished by the petitioner)
7. It appears that the opposite party had filed the appeal before the State Commission against the Order passed by the District Commission and after discussing the whole matter in detail the appeal was partly allowed and the impugned Order was modified. For better facilitation the impugned Order itself may be quoted which reads as under:-
"[1] Since this was part heard appeal it is listed before us pursuant to order dated 22/07/2019 and 23/07/2019. Hon'ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.993 of 2018 decided on 05/03/2019 directed the State Commission to hear and decide the appeal within three months w.e.f. 05/03/2019. Therefore, it was heard early on 22/07/2019 at earliest possible opportunity to hear the parties. Today also we hear rest of submissions. The brief facts are that the complainant (respondent herein) had booked a bunglow No.2 consisting of ground and first floor situated at Shree Sairam Nagar, Survey No.9, Hissa No.3, village Kohoj, Ambernath within the limits of Ambernath Municipal Council. Complainant had paid booking amount in the sum of Rs.11,000/- on 01/10/2007 to book the said bunglow for total consideration of Rs.14,81,000/-. It is further case of the complainant that on demand from the opponent (appellant herein) sum of Rs.75,000/- and Rs.50,000/- (total sum of Rs.1,25,000/-) was also paid by way of cheques to opponent. It was grievance of complainant that opponent did not enter into any agreement of sale nor provided necessary documents to the complainant to enable the complainant to obtain loan from the bank though complainant had by his own efforts approached S.B.I. and to get the sanction for loan in the sum of Rs.13,00,000/- and handed over copy of loan sanction letter to opponent on 20/12/2007. Despite this opponent had by letter dated 18/12/2007 communicated that booking has been cancelled. Thus, contravened provisions of the Maharashtra Ownership of Flats Act, 1963 in particular section 4. Thus, it is the case of complainant that opponent indulged into deficiency in service and unfair trade practice and did not comply with their part of performance of contract so as to execute agreement of sale in favour of complainant. Learned Forum below after considering the pleadings and affidavit in evidence had allowed the complaint partly by directing the opponent to execute an agreement pursuant to the provisions of Maharashtra Ownership of Flats Act, 1963 and also to provide documents to the complainant to enable the complainant to obtain home loan and to complete the transaction and then to handover possession of bunglow with all amenities and facilities as promised. Further, it is ordered if opponent fail to obey the order imposed penalty @Rs.1,000/- per day payable to the complainant and Rs.1,00,000/- towards compensation for mental anguish, harassment and costs of litigation. It appears that in the revision petition Hon'ble National Commission expedited hearing of appeal.
[2] It appears that opponent is M/s.Ankita Developers a partnership firm consisting of opponent Nos.2 and 3 Shankar M.Rupchandani and Neetu D. Wadhwa who had accepted booking sum under written receipt bearing No.55 and 56 in the sum of Rs.75,000/- paid on 21/10/2007 and Rs.50,000/- paid on 06/11/2007 by the complainant. M/s.Ankita Developers by communication dated 27/11/2007 alleged that complainant had not taken necessary steps for housing loan purpose and did not arrange for stamp duty and registration charges and not paid the booking amount. Thus, assuming that complainant is not interested to complete his part of the contract it appears that by communication dated 03/12/2007 complainant demanded plan approval copy (blue print) and stamp duty of registration to enable him to approach the bank to obtain home loan so that entire consideration can be paid to the opponent He had also approached S.B.I. on 20/12/2007 which had sanctioned home loan in the sum of Rs.13,00,000/- on 20/12/2007. On 18/12/2007 opponent communicated that it is not satisfied with the deals and booking will be cancelled on the ground that complainant was not ready to give processing fees cheque for housing loan application to the bank employee and that complainant's job is not permanent and he was on probation period. Complainant by communication dated 27/12/2007 made it clear that he was ready and willing to pay balance consideration and requested for stamp duty and registration of sale agreement to be fixed on particular date so as to enter into an agreement of sale. It is alleged on behalf of complainant that he had already advanced sum of Rs.1,36,000/- to the opponent and was ready and willing to pay the balance consideration upon availing of the home loan from the bank concerned. Opponent on the other hand contended that despite continuous demand complainant had not fully paid the amount apart from sum of Rs.1,36,000/- and therefore complainant shall get the refund thereof.
[3] Learned Advocate for appellant invited our attention to the completion certificate / occupancy certificate issued by Ambernath Municipal Council dated 17/01/2008 which mentions name of Janabai Kashinath Jadhav through Smt. Nitu Dwarkadas Wadhwa and other 2 through Yashwant Sathe, Architect indicating that there was conditional grant of occupancy permission for houses consisting of ground plus first floor and 116 galas, 232 rooms, 8 galas, 24 rooms, 25 galas, 16 rooms, but do not indicate as to whether it was an occupancy permission /completion certificate as well for bunglow No.2 which complainant had booked with opponent.
[4] In our view it is settled legal position that when a flat or bunglow is purchased or sought to be purchased by payment of installments and home loan is to be obtained for to finance the transaction the builder/promoter /developer concerned must co-operate by providing copy of sanctioned plan to the complainant with copy of commencement certificate so that home loan can be facilitated by the flat/bunglow purchaser concerned from the bank when a flat purchaser/bunglow purchaser is ready and willing to pay the balance consideration. The corresponding liability of the builder/ promoter/developer is to construct the building in accordance with sanctioned plan, obtain certificate of architect concerned that flat/building to be sold is complete and ready in all respects so that occupancy permission is granted by the local authority or municipal authority concerned to put the purchaser in actual, physical and lawful occupation or possession of the same. Mere communications without taking steps as contemplated under the provisions of Maharashtra Ownership of Flats Act, 1963 cannot help the promoter/builder/developer to avoid the contractual and statutory obligation that has been created upon acceptance of part consideration from the prospective flat/ bunglow purchaser. In such case, it is continuing cause of action in favour of the flat/bunglow purchaser while insisting upon completion of the building in accordance with sanctioned plan and occupancy permission while offering balance consideration required to be paid so as to complete the sale transaction.
[5] In the present case, it reveals that builder/developer/promoter has inducted third party into occupation of bunglow No.2 which was agreed to be sold in favour of complainant and indulged into profiteering. According to the learned Advocate for respondent bunglow is sold for Rs.22,50,000/- by the appellant/opponent instead of selling it to the complainant at agreed price. According to him complainant he was all along ready and willing to pay the balance consideration which was payable under the agreement to sell so as to complete the transaction in respect of bunglow to be purchased. In these facts and circumstances of the case we find that appellant has indulged into not only deficiency in service but also unfair trade practice by disposing of the flat which was agreed to be sold in favour of the complainant obtaining unlawfully profits from the third party. Communications therefore entered into by the builder/ promoter/ developer with the complainant were intended merely to avoid the obligation flowing from the provisions of the Maharashtra Ownership of Flats Act, 1963. In the facts and circumstances therefore we declare that the appellant/opponent has indulged in deficiency in service and unfair trade practice in the matter of non completion of transaction of sale in favour of complainant in respect of bunglow No.2 which is the subject matter of the complaint. We therefore pass following order-
ORDER 1] Appeal is partly allowed. Impugned order is modified as under-Complainant shall pay balance consideration so as to make entire payment of Rs.14,81,000/- (Rupees Fourteen Lakhs Eighty One Thousand only) deducting the amount already paid to the opponent. Upon receiving payment appellant/opponent will execute conveyance in respect of identical bunglow in the same building project in favour of the complainant.
In the event if it is not possible for the builder/ promoter/ developer to execute conveyance for any valid and legal reason in favour of the complainant then the amount of Rs.1,36,000/- (Rupees One Lakh Thirty Six Thousand only) be refunded alongwith interest @12% p.a. w.e.f. the date of payment until realization.
2] We also confirm the amount of compensation for mental anguish and litigation costs in the sum of Rs.1,00,000/- (Rupees One lakh only) within three months from the date of impugned order i.e. 28/01/2014 else amount of Rs.1,00,000/- shall carry interest @9% p.a. till realization.
3] No order as to costs of appeal.
Certified copy of this order be supplied to the parties."
8. The submission made by learned counsel is very precise and focussed. It has been submitted that the bunglow in question which is subject matter of the complaint was not given to the complainant / petitioner because if unfair trade practice indulged into by the respondents and clear-cut finding has been recorded by the State Commission that a third party was inducted into occupation of the same bunglow which was to be sold in favour of the complainant for the dishonest motive of profiteering. The relief as has been granted by the State Commission is that upon receiving the balance payment the opposite party will execute conveyance in respect of "identical bunglow in the same building project" in favour of the complainant. While granting this relief the State Commission has also added that if it is not possible for the builder / promoter/ developer to execute the conveyance for any valid or legal reason in favour of the complainant then the principal amount of Rs.1,36,000/- paid by the complainant shall be refunded along with interest at the rate of 12%. Contention is that principal grievance of the complainant emanates basically from the first relief whereby "identical bunglow in the same building project" was directed to be given to the complainant which was a highly circumscribed nature of relief having very strictly confined periphery and in fact such kind of highly restricted and circumscribed kind of relief gave a handle to the respondents / opposite parties not to comply and execute this relief on the pretence that an identical bunglow was not available in the "same building project." It has also been emphasized by learned counsel that the alternate relief of refund of the principal amount with some interest is not at all equal to the first relief of giving the bunglow and the amount of compensation that was granted was also far less than just or commensurate with the grievance of the complainant. Submission of learned counsel is that principal amount along with interest and the compensation that has been granted altogether are no match to the bunglow which ought to have been given to the complainant or its present price and which the respondents / opposite parties dishonestly refused to give for unfair motives of profiteering. Contention is that that because of the hike of the price structure the alternate relief of refund will never enable the aggrieved complainant to purchase a similar kind of property which it had a right to have and for which it had duly paid and which was duly allotted to him by the opposite parties. It has been submitted that even the respondents / opposite parties is very well aware of the afore-said realistic situation between the mismatch of the actual market price of the bunglow now and the extenuated amount of alternate relief and too obviously for that reason the opposite party is not at all inclined to give identical bunglow to the complainant. Submission is that ends of justice will be met with if the relief granted by the State Commission to provide an identical bunglow in the same building project be reasonably modified to the extent that instead of confining the relief to the bunglow being given "in the same building project" the scope of this relief be expanded and the respondents / opposite parties be directed to provide an identical bunglow "in the same vicinity or in similar locality in case the identical bunglow is not available in the same building project." Learned counsel has also submitted that the identical bunglows are available in the vicinity and also in similar locality which are being constructed by the opposite parties / respondents.
9. Perused the record in the light of the submissions made learned counsel. The perusal of the Orders passed by the District Commission as well as that of the State Commission does not leave any doubt that the opposite parties / respondents have been guilty of unfair trade practice and of deficiency of service. It is also not difficult to see that the relief that has been granted by the State Commission for providing an identical bunglow in the same building project is much too circumscribed a relief and for pragmatic reasons which need not be elaborated much, this relief ought to have been more flexible and open so that the same could have been better executed. In this view of the matter it is deemed appropriate and just and in keeping with the norms of conscionable consumer justice that the Order passed by the State Commission be modified. It is, therefore, deemed proper to modify the same to the extent that an identical bunglow shall now be required to be provided to the complainant not necessarily in the same building project but the same may be provided also in the same vicinity or in a similar locality.
10. In the wake of the afore-said modification there is no justification or need for the alternate relief of the refund of the principal amount with interest and thus the alternate relief of the refund of the principal amount of Rs.1,36,000/- along with interest at the rate of 12% stands struck off. The Order passed by the State Commission stands modified accordingly.
11. The Registry is requested to send a copy each of this Order to all parties in the petition and to the learned counsel for the petitioner. The stenographer is requested to upload this Order on the website of this Commission immediately.
3. Entire record, including inter alia the Order dated 28.01.2014 passed by the District Commission, impugned Order dated 30.07.2019 of the State Commission, Order dated 20.06.2024 of this Commission as well as the review application no. 274 of 2024, have been perused.
4. For all intent and purposes, the object of the applicant / respondent no. 1 appears to be to persuade the Bench to re-appreciate the facts differently and take a different view of the matter. The grounds taken in the review application fall more in the realm of appreciation of the facts and circumstances of the matter. To enter into reappraisal of the facts and re-appreciate the record and take a different view other than the earlier one that has already been taken is far outside the scope and ambit of powers of 'review'.
5. The law regarding the scope and ambit of 'review' (as provided under The Consumer Protection Act 1986 or 2019) is too well settled to be elaborated upon. The canvas and the confines of its scope are not too wide. Every difference of opinion regarding an issue does not emanate out of 'error apparent on the face of record' nor every subjective difference of opinion in the process of deducing inferences does.
6. The grounds taken in the review application contain nothing which may persuade this Bench to take a different view of the matter. No such reason is perceptible. Certainly there is no 'error apparent on the face of record' found which may deserve correction or amendment in the Order.
7. The Order dated 20.06.2024 is self-contained and self-speaking. No such 'error apparent on the face of record' is visible which may provide reason to review the matter.
The application is dismissed. The Order dated 20.06.2024 stands as it stood.
8. The Registry is requested to send a copy each of this Order to the parties within three days. The stenographer is requested to upload this Order on the website of this Commission immediately.
..................................................J KARUNA NAND BAJPAYEE PRESIDING MEMBER