State Consumer Disputes Redressal Commission
Mrs Sunita Maruti Karkhile vs M/S Dev Enterprises on 9 February, 2024
1 (CC/16/1006)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO.CC/16/1006
1.Mrs.Sunita Maruti Karkhile
2.Mr.Maruti Pandurang Karkhile
Both R/at-
Jai Laxmisagar Co-Op.
Housing Society Limited
A/11, 4th Floor,
Shiv Mandir Road,
Ambarnath (E ),
Mumbai. Complainants
Versus
1. M/s.Dev Enterprises
A Partnership Firm and its
Partners
2. Mr.Madan Kalambkar
3. Mrs.Kanchan Kalambkar
4. Mr.Hemchand Mistry
5. Mr.Pramod Kalambkar
6. Mr.Ishan Sharma
All having office address-
Shree Siddhivinayak APT,
Gr. Floor, Plot No.C-2/1
Sector 23, Seawood,
Dharave Nerul,
Navi Mumbai 400 706. Opponents
BEFORE :
Mr.Mukesh V. Sharma, Presiding Member
Dr. Satish A. Munde, Member
PRESENT:
For the Advocate Rahul R. Pandit
Complainants(s): a/w Premanand K. Torane
2 (CC/16/1006)
For the
Opponent(s): None present
JUDGMENT
Dated 9th February, 2024 Per: Dr. Satish A. Munde, Hon'ble Member 1] The Complainants has filed this Consumer Complaint u/s 12 of the Consumer Protection Act, 1986 (we think this is a typographical mistake and we treat it u/s 17 of the Consumer Protection Act, 1986.
2] The brief facts of the Consumer Complaint is as under-
That the Opponent No. 1 is a Partnership Firm incorporated under the Indian Partnership Act, 1932 of which Opponent Nos. 2 to 6 are the Partners of the said Partnership Firm. The Complainants has booked flat bearing number 1903, admeasuring built up/ carpet area 1352 sq.ft, on the 19 th floor of the proposed project known as 'Dev Saphire' admeasuring 2000 sq.mtrs, situated at Plot No.80, Sector 45, Kharghar, Navi Mumbai for agreed consideration of Rs.72,50,000/- including development charges, floor rise and parking. The Complainants entered into agreement in the form of letter of allotment dated 20th June, 2014 for purchasing the said residential flat. That out of the total consideration amount the Complainants has paid sum of Rs.15,00,000/- against the said flat. The Opponents failed to hand over vacant, legal and peaceful possession to the Complainants till date inspite of repeated requests made by the 3 (CC/16/1006) Complainants through various request letters. The Complainants issued notice dated 13th August, 2016 through his Advocate for the possession of the said flat but it was not replied by the Opponents. Hence, the Complainants constrained to file this complaint.
3] The complaint is admitted. Notices were issued to the Opponents. The Opponent were duly served but they failed to appear before this Commission. Hence, the complaint is proceeded ex-parte against the Opponents. The Complainants has filed affidavit of evidence and written notes of argument.
4] Considering the complaint, affidavit of evidence and argument of the Complainants, following points arose for our determination and we have recorded our findings for the reasons given below-
Sr.No. Points Findings
1 Whether the Complainants is a In the affirmative
consumer of the Opponents?
2 Whether the Complainants has In the affirmative
established deficiency in service
and unfair trade practice on the
part of the Opponents as
contemplated u/s 2(g) and 2(r ) of
the Consumer Protection Act,
1986?
4 (CC/16/1006)
3 Whether the Complainants is In the affirmative
entitled to the compensation?
4 What order ? As per final order
:-REASONS:-
As to the point No.1-
5] The Complainants had booked the said flat with the Opponents for total consideration of Rs.72,50,000/-, out of which he has paid Rs.15,00,000/- to the Opponents by various cheques. The particulars are as follows-
Sr.No. Cheque No. and Date Bank Amount
1 404101, 05/06/2014 HDFC Bank Rs.5,00,000/-
Ltd.
2 000026, 09/06/2014 HDFC Bank Rs.5,00,000/-
Ltd.
3 404102, 11/06/2014 HDFC Bank Rs.2,50,000/-
Ltd.
4 000027, 11/06/2014 HDFC Bank Rs.2,50,000/-
Ltd.
Complainants have produced true copies of Bank Passbook of the Complainants. Further, the Complainants has produced the Allotment Letter dated 20th June, 2014 (at page number C-24 to C-31). The Opponents are duly served but they failed to appear before this Commission. Hence, the complaint is proceeded exparte. Hence, the above referred documents are presumed 5 (CC/16/1006) that they are true and correct. Hence, it is sufficient evidence to draw the conclusion that the Complainants is a consumer of the Opponents as per section 2(1)(d) of the Consumer Protection Act, 1986. Therefore, we declare answer to the point No.1 in the affirmative.
As to the point No. 2 -
6] Heard the Advocate for the Complainants. Perused the document produced by the Complainants on record i.e. the Allotment Letter dated 20th June, 2014 (at page number C-24 to C-31) and the true copies of Bank Passbook of the Complainants towards the payment for part consideration of the said flat to the Opponents. Further, it is contended by the Complainants that the possession of the said flat was to be given after obtaining Occupancy Certificate from the concerned Authority. The Opponents also orally agreed and promised to the Complainants that the Occupancy Certificate shall be obtained within 1 year from the date of issuing of Allotment Letter i.e. 20th June, 2014 and the possession of the said flat will be handed over to the Complainants after 1 year from obtaining the Occupancy Certificate from the concerned Authority (CIDCO) i.e. total period of 2 years but till date no possession of the said flat is handed over to the Complainants by the Opponents. The Consumer Complaint is proceeded ex-parte against the Opponents. The affidavit of evidence filed by the Complainants remained unopposed. Furthermore as per Section 4 of the Maharashtra Ownership of Flats Act, 1963, it is the duty cast upon the Builder/Developer/Promoter to enter into the written Agreement 6 (CC/16/1006) for Sale on receipt of advance amount not more than 20% of the sale amount. In the present case, the Complainants has proved that he has paid more than 20% of the consideration amount of the said flat to the Opponents. The Opponents did not execute the Agreement to Sell for the said flat despite having paid substantial consideration and having made request from time to time by the Complainants. The Opponents failed to abide by the promises and also statutory obligations under the Maharashtra Ownership Flats Act, 1963. So it is proved that the Opponents have failed to hand over possession of the said flat to the Complainants as agreed by the Opponents and thereby the Opponents have caused deficiency of service and unfair trade practice to the Complainants and therefore Point No. 2 is answered in the affirmative.
As to the Point No.- 37] Perused the record and heard arguments advanced before us. It is contended by the Complainants that the Opponents agreed to deliver the possession of the said flat within 2 years from the date of issuance of the Allotment Letter i.e. 20th June, 2014. Inspite of the notice issued on 13th August, 2016 to the Opponents by the Complainants. The Opponents failed to comply or reply the same. Therefore, the Complainants are entitled for the compensation for delay caused by the Opponents in handing over the possession of the said flat till date. The Complainants are deprived of their dream house and suffered mental and physical harassment and financial loss at the hands of Opponents for years together and was compelled to run from 7 (CC/16/1006) pillar to post. The Opponents have used hard earned money of the Complainants, in the form of consideration, for years together. Contentions raised by the Complainants, proved by the documentary evidence in the form of copies of Passbook of the Complainants and the Letter of Allotment dated 20th June, 2014, remained unchallenged. Therefore, the Complainants are entitled for compensation for delay caused by the Opponents for handing over possession of the flat to the Complainants. Hence, we answer point No.3 in the affirmative.
As to the point No.4- 8] After considering the reasons mentioned herein, we pass the following order-
ORDER [1] The complaint is partly allowed.
[2] The Complainants are directed to pay the balance amount of consideration in the sum of Rs.57,50,000/- to the Opponents and also directed to pay stamp-duty, registration charges and the taxes levied upon them to the Authorities, if not paid earlier. After payment, within one month, the Opponents are directed to execute Sale Deed in favour of the Complainants and to handover vacant, legal and peaceful possession of the flat bearing No.1903, admeasuring built up/ carpet area 1352 sq.ft, situated on the 19th Floor of the 8 (CC/16/1006) proposed project known as 'Dev Saphire' admeasuring 2000 sq.mtrs, situated at Plot No.80, Sector 45, Kharghar, Navi Mumbai to the Complainants.
[3] In the alternative, at the option of the Complainants-
The Opponent Nos.1 to 6 are jointly and severally directed to refund entire amount of consideration in the sum of Rs.15,00,000/- (Rupees Fifteen Lakhs only) to the Complainants alongwith interest @ 12% p.a. from the date of respective payment till its entire realization.
[4] The Opponent Nos.1 to 6 are jointly and severally directed to pay an amount of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) to the Complainants towards compensation for mental, physical harassment and financial loss.
[5] The Opponent Nos.1 to 6 are jointly and severally directed to pay amount of Rs.50,000/- (Rupees Fifty Thousand only) towards costs of litigation to the Complainants.
[6] The Opponent Nos.1 to 6 are jointly and severally directed to comply with the aforesaid order within a period of 45 days from the date of receipt of copy of this Order.
9 (CC/16/1006) [7] In case, the Opponents fails to comply with the Operative Order Sr.No.(4) and (5) within a period of 45 days, the Opponents are liable to pay interest @ 9% p.a. to the Complainants.
[8] Copy of this order be supplied to both the parties free of costs.
[Mukesh V. Sharma] Presiding Member [Dr. Satish A. Munde] Member rsc