State Consumer Disputes Redressal Commission
Shri Suresh Pandey And Sou.Pragya ... vs M/S.R.N.A.Builders (N.G.) on 14 March, 2014
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. CC/11/133
Shri Suresh Pandey
and
Sou.Pragya Suresh
Pandey
r/at. Flat No.401, Ganesh Leela Building,
A Wing, Near Old
Golden Nest, Off.
Mira-Bhayander Road, Mira
Road (East),
Dist.Thane.
...........Complainants(s)
Versus
M/s.R.N.A.Builders
(N.G.)
Raja Bahadur building
28, Bombay Samachar Marg,
1st floor,
Near Share Bazar, Opp.State Bank of India,
Fort, Mumbai 400
023 through
Shri Narendra Gupta,
Managing Director/Sole Proprietor.
............Opp.Party(s)
BEFORE:
HONBLE MR. P.B.Joshi,
PRESIDING JUDICIAL MEMBER
HONBLE MR. Narendra
Kawde, MEMBER
PRESENT:
Adv.V.Mannadiar
for the complainants.
Adv.K.C.Sanil for
the opponent.
ORDER
ORDER :- (Per Honble Shri P.B.Joshi, Presiding Judicial Member ) [1] Complainants booked a flat bearing no.503 on the 5th floor of A building in project-N.G.Sterling, Next to Queens Merry High School, Golden Nest, Off.Mira Bhayander Road, Mira Road (East) with opponent builder/developer on 28/06/2009 for total consideration of `24,11,500/-. Earnest money `51,000/- was paid on 28/06/2009 and receipt to that effect was issued by the opponent. As per the complainants, remaining consideration was to be paid as per the development of the construction. As per complainants, they paid `3,10,725/-
from time to time. However, no construction was done by the opponent.
On enquiry by the complainants, it was orally informed by the opponent to the complainants about cancellation of booking as amount was not paid as agreed. It was the contention of the complainants that there was no progress of the work and there was no demand from the opponent about the further payment. Then, a legal notice was issued by the complainants to the opponent. However, there is no reply. Complainants have contended that there is deficiency in service. Complainants are ready to pay remaining amount and hence filed this consumer complaint against the opponent with prayer that it be held and declared that the opponent is guilty of deficiency of services, negligence and unfair trade practice as defined under the Consumer Protection Act, 1986.
Complainants have prayed that the opponent be directed to allot the flat booked by the complainants bearing no.503 on the 5th floor of A building in project-N.G.Sterling or any other equivalent 2 BHK flat on the 5th or higher floor in the same project and to give possession of the same to the complainants on the same price at the same rate and as per the terms and conditions stipulated in the Earnest Money Receipt dated 28/06/2009. The complainants, alternatively, prayed for direction to the opponent to refund to the complainants the amount of `3,61,725/- paid by the complainants to the opponent with interest thereon @24%p.a. from the dates of payment till realization. Complainants prayed to direct the opponent to pay a sum of `25,00,000/- as compensation and damaged for severe mental agony, humiliation and harassment suffered by the complainants on account of deficiency in service, negligence and unfair trade practices indulged in by the opponent. Complainants also prayed to direct the opponent to pay a sum of `50,000/- towards legal charges and costs incurred by the complainants.
[2] Opponent resisted the complaint by filing written version. Opponent admitted about the booking of the flat by the complainants with the opponent. As contented by the complainants, payment of `51,000/- as earnest money and further part-payment total amount of `3,61,725/-. It is contented by the opponent that as the complainants have not paid remaining amount as agreed and hence as per the terms mentioned in the Earnest Money Receipt, booking is cancelled. Hence, the opponent prayed to dismiss the complaint with costs.
[3] From the record and submissions made before us, it is clear that the complainants booked a flat with the opponent on 28/06/2009 for consideration of `24,11,500/- on the same day `51,000/- were paid as an earnest money and opponent issued earnest money receipt. Thereafter, the complainants paid different amounts from time to time and thus, total amount of `3,61,725/- was paid by the complainants to opponent. Contention of the opponent is that as the remaining amount was not paid by the complainants; booking was cancelled as per the conditions mentioned in the earnest money receipt. Learned advocate for the complainants have contended that the remaining amounts were to be paid as per the progress of the work. It is contended that there was no progress in the work and there was no demand from the opponent about the amount.
It was further contended that in the earnest money receipt itself, there is provision of acceptance of delayed payment with interest. After considering, the earnest money receipt, we find even if the contention of the opponent is accepted that there is delay on the part of the complainants in making payment of the amounts, opponent is not entitled for interest as there is deficiency in service on their part. We find that the opponent has not filed on record evidence about progress of the work and about the demand of the amounts made by the opponent to the complainants as per the progress of the work. Thus, we find that there is deficiency in service on the part of opponent. Legal notice was issued by the complainants to the opponent, but there was no reply from the opponent. Thus, we find that the complainants are entitled to possession of the flat, which was booked by the complainants as per the earnest money receipt on payment of remaining consideration. As there is deficiency in service on the part of the opponent though there is a clause for interest on delayed payment, opponent is not entitled for interest on the remaining amount. Complainants are entitled to the said flat and conveyance of it in favour of the complainants on payment of remaining amount. Complainants alternatively prayed for refund of amount paid by them to the opponent with interest. Hence, the complainants are alternatively entitled for refund of said amount along with interest. Hence, the order.
ORDER
1. The consumer complaint is allowed.
2. Opponent builder/developer is directed to hand over peaceful and vacant possession of the flat no.503 on the 5th floor of A building in project-N.G.Sterling, Next to Queens Merry High School, Golden Nest, Off.Mira Bhayander Road, Mira Road (East), Dist.Thane by accepting balance consideration of `20,49,775/- from the complainants by executing agreement. Complainants are directed to make balance payment of `20,49,775/- to the opponent builder/developer within a period of 60 days from the date of this order. In case opponent builder developer fails to accept the consideration, complainants are directed to deposit the same with the Registrar, State Consumer Disputes Redressal Commission, Maharashtra, Mumbai within a period of 60 days.
OR
3. Alternatively, at the option of the complainants, opponent builder/developer is directed to refund an amount of `3,61,725/- together with interest @21% p.a. from the date of filing of this complaint i.e. 31/05/2011 within a period of 60 days from the date of this order.
4. Opponent builder/developer shall bear their own costs and pay `25,000/- towards costs of the litigation to the complainants.
5. Certified copies be furnished to the parties.
Pronounced on 14th March, 2014 .
[HON'BLE MR. P.B.Joshi] PRESIDING JUDICIAL MEMBER [HON'BLE MR.Narendra Kawde] MEMBER pgg