National Consumer Disputes Redressal
Niloba Ghanshyam Naik & Anr. vs Lodha Pranik Developers Pvt. Ltd. on 1 May, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER COMPLAINT NO. 89 OF 2014 1. Niloba Ghanshyam Naik 2. Mrs. Yogita Niloba Naik Both R/at A-501, Shivam-2, Raheja Complex, Malad (East) Mumbai 400 097 Complainants Versus 1. Lodha Pranik Developers Pvt. Ltd. (Earlier known as Pranik Landmark Associates) 2. Mr. Mangal Prabhat Lodha, Chairman Lodha Group, 3. Mr. Abhishek Lodha, M.D. Lodha Group, 4. Mr. Abhinandan Lodha, Dy. M.D. Lodha Group Having address at : Lodha Excelus, Apollo Mills Compound, N.M. Joshi Marg, Mahalaxmi, Mumbai 400 011 Opposite Parties BEFORE: HONBLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER HONBLE DR. S. M. KANTIKAR, MEMBER For the Complainants : Mr. Nagaraj V. Hoskeri, Advocate Pronounced on : 1st May, 2014 O R D E R
JUSTICE J. M. MALIK, PRESIDING MEMBER
1. There is a delay of 207 days in filing the instant complaint. The complaint was filed on 1.4.2014, whereas the cause of action had arisen on 21.12.2010 and at the most on 6.11.2011.
2. Learned counsel for the complainants has filed an application for condonation of delay, which also contains the facts of this case on merits, as well. Mr. Niloba Ghanshym Naik and Mrs. Yogita Niloba Naik, husband and wife, respectively, booked 4 BHK flat with the Lodha Pranik Developers Pvt. Ltd.-opposite party No. 1 and its Chairman, Mr. Mangal Prabhat Lodha, opposite party No. 2, M.D. of Lodha Group, Mr. Abhishek Lodha, opposite party No. 3 and Mr. Abhinandan Lodha, Dy. M.D. Lodha Group, opposite party No.4. The consideration of the said flat was Rs.4,90,73,850/- in the building known as Exclusive Tower-Fiorenza at Lodha Fiorenza, Goregaon East, Mumbai and accordingly paid a sum of Rs.9 lakh by cheque on 13.11.2010 as part of the total consideration amount and the opposite parties had issued receipt of the same.
3. However, the opposite parties did not execute the registered agreement for sale of the said flat and violated the provisions of Section 4 of the Maharashtra Ownership Flats Act, 1963. ( in short, MOFA). Several requests were made orally as well as in black and white but the request made by the complainants fell on deaf ears.
4. The succinct facts of the case are as follows. The complainants paid a sum of Rs. 9 lakh by cheque dated 13.11.2010 to the opposite parties. The complainants sent email to the opposite parties requesting them to give time to make payment till 10.1.2011 and not to charge interest for the same on 21.12.2010.
The opposite parties replied through email informing that they want some more time to discuss with the superior officers for the grace period. On the next very day i.e. on 22.12.2010, the opposite parties through email informed the complainants that they would give only 3 days grace period for depositing the amount. The complainants replied that 3 days time was not sufficient for depositing the huge amount of Rs.40,07,385/- and the opposite parties were making fun of their request. They asked for refund of the earnest amount of Rs. 9 lakh by cancelling the booking. On 23.12.2010, the complainants sent email to Mr. Ashutosh Khatawakar, Deputy General Manager of Lodha Group and requested him to look into the matter and allow him to make payment on or before 10.1.2011 otherwise their booking should be cancelled and the amount be refunded.
5. Till 11.1.2011, the opposite parties did not respond. Due to frustration, the complainants wrote letter to the opposite parties for refund of the earnest money after cancelling the booking on 11.1.2011. On 30.8.2011, the complainants sent another email to the opposite parties and once again requested for refund of the earnest money. On 6.9.2011, the opposite parties informed the complainants that the amount of earnest money was forfeited.
6. Vide letters dated 2.10.2011 and 14.6.2013, the complainants asked the opposite parties to execute the agreement for sale of the said flat or in the alternative refund the earnest money because there was deficiency on their part and unfair trade practice.
The said letter was replied by opposite parties on 7.10.2013 denying all these facts. Legal notice was issued on 11.11.2013. It is explained that under the circumstances, there is no delay in filing the present complaint. However, as an abundant precaution, the application for condonation of delay has been filed on record.
7. It is further explained that on 2.2.2014, the father of the complainant No. 1 expired and due to his sudden demise, he could not file the complaint in time as he was busy with the last funeral rites of his father at his native place. Immediately after his arrival in Delhi, he signed the complaint on 28.3.2014. It is explained that in the reply notice dated 7.10.2013, the opposite parties for the first time came with a case that flat booked by the complainants stood cancelled and the amount of Rs. 9 lakh was forfeited. It is contended that cause of action arose on 7.10.2013.
8. The learned counsel for the petitioner argued that there is deficiency on the part of the opposite parties, firstly, they did not execute the agreement and secondly they delayed the matter for one reason or the other. He argued that above all, the opposite parties have tried to grab the amount of Rs.9,00,000/- belonging to the complainants. He contended that this is not a case of recovery of Rs.90,000/-. The prayers made in the complaint runs as follows:
a. To hold and declare the Opp. Parties to be guilty of deficiency in service and unfair trade practice as per the provisions of the Consumer Protection Act.
b. To direct the Opp.
Parties to execute registered agreement for sale in respect of Flat No. 2501, having four luxurious bed in the Building known as Exclusive Tower-Fiorenza at Lodha Fiorenza, Goregaon East, Mumbai (3150 Satt) in favour of the complainants and after accepting the balance consideration amount of the said flat, as per the progress of the construction as per the provisions of MOFA, the vacant and peaceful possession of the said flat be handed over to the complainants along with proper documentation and do the incidental thing thereafter.
c. In the alternative, it is prayed that the opp. Parties may be directed to hand over identical flat for same agreed price in the same locality in case of any technicality in handing over the originally booked flat.
d. In case of failure to hand over the possession of the said flat for any technical reason beyond the control of the opposite parties, as mentioned in prayer clause (b) and (c), then the Opp. Parties may be directed to refund the entire amount of Rs.9,00,000/- received by cheque dated 13th November, 2010 as part of the consideration amount, and also pay an additional amount of compensation of Rs.1,25,00,000/- along with 18% interest per annum on the said amount from the date of filing of the complaint as per para 10 of the complaint.
e. To pay compensation of Rs.2,00,000/- towards mental torture, harassment, inconvenience etc. caused to the complainants and the legal and other allied expenditure.
f. To pay Rs.1,00,000/- towards the costs of the complaint.
g. Any other relief/s as this Honble Commission may deem fit and proper may be awarded in favour of the complainants.
9. Learned counsel for the complainants has also submitted the written arguments as well and cited six authorities. In Lata Construction and Ors. Vs. Dr. Rameshchandra Ramniklal Shah and another AIR 2000 SC 380, wherein agreements were executed. Second agreement was also executed. It was held that this cause of action in regard to claim for possession was continuing cause of action. It is thus clear that this authority does not apply to this case. The facts of this case in hand are peculiar. There may be some deficiency on the part of the opposite parties. However, we are not discussing deficiency on the part of the opposite parties. That question is being kept open. In the instant case, no agreement was executed.
No brochure was produced. There was no question of forfeiture of the amount in the cited authority. No such contract was entered into between the parties. Likewise another authority reported in Meerut Development Authority vs. Mukesh Kumar Gupta IV (2012) CPJ 12 (SC) is also not applicable to this case. In that case, there was allotment of plot. He has also cited another authority of this Commission reported in Meerut Development Authority vs. Ashok Kumar Sood, revision petition No. 2267 of 2012 decided on 3.9.2012 authored by one of us (Honble Justice J. M. Malik), which is also not applicable to this case. The facts of that case also do not match with this case. He has also referred to another authority of Mumbai High Court reported in S. Irani (Sorkhab) vs. M/s Dinshaw & Dinshaw 1999 ALL MR (Cri) 57 wherein it was held that offence under Section 11 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 is a continuing offence under the criminal law. There is also judgment in first appeal No. A/10/744 of the Maharasthra State Consumer Disputes Redressal Commission. The facts of this case are altogether different.
10. The complainants have placed a number of correspondences on the file in regard to the request to extend the time for payment of Rs.40,07,385/-. There is another letter dated 22.12.2010 sent by the complainants which is reproduced as under:
Dear Sarina, I am surprised to see your mail reply and granting me 3 days grace time.. Is this a fun of my request or what? Can you give me the name of some senior person to whom I can meet tomorrow and understand your entire process of making balance payments in regular intervals because when I booked the flat all these things are not explained to me and even I am not very clear when the property will be ready for possession. No brochures were also available to see. Also please let me know if I cancel the deal then when I will get my money back so that it will help me to take the decision accordingly. Pl. treat this as urgent because every time getting you contacted on phone is also very difficult which you can see from my yesterdays mail. If this is how the beginning happens then I dont know what will be the approach for remaining five years. Any way reply me urgently.
There are other correspondences between the parties but the letter dated 6.9.2011 is crucial, which is produced:
Dear Mr. Naik, Greetings from Lodha Group ! Further to your below email, kindly note I have checked and can confirm that we will not be refunding the booking amount.
This is as per the terms and conditions of the application form, which you have signed at the time of booking the said residential flat. It states in the event, the Applicant wishes to withdraw from/cancel this application for any reason whatsoever prior to allotment of the said residential flat, the Booking Amount paid by the applicant shall stand forfeited.
The complainants sent another letter dated 2.10.2012, which runs as follows:
Ms. Sneha, Lodha Group Mumbai Dear Ms. Sneha, Thanks for your call day before yesterday and it was nice talking to you. As suggested by you in order to enable you to initiate the refund process, I am sending herewith the soft copy of the letter which I have already submitted for cancellation of the booking of flat bearing NO. 2501 in Lodha Fiorenza, Exclusive Tower, Goregaon East.
As agreed, I request you to process the papers urgently and refund the earnest amount of Rs. 9 lakh paid by me.
Appreciate your cooperation !! Thanks & regards
11. For the following reasons, we find no merits in the arguments urged by learned counsel for the complainants. There is no allotment letter. It is not known whether the terms and conditions were settled between the parties. It is also difficult to fathom why the opposite party had asked the complainants to deposit a sum of Rs.40,07,385/- within a period of 3 days. There is no inkling about any such term or condition. In absence of this kind of evidence the position does not begin to jell. It may be correct that the opponent was deficient in not executing the agreement but it should have been executed on 22.12.2010 when the first alleged installment was handed over to the opposite parties. The cause of action had arisen on 22.12.2010. It was just like putting the cart before the horse. The petitioners should have insisted the opposite parties to furnish them the terms and conditions or execute the agreement on 22.12.2010 itself. It may be a contributory negligence. There is not even an iota of evidence on record to reveal that any house was allotted in favour of the complainants.
12. Again, the complainants were bound by the oral term raised by the opposite parties that if they did not pay the said amount within three days, the opposite parties would have no option but to cancel the booking. Why did the opposite parties raise a demand within three days?. Was it a condition of allotment? Dallops of mystery surround this fact. The complainants have elliptically spoken on this subject. Therefore, the cause of action started w.e.f 23.12.2010.
13. Last but not the least, the complainants were told in black and white that their earnest money was forfeited as per the terms and conditions on 6.9.2011. Consequently, at best, the cause of action had arisen on 6.9.2011. The case was not filed within two years. It is well settled that the correspondences, representations and legal notice do not extend the time of limitation. The Consumer Protection Act, 1986 attracts the litigants a lot because only a nominal court fee is payable for filing a complaint.
The litigants are aversed to file the cases before the civil court and rightly so.
The earnest money of the complainants was forfeited on 6.9.2011. The complaint is barred by time. However, they are not remediless. They can file the case before the civil court till 5.9.2014. However, the case under the Consumer Protection Act, 1986 is barred by time. Consequently, we refrain from giving our piece of mind to other issues at this stage. The emphatic view taken by the Apex Court is available in following authorities. In a recent authority, the Supreme Court in Dolphin Offshore Enterprises (India) Ltd. vs. United India Insurance Co. Ltd., SLP No. 9307 of 2013 decided on 8.3.2013 it was held:
We have heard learned counsel for the petitioner and perused the record. In our opinion, the reasons assigned by the State Commission and the National Commission for holding that the complaint was barred by time are correct. It is not in dispute that the claim made by the petitioner was repudiated by the respondent vide communication dated 30.10.2002 and the complaint was filed on 25.5.2006 i.e. after three years and five months of repudiation of the claim.
Therefore, there is no escape from the conclusion that the complaint was barred by time. This view finds support from the judgment of this Court in HUDA vs. B. K. Sood (2006) 1 SCC 164, SBI vs. B. S. Agricultural Industries (I) (2009) 5 SCC 121, Kandimalla Raghavaiah vs. National Insurance Company (200) 7 SCC 768 and V. N. Shrikhande (Dr.) Vs. Anita Sena Fernandes (2011) 1 SCC 53.
The case is barred by time. Therefore, the same is hereby dismissed. There lies no rub for the complainants to seek remedy of their grievances from the appropriate forum as per law.
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(J. M. MALIK, J) PRESIDING MEMBER ...Sd/-
(S. M. KANTIKAR) MEMBER Naresh/17