State Consumer Disputes Redressal Commission
Dr.Dinesh Kabra And Mrs.Nitika Kabra vs M/S.Amogh Enterprises Through Partner ... on 30 September, 2021
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO. CC/18/482
1. Dr. Dinesh Kabra
2. Mrs. Nitika Kabra
Nee Ms. Nitika Somani
Both residing at C-87, Central Area,
IIT Bombay Campus, Powai,
Mumbai-400 076 ... COMPLAINANTS
Vs.
1. M/s Amogh Enterprises,
A Partnership Firm
2. Mr. Rajaram Babala Manjavkar
Partner of M/s Amogh Enterprises,
Both having their office at C-704/705,
Sahyadri CHS, Sadguru Nagar,
Devipada, Borivali (East),
Mumbai-400 066 ... OPPONENTS
BEFORE :
Hon'ble Mr.D.R. Shirasao, Presiding Judicial Member
For the Complainant : Adv. Dharmendra Damani
For the Opponent : None
1
ORDER
Per Mr.D.R. Shirasao, Presiding Judicial Member
1. Complainants have filed this consumer complaint against opponents for getting possession of flat and other reliefs. Brief facts of the case are as under :
2. Under a Memorandum of Understanding dated 03/05/2013, opponent agreed to sell a flat admeasuring 1070 sq.ft. with built up area situated on 11th Floor to 14th Floor of a building by name Saffire to be constructed on a plot bearing C.T.S.No. 215 (pt), 220 to 258 (pt), 259(pt), 260(pt), and 284(pt) of village Magathane, Devipada, Borivali (East), Mumbai-400 066 for total consideration of Rs.75,43,500/-. Opponents had accepted amount of Rs.22,63,050/- from complainants as part of consideration for that flat. By that MOU, opponents had agreed to hand over possession of the flat to complainants within a period of 3 and half years from execution of that agreement. However, opponents failed and neglected to comply the terms of the MOU and committed breach of the same. Although 60 months had been passed, opponents have not started construction on that land. Hence, complainants had issued termination notice to opponents on 23/1/18 and asked opponents to cancel the MOU and refund the amount alongwith interest on it. However, opponents had not complied with notice and assured the complainants to give possession of the flat in due course. However, thereafter also, there was no construction on the said land and opponents had not given possession of 2 flat to complainants. Hence, complainants have filed this complaint for getting possession of flat from opponents on executing agreement in respect of the same on payment of balance amount of consideration. In alternative, they have claimed possession of any other alternate flat from opponents situated in that vicinity or in alternative, claimed refund of amount alongwith interest on it alongwith cost and compensation.
3. After admission of consumer complaint, notices were issued to the opponents. Although notices were served on opponents, they did not remain present before the Commission to contest the consumer complaint. Hence, by passing order on 2/11/2018, this Commission directed this consumer complaint to proceed ex-parte against opponents. Thereafter, complainants had filed their evidence on record alongwith documents alongwith notes of arguments. I had gone through the same and decided this consumer complaint on merit.
4. In this case, it is admitted fact that opponents had agreed to sell one flat admeasuring 1070 sq.ft. with built up area situated on 11th Floor to 14th Floor of a building by name Saffire to be constructed on a plot bearing C.T.S.No. 215 (pt), 220 to 258 (pt), 259(pt), 260(pt), and 284(pt) of village Magathane, Devipada, Borivali (East), Mumbai-400 066 to complainant for total consideration of Rs.75,43,500/-. In that respect, Memorandum of Understanding was executed in between complainant and opponents. Copy of the same is produced on record by complainant. In view of that agreement, complainants had deposited amount of Rs.22,63,050/- with opponents on different dates. Opponents have acknowledged the amount by giving receipt in that respect in favour of complainants. In this case, it 3 appears that, although opponents had agreed to give possession of the flat to complainants within 3 and half years of execution of MOU, there was no construction of work on that land and opponents failed to give possession of flat to complainants. Hence, complainants had given notice to opponents and asked opponents to terminate the MOU executed by them and refund the amount alongwith interest on it. However, opponents had not terminated the MOU executed by them in favour of complainants and assured complainant to give possession of flat in due course. Irrespective of that, as complainants have not received possession of flat from opponents, complainants have filed this complaint for getting possession of flat from opponents or in alternative, any other flat of the same size in that locality from opponents after executing agreement in respect of that flat in favour of complainants on receipt of balance amount of consideration from complainants. In alternative, complainants have claimed refund of amount of Rs.22,63,050/- alongwith interest alongwith cost and compensation. In view of the same, I proceed to pass the following order :
ORDER
1) Consumer complaint filed by complainants against opponents is hereby partly allowed subject to cost of Rs.20,000/- to be paid by opponents to complainants.
2) Opponents are hereby directed to hand over possession of flat admeasuring 1070 sq.ft. with built up area situated on 11th Floor to 14th Floor of a building by name Saffire to be constructed on a plot bearing C.T.S.No. 215 (pt), 220 to 258 4 (pt), 259(pt), 260(pt), and 284(pt) of village Magathane, Devipada, Borivali (East), Mumbai-400 066 to complainants after executing agreement in respect of that flat in favour of complainants within a period of 3 months from passing of this order by accepting balance amount of sale consideration from complainants.
3) In alternative, if opponents are not in a position to handover possession of flat to complainant, then opponent is directed to hand over possession of any other alternate flat of the same dimensions situated in that locality to the complainants by executing agreement in respect of the same in favour of complainants and after accepting balance amount of sale consideration from complainants.
4) In alternative, if opponents are not in a position to hand over any flat to complainants, then opponents are directed to refund amount of Rs.22,63,050/- to complainants alongwith interest on that amount @ 18 p.c.p.a. from the date of deposit of the amount by complainants with opponents till realization of amount by complainants from opponents.
5) Opponents are further directed to pay compensation of Rs.1,00,000/- to complainants for mental pain and agony.
6) Opponents are directed to pay the amount of cost and compensation to complainants within the period of 30 days 5 from passing of this order. Otherwise, the amount shall carry interest @ 18 p.c.p.a. from the date of passing of this order till realization of amount by complainants.
7) Copies of order be furnished to the parties.
Pronounced
Dated : 30/09/2021
[ D.R. Shirasao]
Presiding Judicial Member
//mtc//
6