State Consumer Disputes Redressal Commission
1.Mr.Prashan Balkrishna Dhotre ... vs 1.M/S.Ganaraj Group O/A.Andradis ... on 28 November, 2014
STATE CONSUMER DISPUTE REDRESSAL COMMISSION, MUMBAI STATE CONSUMER DISPUTE REDRESSAL COMMISSION, MUMBAI. Consumer Complainant No.137 of 2010 1.Mr.Prashan Balkrishna Dhotre 2.Mrs.Sailee Prashant Dhotre R/a. Trishul Apt.,Thakur Nagar, Jogeshwari(East), Mumbai-400 0600 Through Power of Attorney holder Ms.Lalita Balkrishna Dhotre R/a. Trishul Apt.,Thakur Nagar, Jogeshwari(East), Mumbai-400 0600 Complainant(s) Versus 1.M/s.Ganaraj Group O/a.Andradis Wadi, D.L.Vaidya Road, Dadar Mumbai And administrative O/a. 9, Basement, Sumer Castle, Meenatai Thakare Chowk, Thane (W) 400 601. 2.Mr.Shrikant V.Karlekar 3.Mr. Vasant N.Karlekar Both O/a.Andradis Wadi, D.L.Vaidya Road, Dadar Mumbai And administrative O/a. 9, Basement, Sumer Castle, Meenatai Thakare Chowk, Thane (W) 400 601. ....Opponent(s) BEFORE: HONBLE MR.P.B.Joshi PRESIDING MEMBER HONBLE MR.Narendra Kawade MEMBER PRESENT: Advocate Mr.Ajay pawar present for the complainant. None present for the opponents. ORDER
Per HonbleMr.Narendra Kawde, Member
1. Consumer complaint filed by the complainants (husband & wife) against the opponents who are the Builders & Developers alleging deficiency of service for not delivering possession of the flat purchased by the registered sale deed.
2. Case is in brief that complainants have entered in to registered agreement to purchase flat constructed and developed by the opponent builder and developers for total consideration of Rs.30,00,000/-. The registered agreement was entered and executed between the parties on 01/03/2007 and the possession was to be handed over on or before November,2009 as stipulated in the registered agreement. Out of total consideration the complainant has paid an amount of Rs.29,60,600/- which is an admitted position on record. Though almost more than 95% percent amount of the total consideration is paid by the complainants yet the opponents have failed to deliver vacant and peaceful possession of the flat bearing no.301 on 3rd floor in the building B in the project Ganaraj Heights at serve no.60-(p) plot No.1,2 Pachpakhadi, Thane. The opponents have not come forward in response to the complainants persuasion with any reason whatsoever for delay in the possession of the flat for more than 5 years from the deadline mentioned in the registered agreement.
3. Opponents builder have appeared and filed written version. On carefully going through the written version, it is avert that complaint is not maintainable as complainants are not consumer under the provisions of Consumer Protection Act,1986. Moreover complainants failed to disclose any deficiency on the part of opponents. Except this substantive statement the opponents have generally denied the allegations set out in complaint. However, the opponents have admitted receipt of payment of Rs.29,60,600/- no reason whatsoever has been mentioned for abnormal delay in delivery of the possession of the flat, though admitted to have entered in to the registered agreement for sale of flat and receipt of substantive amount as consideration from the complainants.
4. Initially the opponents were represented by advocates who were often represented through different advocates. The opponents have filed written version. However, fail to file affidavit evidence on the stage of filing. Therefore, the case was proceeded without affidavit evidence of the opponents and heard finally. Hence none represents for the opponent from the date of hearing that is 22/01/2014 to till the date of hearing 14/11/2014 on each and every date. Therefore we have heard finally learned advocate Mr.Ajay Pawar for the complainant, perused the record and documents the complainant relied upon. Admittedly there is a registered agreement for sale of subject flat executed on 01/03/2007 between the complainants and the opponents builder developers, which is a registered partnership firm. Sale deed is signed by the opponents. As per the schedule of payment incorporated in the registered agreement the complainants have paid amount of Rs.29,60,600/- which is acknowledged by the opponents. We agree with the learned advocate that complainants have punctually made the payments as per the stages and committed no default or delay. Several time persuasions by the complainant with the opponents did not yield any positive result for delivery of agreed flat. Written notices and finally legal notice issued to the opponent did not met any response. Aggrieved thereby the complainants were compelled to file this consumer complaint before us. Praying for possession of the flat together with Rs.9,84,113/- as interest on the amount paid, Rs.15,00,000/- for mental agony, Rs.12,60,000/- for reimbursement of leased accommodation, and cost of litigation for Rs.1,00,000/-.
5. Opponents have failed to file affidavit in lieu of evidence in support of their contentions raised in written version though opportunity was granted pleading of the opponents (written version) is not substantiate by leading affidavit evidence.
Even on carefully going through the written version on record no tangible reasons have been set out for delayed possession of the flat. On going through the registered agreement to sale, we find that the possession was to be delivered on or before November,2009. The terms and conditions set out are certainly binding on the parties executing the agreement. Admittedly the complainants have fulfill their obligation by making payments (more than 95% as per the agreed total price ) however, opponents without coming forward with tangible reasons have delayed agreed possession by almost 5 years. There is no document adduced by the opponent to justified delay in delivery of the flat. Therefore as rightly pleaded by the learned advocate the opponents have incurred deficiency of service to the complainants by not delivering the vacant and peaceful possession. Complainants are willing and ready to pay balance amount of Rs.39,400/-(Rs.30,00,000/-. - Rs.29,60,600/- = Rs.39,400/-).
6. The possession has been unduly delayed by the opponents though substantive amount of Rs.29,60,600/- as against agreed price of Rs. Rs.30,00,000/- has been duly received and acknowledge. Therefore the prayer of the complainant to claim interest@18% per annum on this amount paid for the delayed period effective from 30/11/2009 till date of filing the complaint is tenable and also the interest thereon till date of possession can not be faulted with. However, prayer of the complainant for amount of Rs.7,52,884/- an account of excess payment and stamp duty is unjustified and find no placed. Like wise prayer for Rs.2,00,000/- on account of compensation for utilization of down payment and amount of Rs.12,60,000/- as reimbursement for lease accommodation deserves no consideration for want of legal provisions suplimented by documentary evidence. However, the complainants have been made to suffer the mental harassment as the agreed possession has not been delivered even till today. Therefore, they are entitled for reasonable amount for mental agony and the legal cost.
We are therefore inclined to award an amount of Rs.3,00,000/- on account of mental agony and Rs.50,000/- as cost of litigation as complainant have been pursuing this consumer complaint, since 31/07/2010 by engaging service of the advocate. In view of the foresaid observations complaint must succeed.
We therefore allowed the consumer complaint and pass the order as follow;
ORDER
1. Complaint is partly allowed.
2. Opponent Builder and Developers are directed to handover vacant and peaceful possession of flat No.301, 3rd floor in the building B, in the project Ganaraj Heights at survey no.60-(p) plot No.1,2 located at Pachpakahdi, Thane within a period of 45 days from the date of this order, failing which Rs.1,000/-per day shall be payable by the opponents to the complainants till handing over of actual possession of said flat.
3. Complainants are directed to pay balance amount of Rs.39400/- to the opponent builder developers within a period of 30 days from date of this order. In case opponents decline to receive the said payment, complainants are directed to deposit the amount of Rs.39400/- in the office of Registrar Legal of this State Commission within 8 days from the date of refusal of the opponents.
4. Opponents are further directed to pay an amount of Rs.9,84,113/- on account of interest against consideration of Rs.29,60,600/- received from the complainant within period of 45 days from date of this order, failure to do so will attract interest@9% per annum on amount order to be paid till realization.
5. Opponents are directed to pay an amount of Rs.3,00,000/- on account of mental agony and harassment and Rs.50,000/- as cost of the litigation to the complainant.
Pronounced on 28th November,2014 [Honble Mr. P.B.Joshi] Presiding Member [HonbleMr.Narendra Kawde] Member db