State Consumer Disputes Redressal Commission
Mr Santanu Sudhir Banerjee vs M/S Chaurang Developers & Anr. on 4 January, 2013
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. CC/10/194
1. MR SANTANU SUDHIR
BANERJEE
NL/6 BUILDING NO 18
FLAT NO 10 SECTOR 8 NERUL WEST NAVI
MUMBAI
THANE
...........Complainant(s)
Versus
1. M/S CHAURANG
DEVELOPERS
THRU ITS PROPRITOR MR
HARISHCHANDRA MADHUKAR SHINDE, FLAT NO 804, SOHAM EXOTICA 8 TH FLOOR
PLOT NO 69 SECTOR 21 KHARGHAR NAVI MUMBAI
THANE
MAHARASHTRA
2. VARADVINAYAK REAL
ESTATE CONSULTANT
THRU ITS PROPRIETOR
MR VIJAY SHINDE, NL 4 BLDG 22 FLAT 9 SEC 11 NERUL NAVI MUMBAI
THANE
MAHARASHTRA
............Opp.Party(s)
BEFORE:
HON'BLE Mr. S.R.
Khanzode PRESIDING MEMBER
HON'BLE MR. Dhanraj
Khamatkar Member
HON'BLE MR. Narendra
Kawde MEMBER
PRESENT:
Complainant-Mr.Santanu
Banerjee present in person.
Ms.Manasi Vallam, Advocate a/w. Mr.Sunil Mokal, Advocate
for the opponents.
ORDER
Per Shri Dhanraj Khamatkar, Honble Member Mr.Santanu Sudhir Banerjee (hereinafter referred to as complainant) has filed a consumer complaint against M/s.Chaurang Developers through its Proprietor Mr.Harishchandra Madhukar Shinde and Varadvinayak Real Estate Consultant through its Proprietor Mr.Vijay Shinde (hereinafter referred to as opponents) under the Consumer Protection Act, 1986 on 16/11/2010. The complaint was numbered as Complaint No.194/2010. Accordingly notices were served on the opponents.
Opponents appeared through their Advocates and filed written version and given copy of the same to the complainant.
2. The brief facts of the complaint can be summarized as under :-
The complainant states that he has purchased two flats in a project constructed by opponent No.1 called as Mangalmurti. He states that he purchased flat No.504 admeasuring 53 sq.mtrs. built up area (570 sq.ft.) on 19/09/2008 for a consideration of `5 Lakhs for himself and flat No.402 admeasuring 555 sq.ft. on 30/12/2008 for a consideration of `11 Lakhs for his daughter. The consideration for flat No.504 amounting to `5 Lakhs has been paid in cash for which opponent No.1 has issued a receipt. It is further stated that on receiving full consideration for flat No.504, opponent No.1 has signed Sale Agreement in respect of said flat and also issued a General Power of Attorney in favour of the complainant for the said flat No.504 on 19/09/2008 with an assurance that possession of the same will be delivered by 15/12/2008.
3. The complainant further states that in the month of December 2008, opponent No.1 along with opponent No.2 approached to him citing financial need for said project and offered to sell another flat in the said project called Mangalmurti. He further states that he accepted the offer of the opponents and agreed to purchase flat No.402 admeasuring 555 sq.ft. built up area on the 4th floor and paid an amount of `5 Lakhs by cheque bearing No.806949 dated 30/12/2008 and accordingly, opponent No.1 had issued receipt dated 30/12/2008.
Accordingly, opponent No.1 had issued allotment letter dated 31/12/2008 for flat No.402. The complainant further states that on 30/12/2008 the opponent Nos.1&2 demanded full consideration of `11 Lakhs for flat No.402 with promise of possession of both the flats very shortly. He further states that on advice of his Advocate Mr.Suresh Nair he paid `5 Lakhs by cheque as consideration for flat No.402 and on request and insistence of the opponents paid `5 Lakhs of consideration as a friendly loan to opponent No.1. This payment was done on the promise of opponent Nos.1&2 of adjusting the same with final consideration amount.
The complainant further states that opponent No.1 voluntarily and without asking by the complainant offered to pay an interest @ 24% p.a. on the consideration amount given as friendly loan. Opponent No.1 further agreed to adjust this loan amount of `5 Lakhs and accrued interest with the consideration amount against the balance payment of flat No.402 within two months or on possession whichever is earlier. He further states that opponent No.1 had issued a Promissory Note dated 30/12/2008 acknowledging this transaction in presence of opponent No.2 and Advocate Mr.Suresh Nair.
4. The complainant further states that he had paid amount of `15 Lakhs for consideration of flat Nos.504 & 402 against total consideration amount of `16 Lakhs for two flats. He further states that if the interest @ 24% as agreed by the opponents is added in the amount paid to the opponents, it comes to `17,30,000/-
till October 2010 which is much excess to the amount, the complainant is required to pay to the opponents for full consideration. The complainant further states that despite all the facts that he had paid `17,30,000/- the opponents are not handing over possession of flat Nos.504 & 402 and the opponents are doing this with a premeditated ulterior motive and malicious intention. The opponents started demanding more money for consideration of the flats booked. The complainant had sent legal notice to the opponents on 07/12/2009.
However, he had not received any reply. He further states that he had filed criminal complaint against opponents in Nerul Police Station and the Police has registered a F.I.R. No.291 on 30/08/2010 against the opponents. The complainant alleged that he has filed the present complaint for deficiency in service on the part of opponents and unfair trade practice. He further contended that opponents have violated the provisions of the Indian Contract Act, 1872. The opponents have also violated provisions of Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963.
He further contended that prices of the flats in the vicinity of the suit flats are skyrocketed to `4,000 to `4,500/- per sq.ft. Contending that not handing over the possession of the flat by the opponents amounts to deficiency in service, the complainant had filed present complaint with following prayers :-
a) That the opponents be directed to remove the deficiency immediately by executing the Conveyance Deed/Sale Deed and other relevant documents including handing over the physical possession of flats of area 555 sq.ft. and 570 sq.ft. as per the Agreement for Sale (19/09/2008), General Power of Attorney (19/09/2008) and Allotment Letter (31/12/2008) signed by the opponent on 19/09/2008 and 30/12/2008 respectively as appended herein above.
b) That the opponents be directed, if it is absolutely not possible to hand over the physical possession of the suit flats with all its proprietary documents within the next one month in the developed building now, then, they should compensate the complainant with a like flat of same size (555 and 570 sq.ft.-Built up or pay `45,00,000/- (Rupees Forty-five Lakhs only) plus interest @2% (two percent per month) from the date of filing this complaint until factual payment.
c) That the opponents be directed to pay adequate compensation of `50,000/- (Rupees Fifty thousand only) for continuous harassment, emotionally, financially, mentally and physically coupled with agony with delayed possession and increased cost of operations during the last 26 months.
d) To refund the rent of `5,000/- (Rupees Five thousand only) per month from the date of purchase of the first flat till the day of compliance of order or a lump sum of `1,50,000/- (Rupees One lakh fifty thousand only).
e) To pay appropriate and reasonable compensation for delayed possession of suit flats.
f) To pay reasonable expenditure of `20,000/- (Rupees Twenty thousand only) incurred by the complainant for going to the office and residence of opponents for getting the possession of his flats.
g) To pay reasonable expense of `20,000/- (Rupees Twenty thousand only) to the complainant being the cost of this litigation.
h) Any other appropriate relief/s including Interim reliefs, that this Honble Commission may deem fit and proper in the facts and circumstances of this case.
5. The opponents had contested the complaint by filing written version contending that complaint filed by the complainant is totally based on false assumption and allegations which are levelled against the opponents without any corroboration of the facts as narrated in the said complaint and hence, the complaint needs to be dismissed with costs.
6. In the written version, opponent No.1 had admitted that he is a builder by profession and he was carrying out his development activity under the name and style as M/s.Chaurang Developers. Opponent No.1 challenged the nature of transaction and contended that the complainant had on interest advanced loan of `10 Lakhs to him for which he had to pay interest @ 6% p.a. to the complainant but in order to obtain security of the amount, the complainant obtained and got executed an Agreement for Sale on 19/09/2008 in respect of flat No.504 on 5th floor in the Mangalmurti Apartment and also obtained one letter of intent in respect of flat No.402 on 4th floor. Subsequently, the complainant has also got one Power of Attorney executed in his favour from him in respect of flat No.504. Opponent No.1 further contended that complainant has also got one Promissory Note executed in his favour from him in respect of `5 Lakhs which was to be paid back by paying interest @ 24% p.a. and the same is dated 28/12/2008. Opponent No.1 further contended that in this way the complainant had tried to trap him under Consumer Protection Act, 1986.
7. He further contended that he does not know opponent No.2. He states that complainant himself has approached to him for lending said amount. Opponent No.1 had denied all the allegations made in the complaint. Opponent No.1 further stated that the statement of the complainant in Para 13 of the complaint is relatively true that the complainant has sent a notice through his Advocate to claim possession of the property since there was no such contract between opponent No.1 and the complainant for creating a base for filing consumer complaint. Opponent No.1 further submitted that there was delay in paying back the amount which the opponent No.1 had taken on interest and the complainant in order to put pressure on opponent No.1 had falsely lodged a criminal complaint against opponent No.1. Opponent No.1 submitted that the complainant is not a consumer under the Consumer Protection Act, 1986 for the simple reason that the money advanced to him was not for purchase of the said flat Nos.504 & 402 in the Mangalmurti Apartment but the said amount was paid on interest basis and thus, the complainant does not become a consumer within Section 2(1)(d) of Consumer Protection Act, 1986. Therefore, opponent No.1 had prayed that complaint may please be dismissed.
8. Complainant has relied upon his verification affidavit dated 11/10/2010 and affirming the same by separate affidavit by way of evidence dated 21/02/2012. Along with affidavit, the complainant had filed ten documents as per the list of documents.
9. Opponent No.1-builder has relied upon his own affidavit filed along with his written version. Along with affidavit he had filed certified copy of O.M.A. No.79/2010, certified copy of O.M.A. bearing No.529/2011, certified true copy of complaint bearing No.851/2012, certified copy of Charge-sheet of case bearing No.1105/2010. They relate to the criminal proceedings for dishonour of cheques issued by the builder under Section 138 of Negotiable Instrument Act.
10. Both the parties have filed brief notes of arguments.
11. The complainant personally argued his case. On behalf of opponents we heard Advocate Ms.Manasi Vallam a/w. Advocate Mr.Sunil Mokal.
12. We have gone through the complaint, written version filed by opponents, evidence adduced by both the parties on affidavit.
13. The complainant had booked a flat bearing No.504 admeasuring 570 sq.ft. built-up area i.e. 53 sq.mtrs. in the building to be constructed by opponent No.1 for a lump sum full consideration of `5 Lakhs by paying an amount of `5 Lakhs on 19/09/2008 in cash. Receipt for the payment is also on record.
There is a copy of unregistered agreement to sale dated 19/09/2008. There is a General Power of Attorney executed by M/s.Chaurang Developers through its Proprietor Mr.H.M. Shinde who is opponent No.1 in favour of the complainant dated 19/09/2008 authorising the complainant to be true and lawful attorney to do or cause to be done all or any of the following acts, deeds, matters and things that he would have done personally in respect of said flat bearing No.504 in Mangalmurti building, plot No.67, Sector-20, Kharghar, Tal. Panvel, Dist. Raigad, to sign, execute the Deed of Conveyance, Deed of Assignment, Sale Deed, Rectification Deed, Agreement to Sale and to lodge the same at the office of the Sub-Registrar of Assurance at Panvel for registration. It is a co-incidence that the unregistered document which is alleged to be entered into between the parties on receipt of `5 Lakhs in cash and the document authorizing General Power of Attorney in favour of complainant are of the same date i.e. 19/09/2008. Strangely as contended by the complainant himself that he has booked a flat No.402 having area of 555 sq.ft. for lump sum consideration of `11 Lakhs and flat No.504 which admeasured 570 sq.ft. has been booked for consideration of `5 Lakhs on 19/09/2008 and there is gap of only three months. We are surprised to find discrepancy in the price of both the flats.
Further, payment of the amount of `5 Lakhs is made through cheque on 30/12/2008 and opponent No.1 had issued a receipt therefor. The opponent has issued allotment letter on 31/12/2008 for flat No.402.
14. The complainant himself contended in Para 7 of his complaint that -on 30/12/2008 opponent Nos.1&2 demanded full payment of consideration of `11 Lakhs for flat No.402 with a promise of possession of both the flats very shortly and demanded full consideration. I refused to pay full consideration before possession of both the flats. On insistence from opponent Nos.1&2 and advice from Advocate Mr.Suresh Nair, who was also a signatory witness in the transaction, I paid `5 Lakhs by cheque as consideration for flat No.402 and on request and insistence from the opponent gave `5 Lakhs of consideration amount as friendly loan to opponent No.1.
This payment was done on the promise of opponent Nos.1&2 of adjusting the same with final consideration amount. Voluntarily and without demanding, opponent No.1 offered to pay an interest @ 24% p.a. on the consideration amount given as friendly loan. The opponent also promised to adjust this loan amount of `5 Lakhs and accrued interest with the consideration amount, against the balance payment for flat No.402 within two months or on possession whichever is earlier. This arrangement was also guaranteed by opponent No.2. Opponent No.1 had also issued Promissory Note dated 30/12/2008 acknowledging this transaction in presence of opponent No.2 and Advocate Mr.Suresh Nair. When the complainant wanted a flat for his personal use why there was necessity to execute Promissory Note or advancement of loan with an interest @ 24% p.a. We do not find any convincing explanation from the evidence adduced by the complainant. Similarly, if we see both the transactions together, consideration for flat No.504 is just `5 Lakhs and the area is 570 sq.ft. whereas within a period of three moths, consideration for flat No.402 is `11 Lakhs and area is only 555 sq.ft. We do not find any convincing explanation in the pleadings of the complainant. Further the flat No.504 was booked on 19/09/2008 and the entire consideration amount was paid in cash. There was unregistered document on record and complainant has not taken steps for registering the document. On the contrary, opponent No.1 executed General Power of Attorney for the said flat in the name of the complainant. Unexplainable difference in the amount of consideration of flat No.402 and flat No.504 and advancement of loan of `5 Lakhs to the opponents with interest @24% p.a. and stating that it is a friendly loan, raised many questions regarding genuineness of the transactions.
15. As earlier pointed out the real question arises about true nature of the transaction between the parties, namely, complainant and the builder.
It is the case of the builder that it is a loan transaction of `10 Lakhs and for which various documents including unregistered agreement of sale in respect of flat No.504 dated 19/09/2008, General Power of Attorney executed by him in favour of the complainant of the even date, further allotment letter dated 30/12/2008 in respect of flat No.402 and a Promissory Note dated 30/12/2008 were got executed from time to time from him. To this case, the complainant did not answer rebutting the same in his evidence.
The complainant has filed one document titled as Affidavit Evidence. However, it is not an affidavit at all since it is not sworn and affirmed before the Officer on oath. It is mere a document of argument rather than evidence on affidavit. It also does not refer to the case raised by the opponent No.1-builder about true nature of transaction and to establish the facts relating thereto.
16. The builder relied upon his own affidavit filed along with the written version to affirm his contentions.
17. It appears that complainant did not stick up to one story e.g. as recounted earlier, transaction pertaining to flat Nos.504 and 402 are distinct, different and entered at different point of time. First transaction pertains to flat No.504 dated 19/09/2008 while subsequent transaction pertains to flat No.402 was entered into on 30/12/2008.
Contrary to this, in the lawyers notice dated 07/12/2009 the complainant come with the different story which reads as under :-
My client says that he had been introduced to you by one common friend and Estate Agent Mr.Vijay Shinde. My client says that you had then represented to my client that you are a Builder Developer by profession and that you were having numerous development projects in and around Kharghar within Navi Mumbai.
My Client says that you then offered to sell to my client Flats being Flat No.402, fourth floor and 504, fifth floor in Mangal Murti Apartment, Plot No.67, Sector-20, G.E.S., Kharghar, Navi Mumbai which Flat was admeasuring a Built up Area about 555 sq.ft. each. My Client says that you had offered to sell the above said Flats for a total lump sum price of `16,00,000/-. My Client says that you had proposed that my client pay a sum of `10,00,000/- initially and the balance amount upon possession of the ready flat.
This reflects that the transactions in respect of flat Nos.504 and 402 were not separate, but part of one transaction and both the flats were offered for combined price of `16 Lakhs and out of which the complainant had paid `10 Lakhs. This, therefore, affects the credibility of complainants case.
18. Another instance of variance is in respect of amount of `5 Lakhs advanced on interest to opponent No.1-builder on 30/12/2008 and which is witnessed by a Promissory Note.
It is the case of complainant that said loan amount along with interest payable was to be adjusted against the price of the flat No.402 and accordingly even he pleaded that considering said adjustment he had overpaid the consideration for both the flats. Against this, in criminal complaint filed under Section 138 of Negotiable Instrument Act, he did not refer to his case presented in the consumer complaint before us about adjustment to be made of the said loan amount. It appears that two cheques, one of `3 Lakhs and another of `2 Lakhs were issued by opponent No.1-builder to the complainant perhaps to refund the amount of loan of `5 Lakhs and since they were dishonoured, criminal complaint under Section 138 of Negotiable Instrument Act was filed of which certified copies were filed by opponent No.1-builder along with his written version, supra. This variation, therefore, in the totality of the circumstances, assumes importance and affects credibility of the complainants case.
19. The complainant tried to rely upon certain conversation recorded by him on his mobile and of which one CD is presented before us along with transcript.
However, said piece of evidence is not tendered into the consumer complaint. Mere production (of a document, etc.) is not evidence.
There are special rules to get admit such piece of evidence of recorded conversation and which is not adhered to following the procedure prescribed under Section 13(4) of the Consumer Protection Act, 1986.
20. Admittedly, the agreement dated 19/09/2008 is an unregistered agreement pertaining to flat No.504. However, considering the provisions of Section 4A of Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA in short), the unregistered document could be used for collateral purpose but certainly, in the light of the discussion held above, it failed to establish any transaction in question is in its real nature, of sale of flat.
21. For the reasons stated above, we find that suspicion arose which is no dispelled by the complainant about real nature of the transaction. Since, he failed to establish the transaction as that of purchase of flats on the basis of which the deficiency in service on the part of opponent No.1 could be alleged, he failed to establish himself as a consumer within the meaning of the Consumer Protection Act, 1986.
We may clarify at this stage itself that we dealt with this problem within four corners of the Consumer Protection Act, 1986. The real nature of transaction and the enforceable legal right available to the complainant in respect of transactions in question can be enforced by him adopting suitable available remedies either before the Civil Court or otherwise.
22. For the reasons stated above, we hold accordingly and pass the following order :-
-: ORDER :-
1. Consumer Complaint stands dismissed.
2. In the given circumstances, parties to bear their own costs.
3. Copies of the order be furnished to the parties.
Pronounced Dated 4th January 2013.
[HON'BLE Mr. S.R. Khanzode] PRESIDING MEMBER [HON'BLE MR. Dhanraj Khamatkar] Member [HON'BLE MR. Narendra Kawde] MEMBER dd