State Consumer Disputes Redressal Commission
Mr. Ashish Kumar Jain vs M/S Teirth Developers And Suyojit ... on 15 February, 2023
CC/14/285
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint Case No. CC/14/285
1) Mr.Ashish Kumar Jain
2) Mrs.Preeti Jain,
Residing at:
B-106, Mahaveer Springs,
15th Main, 17th Cross, 5th Phase,
JP Nagar, Bangalore 560 078. ...........Complainant(s)
Versus
1. Teirth Developers & Suyojit Infrastructure Ltd.
A Joint Venture,
Having Office at:
8, Sneh Centre, F.C. Road,
Shivaji Nagar, Pune - 411 004.
2. M/s.Teirth Developers,
A Proprietorship firm of
Mr.Vijay Tukaram Raundal
Having address at:
Teerth Realties Office No.102,
1st Floor, Sai Empire,
Near ICICI Bank,
Baner Road, Baner, Pune - 411 045.
3. M/s.Suyojit Infrastructure Ltd.
Office at F-1/2, Suyojit Heights,
Opp. Rajiv Gandhi Bhavan,
Sharanpur Road, Nashik. ............Opponents(s)
BEFORE:
Justice S.P. Tavade - President
S.T. Barne - Judicial Member
For the
Advocate Shri Chirag Dave along
Complainant(s):
with learned Advocate Shri Rahat
Kalpatni and learned Advocate
Shri Shirish Kadlag
1
CC/14/285
For the
Advocate Anand Patwardhan
Opponent:
ORDER
Per Hon'ble Justice S.P. Tavade - President:
The Complainants have filed present complaint under Section 17 r/w Section 12 of the Consumer Protection Act, 1986 by alleging deficiency in service rendered to the complainants by the opponents as well as unfair trade practice played by the opponents.
(2) The complainants are resident of Pune. The opponent no.1 is joint venture of Opponent nos.2 and 3 as per their Joint Venture Agreement dated 03/08/2008. The opponent nos.2 and 3 are involved in day-to-day affairs of opponent no.1. The opponents had purchased land admeasuring 3,02,020.00 sq.meters out of land bearing Survey No.123/1, 123/2, 123/3/1, 123/3/2, 123/3/4 situated at Village Sus, Taluka Mulshi, District Pune. The complainants and other people had formed registered Co-operative Housing Society known as "The Aarohi Co-operative Housing Society Ltd." having its 166 members and aforesaid society has been registered under the provisions of Maharashtra Co-operative Societies Act. The complainants and members of the society approached to opponent no.3 with a request to construct flats, Row-houses, Twin-Bungalows as per the requirements of its members as a housing scheme in or around Village - Sus, Pune. The opponent nos.2 and 3 agreed to develop the land for housing scheme on certain terms and conditions by forming Joint Venture and formulated a scheme for complainants and members of its housing society.
2CC/14/285 (3) The complainants decided to book a residential flat with the opponents and accordingly they paid 15% amount out of total consideration of Rs.26,68,740/- to the opponents. The opponents accepted the said amount and allotted Flat No.206 in "E" Building, admeasuring carpet area of 102.91 square meter, Balcony Area of 13.99 square meter and covered parking bearing No.E-206 (hereinafter referred to as "Said Residential Unit"). The opponents executed registered Agreement for Sale dated 26/05/2009 in favour of the complainants. It was agreed between the opponents and the complainants that the opponents shall handover physical possession of the Said Residential Unit on or before 30/07/2010 to the complainants. It was also agreed that the opponents shall obtain all necessary permissions including completion certificate from appropriate authority. It was also greed between the opponents and the complainants that Clause no.11 of the Agreement that if the opponents fail or neglect to handover physical possession of the Said Residential Unit within agreed period of time then opponents shall pay simple interest @10% per annum upon the payment already received by the opponents from the complainants or the opponents shall pay and bear actual interest part of loan installments to the complainants or other purchasers till possession is handed over to such purchaser whichever is higher.
(4) It is contended that after execution of agreement the complainants paid 90% amount out of their own contribution and when demanded by the opponents and remaining balance amount due is payable by the complainants at the time of handing over the possession of the said residential unit.
(5) It is contended that opponents failed to handover possession of the Said Residential Unit to complainants as per the terms and 3 CC/14/285 conditions mentioned in the agreement on the ground that there is delay on their part to obtain the clearance from the concerned Government Department. The opponents informed that they had applied to Government Department for clearance of project and they had to receive clearance certificate from the Department. The complainants asked the opponents to produce the said correspondence, but, opponents failed and neglected to produce such correspondence. It is contended that the opponents with malafide intention to procure more money from complainants and other members of the society stated that there is delay in obtaining clearance certificate from various authorities of Governments Departments. It was contended that after various oral requests and in writing on the part of the complainants the opponents had not shown any interest to handover possession of Said Residential Unit to the complainants after receipt of 90% of the amount of consideration. Hence, the complainants had filed consumer complaint before the District Consumer Disputes Redressal Commission, Pune. Said complaint was returned to the complainants on the ground of jurisdiction and directed him to file the same before the appropriate authority. Therefore, the complainants have filed the present complaint before this Commission.
(6) It is contended that the opponents have specifically promised and agreed to provide all amenities as per Second Schedule and Annexure G of the agreement executed in favour of the complainants. It is contended that the opponents had agreed to construct Said Residential Unit for complainants as per agreement dated 26/05/2009. It is contended that as per specific terms and conditions of the said agreement the opponents failed and neglected 4 CC/14/285 to handover the possession of Said Residential Unit to the complainants. The opponents have specifically agreed to provide hot and cold water tap in dry balcony area in Said Residential Unit. Similarly, they had specifically agreed to provide branded Solar Water Heater System in Said Residential Unit. But, the said facilities are not provided by the opponents. It is contended that as per specific terms and conditions of the said agreement the opponents failed and neglected to handover the possession of Said Residential Unit to the complainant. It is contended that due to non- delivery of Said Residential Unit within stipulated period the complainant has suffered huge financial loss. Hence, the complainant has claimed compensation of Rs.10,00,000/- for causing loss, inconvenience, mental agony, stress and harassment. It is contended that due to non-delivery of possession of Said Residential Unit the complainants have sustained financial loss in terms of rent of Rs.25,000/- per month and hence, they have suffered a monetary loss worth of Rs.10,00,000/- i.e. from 01/08/2010 till filing of complaint.
(7) It is contended that the complainants made enquiry with the opponents about the delay in delivering possession of Said Residential Unit but the opponents had given evasive answers and false promises and assurances. It is contended that the opponents had assured that they would provide EURO 2X2 vitrified tiles of premium quality in Said Residential Unit, but the opponents used lower quality of tiles. The opponents had also agreed to provide amenities as per second schedule of agreement including generator back up for common areas and passenger lifts, inverter in each house, society office, religious hall for meditation and worship of individual faiths, a club along with two tennis courts, one basketball 5 CC/14/285 court, swimming pool for adult and kids, kids area with baby sitting facility, party garden, multipurpose room with cards tables, Gym, table tennis and pool tables, ample parking, two squash courts etc., but, till date the opponents have not made any progress for the same. It is also contended that the opponents had agreed to provide the grills for Said Residential Unit as well as to provide window frames with double powder coated aluminium frame in white/dark brown colour but the opponents changed the same without knowledge and information to the complainants. It is contended that the opponents have made major changes in Said Residential Unit without taking consent from the complainants. The opponents failed to provide sufficient reasons for delay along with demand letters and have threatened the dire consequence by canceling the booking of Said Residential Unit. The Complainants have prayed for possession of Said Residential Unit complete in all aspects and amenities as per the second schedule and Annexure G of Registered Agreement for Sale dated 26/05/2009. The complainants have also claimed interest @18% per annum on the amount paid by the complainants from time to time to complainants till date the opponents handover the possession of Said Residential Unit. The Complainants have also claimed rent of Rs.25,000/- per month from 30/07/2010 till filing of complaint and till the date of actual possession. He has also claimed compensation and costs of litigation.
(8) The opponents were served with the notice. They appeared and filed their written version. They specifically denied that opponents are guilty of deficiency in service. It is contended that the complaint is hopelessly time barred by limitation. The consumer complaint before this Commission is beyond the period of limitation. The complainants are guilty of delay and lapses. It is contended that 6 CC/14/285 the complainants and other people approached the opponents for group booking of flats in the month of January, 2008. It was agreed that the group shall form co-operative Housing Society and office bearers of the society shall initially act for all of its members while dealing with the opponents. Most of the members expressed their desire to raise loan from the Bank and Financial Institution for individual payment. After seeing the title document, Bank showed their willingness to sanction loan to the members of the society. Accordingly, Memorandum of Understanding dated 21/06/2008 was entered into between the parties. In view of Memorandum of Understanding dated 21/06/2008, land situated at Survey No.123 of Village Sus was initially acquired by the opponents for the development. Main intention behind entering into the Memorandum of Understanding with the said society was to create funds for the development of the said society. Hence, at least 25% discount was offered to all the members of the society purchasing flats/row- houses/twin bungalows in the said scheme.
(9) It is contended that the opponents immediately finalized the layout and building plan and submitted it for sanction. Initially, the plan was sanctioned by the Town Planning Authorities on 18/02/2009. The opponents immediately started development work on the site. The building project commenced thereafter with numerous meetings in the office of the opponents. The office bearers of the society would approved the plan partly and suggested changes from time to time. The architect was changed midway as the elevations were not acceptable to the office bearers of the society. As per Term No.17 of Memorandum of Understanding, possessions of respective flats were to be given to all members of the society within 18 months from 15/04/2008. Immediately after execution of said 7 CC/14/285 Memorandum of Understanding it is expected that one by one the members of the society shall approach the opponents for execution of agreement. This could have facilitated the bank to sanction loan for the members and expedite the work of construction. The society, namely, The Aarohi Co-op. Housing Society started certain disputes regarding sanction and revision of the construction plans. The sanction/revision of the building plans were absolutely as per Development Control Rules and in consonance with the provisions of Section-7 and 7-A of MOFA. On 28/08/2009 a new Government Resolution was passed and number of rules were changed pertaining to number of buildings permitted, the number of floors in each building and the number of flats on each floors. Size of ducts is also revised. The change in the rules happened twice. As such plans were revised twice. The revised N.A. order dated 26/11/2010 is filed separately. This resulted in changes in the agreement which was objected to by the Aarohi Co-op. Housing Society members till September 2010. Finally on 25/09/2010 in a meeting between promoters and office bearers of the Aarohi Co-op. Housing Society, it was explained that changes are due to Government Resolution and the promoters have no control over it. This delay in not accepting the new agreement resulted in agreements not being registered and banks are not disbursing the loan. The promoters borrowed the money from other sources to keep the construction work going. Due to such dispute raised by the society delay was caused. Members of the society including the complainants avoided to approach the opponents for execution of agreement. After many remainders agreement was executed on 26/05/2009. In early 2009 swine flu epidemic broke out in Pune and the Government Officers were busy whereby building sanctions were low on priority. In September 2009 State Elections were announced. Said 8 CC/14/285 announcement caused further delay as the Government Officers were deployed elsewhere. The complainants or his bankers have paid monetary consideration under the agreement on demand though at late stage. A part of total consideration is still due and payable by the complainants. The complainants are liable to pay the same at the time of handing over possession of the said flat. As per original understanding, the opponents agreed to hand over possession of the said flat to the complainants on or before 30/07/2010. However, possession was subject to terms mentioned in Clause 11 of the agreement. As per para 12 of the agreement, certain Force Majures conditions the possession of the flat was agreed to be delayed.
(10) It has been made mandatory upon the developers by the Government to obtain permission/NOC of Maharashtra Pollution Control Board as regards "Consent to establish" and "Consent to operate" the construction scheme. In addition, it was also made mandatory that in each excess construction scheme, Clearance Certificate from the Environment Department of the State Government was made mandatory and should be obtained before completion of any such scheme. Accordingly, opponents applied for and obtained such clearance from such Competent Authority. In the meantime, development work was going on with full speed. However, due to imposition of such restrictions, opponents forced to comply with the same which took one year time to apply for and obtain such clearance from the concerned Government Departments. In the meantime, proposed Regional Plan of the Town Planning, Pune was finalized and as per Government Notification, office of Collector, Pune has informed by its letter dated 14/12/2011 to concerned Sub-Divisional Officer to finalise the area of road 9 CC/14/285 widening, demarcate the same, take possession of the same and obtain TDR for the concerned developer. Such road has been planned through the subject land under the scheme. After receiving such notice from the office of S.D.O., opponents approached the said authority and showed their willingness to leave the area for road widening. After TDR passed, the Collector issued NOC to the opponents on 23/04/2012. Further task of Fire Department NOC, Lift NOC, water and electricity clearances were halted by the concerned departments without which no completion certificate is issued by the Town Planning Authority.
(11) It is contended that without such completion certificate, no physical possession of the flats/units can be handed over to the flat holders. It is contended that the construction of the said flat of the complainants has been completed on or before the due date of possession. Due to stringent provisions of law, no further clearances could be obtained for some time. The opponents will be allowed to hand over possession of the flat to the complainants on receipt of completion certificate from the concerned authority. For these reasons, opponents are not liable to pay interest/compensation as asked by the complainants. It is contended that what was agreed to be sold to the complainants are set out in unambiguous terms of the agreement executed in favour of the complainants. The opponents agreed to provide car parking space which is already in place. As per agreement, amenities are placed. The complainants have given consent for change of building layout plan. Changes carried out are as per provisions of Section 7A of MOFA. Service Tax has been made applicable by the Government to all the payments made after 01/07/2010. The opponents have collected the amount of Service Tax/VAT as per rules and not collected any extra 10 CC/14/285 amount from the complainants. The opponents were and are always ready to hand over possession of agreed flat to the complainants after receipt of remaining consideration. It is contended that the opponents are not liable to pay any amount of compensation to the complainants. Complaint is liable to be dismissed.
(12) During pendency of the complaint the opponents handed over possession of the Said Residential Unit to the complainants and complainants accepted the same. However, complainants have prayed for other reliefs as per agreement except possession of the Said Residential Unit.
(13) After hearing both sides and on going through the record following points arise for determination and we record our findings for the reasons given below :-
Sr. Points Findings
No.
1. Whether consumer complaint is : Yes
within limitation?
2. Whether complainants have : Yes, As per
proved that opponents are guilty final order.
of deficiency in service?
3. Whether complainants are entitled : As per final
for reliefs? If yes, to what extent? order.
4. What order? : As per final
order.
(14) To substantiate the consumer complaint, complainants have filed their affidavit of evidence and they have placed on record several documents, namely Agreement To Sale dated 26/05/2009, Sale 11 CC/14/285 Deed of land in question executed in favour of the opponents, the layout plan, 7/12 extract of land in question, Annexure G to the Agreement showing amenities to be provided to the flat purchasers, The Special Power of Attorney given by Kalyan Sukhdev Garad to opponent no.3, Index - 2 of the land in question, General Power of Attorney in favour of Anil Jain and Vaishali Jain on behalf of M/s.Suyojit Infrastructure Ltd., Special Power of attorney to Ashok Kanhailal Nahar executed by M/s.Suyojeet Infrastructure, receipts of payment made by the complainants, letter issued by Society in favour of the complainants.
(15) The opponents have filed Affidavit of Vijay Tukaram Raundal, Sole Proprietor of opponent no.1 and power of attorney holder of opponent no.3. Opponents have filed on record an application for getting environment clearance dated 24/09/2010, N.A. Order dated 26/11/2010, Consent from Maharashtra Pollution Control Board on 27/08/2013, copy of letter of Collector dated 14/12/2011, Environment Clearance Certificate dated 23/01/2012, NOC from the Collector regarding F.S.I. dated 23/04/2012, application for claiming part Occupancy Certificate from the Collector dated 03/04/2013, Consent to establish and Consent to operate from Maharashtra Pollution Control Board dated 27/08/2013, Structural Stability & Completion Certificate dated 22/10/2012.
(16) We heard advocates of the complainants and the opponents. On going through the documents on record it is crystal clear that the opponents had purchased the land bearing Survey Nos.123/1, 123/2, 123/3/1, 123/3/2, 123/4/2 and 123/6/2 at Village Sus, Taluka Mulshi, District Pune. The opponent no.2 had acquired development right in respect of the said land. The Opponent no.3 entered into agreement with the opponent nos.1 and 2 to develop the above land.
12CC/14/285 The complainants and other 165 members formed the society known as The Aarohi Co-operative Housing Society Ltd., which is registered as per the provisions of Maharashtra Co-operative Societies Act. The complainants are members of the Aarohi Co- operative Housing Society Ltd. They agreed to purchase the Said Residential Unit. The Complainants paid total consideration of Rs.18,72,258/-. The opponents agreed to sell Said Residential Unit to the complainants and executed registered Agreement to Sell dated 26/05/2009 wherein the opponents had agreed to handover the possession of the flat on or before 30th July, 2010. The complainants have given details of Sanction/clearance/approvals, status for the building Aarohi Co-operative Housing Society Ltd. It appears that N.A. order was issued on 18th February, 2009 for area 28058.34 sq.meters, revised N.A. area order of 35532 sq.meters issued on 26/11/2010, Certificate from MPCB was issued on 1st July, 2011. Letter issued by Collector to Sub-Divisional Office dated 14/12/2011, Environment Clearance Certificate was issued on 23/01/2012, NOC from Collector Office for FSI issued on 23rd April, 2012, Structural Stability Certificate issued dated 22nd October, 2012, 'Consent to Establish', 'Consent to Operate' from MPCB issued on 27th August, 2013, Partial Occupancy Certificate issued on 3rd July, 2014. The present complaint came to be filed in the year 2013. In spite of receiving partial occupancy certificate the opponents did not ask the complainants to take possession of the Said Residential Unit. The complainants have also established that the amenities mentioned in the agreement were not provided to the flat purchasers. According to agreement the opponents had agreed to provide one open car parking along with amenities like pipe gas for all apartments, row houses, twin bungalows, garbage chutes, water treatment plant, rain water harvesting, shopping complex, 13 CC/14/285 play area for children, one passenger lift and one service lift, religious hall, club house, two tennis courts, two basketball courts, one badminton court, swimming pool for adult and children, kids sitting area, party garden, multipurpose rooms with cards table, dining facilities, private theatre, gym, table tennis and pool table, one squash court, open parking for visitor, fencing for row houses and twin bungalows, open garden and pay area etc. Common amenities.
(17) The opponents have filed affidavit of evidence of Vijay Tukaram Raundal wherein he has mentioned several defenses for not handing over possession of the flat to the complainants. It is affirmed by the witness of the opponents in affidavit of evidence as well as in the written version that the Said Residential Unit was ready, but, due to certain statutory compliance the possession was not handed over to the complainants. So, it can be said that the opponents agreed to handover possession of the flat as per the contents of the agreement but due to certain defects the possession could not be handed over as per the agreement. It is also admitted that the complainants have paid the amount of consideration as per the demand made. It is to be noted here that the opponents finalised the layout and building plan and it was submitted to the Town Planning Department for sanction. Accordingly the authority has sanctioned it on 18/02/2009. As per the submissions of the opponents they started development work accordingly. Memorandum of Understanding was executed between the opponents and the Society. It was agreed to give possession within eighteen months from 15/04/2008. The main grievance of the opponents is that the society started certain dispute regarding sanction of revised construction plan. The revised plan was absolutely as per the Development Control Rules and in 14 CC/14/285 consonance with the provisions of Section 7 and 7A of the MOFA. It is submission of opponents in the written version to show that the plan was revised twice. The N.A. order shows that while sanctioning any N.A. Premises certain conditions were must. It is mandatory that the opponent no.3 - M/s.Suyojit Infrastructure Ltd. to obtain certificate from Maharashtra Pollution Control Board. It is proved that the opponents have obtained NOC from Maharashtra Pollution Control Board which is dated 01/07/2011. The consent was granted by Maharashtra Pollution Board by letter dated 01/07/2011. It shows from record that the Maharashtra Pollution Control Board issued certificate in the year 2011 and 2013. The Environment Clearance Certificate issued by the Government is on record dated 23/01/2012. It is not mentioned in the written version as to when opponent applied for getting clearance certificate and when clearance certificate was obtained from the Environment Department. The original plan was finalized by the Town Planning department as per Government notification dated 14/12/2011. The Collector issued his no objection certificate on 23/04/2012. Partial occupancy certificate was issued on 03/07/2014. At that time project was ready. In spite of this fact the opponents failed to handover possession of the flat to the complainants.
(18) It is the case of the opponents that the service tax has been made applicable by Government of Maharashtra to all payments made after 01/07/2010. The opponents have demanded amount of service tax from the complainants vide demand letter dated 14/03/2014. By demand letter the complainants have not paid service tax, amount of VAT, MSEB charges, interest on delayed payment, maintenance amount and balance amount of consideration. Therefore, the complainants are liable to pay the taxes and legal 15 CC/14/285 dues. The complainants are member of the Aarohi Co-operative Housing Society. The opponents have executed independent agreement with the complainants. It is established on record that the opponents have settled the dispute with most of the members and handed over possession of their respective flats. In written version the opponents have contended that they are and they were ready to handover possession of the booked flat to the complainants. In spite of assurance and promise there is inordinate delay in handing over possession of the flat to the complainants which amounts to deficiency in service.
(19) It is admitted by the complainants that they have taken possession of Said Residential Unit. However, the opponents have not handed over amenities and other reliefs as per the agreement. They did not get possession of their dream Row House in time. It is true that the builder can change the plan, but at that time, he has to follow all provisions of Section 7A of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963. At the time of change of plan, written consent of complainants was not obtained. It was for the opponents to effect changes with prior consent and knowledge of the complainants. Change in building plan without knowledge of the complainants is deficiency in service.
(20) On going through the agreement it reflects that the delivery of possession was delayed by the opponents. The complainants themselves were requesting for possession of the flat. If the opponents would have completed the construction and handed over possession of the Said Residential Unit to the complainants on or before 30/07/2010 then the complainants should not have required to file the present complaint. Because of acts of the opponents, 16 CC/14/285 complainants have suffered mental pain and agony. Certainly, they are entitled for compensation due to deficiency in service by the opponents.
(21) Complainants have already received possession of Said Residential Unit. However Car Parking with all amenities and other reliefs are not given to the complainants mentioned in the registered agreement. The complainants are entitled for Rs.5,00,000/- towards compensation for mental and physical harassment due to delay in handing over possession of the Said Residential Unit, for changes made by the opponents in building plan without consent of the complainants. The complainants have also suffered loss as they did not receive possession of their dream flat in time. In view of the above, we proceed to pass the following order:
ORDER
1. Consumer complaint is partly allowed.
2. It is hereby declared that the opponents are guilty of deficiency in service.
3. The opponents are hereby directed to provide all the amenities and facilities as mentioned in the agreement to the complainants within thirty days.
4. Opponents are jointly and severally directed to pay to the complainants interest @10% per annum on the amount of Rs.25,80,020/- received by them from the complainants from 30/07/2010 till 02/05/2014 for delay in handing over possession of the flat.17
CC/14/285
5. Opponents are jointly and severally directed to pay amount of Rs.5,00,000/- towards compensation for mental pain and agony to the complainants within thirty days from the date of this order, otherwise amount will carry interest @ 18% p.a. from the date of this order till realization of entire amount.
6. Opponents jointly and severally do pay amount of Rs.50,000/-
towards costs of this litigation to the complainants and shall bear their own costs.
7. Copies of the order be furnished to the parties.
Pronounced on 15th February, 2023.
[Justice S.P. Tavade] President [S.T. Barne] Judicial Member emp 18