State Consumer Disputes Redressal Commission
Mr. Ishwar Piraji Kalpatri vs M/S Merit Magnum Construction on 8 February, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Consumer Complaint No.CC/13/318
1.Mr.Ishwar Piraji Kalpatri
Since deceased represented through LR
Smt.Tarulata Ishwar Kalpatri
R/o.Kukreja Complex Building No.7A
1201, 12th floor, LBS Marg
Bhandup (West), Mumbai 400 078
2. Smt.Tarulata Ishwar Kalpatri
R/o.Kukreja Complex Building No.7A
1201, 12th floor, LBS Marg
Bhandup (West)
Mumbai 400 078 .....Complainants
Versus
1.M/s.Merit Magnum Construction
(Formerly known as Vimal Builders)
Everest House
Lower Ground Floor, Plot no.157
18th Road, Near Ambedkar Garden
Next to SBI, Chembur (East)
Mumbai 400 071
2. Mr.Kishore Nandlal Shah
Partner of opponent no.1
Everest House
Lower Ground Floor, Plot no.157
18th Road, Near Ambedkar Garden
Next to SBI, Chembur (East)
Mumbai 400 071
3. Mr.Nainesh Kishore Shah
Everest House
Lower Ground Floor, Plot no.157
18th Road, Near Ambedkar Garden
Next to SBI, Chembur (East)
Mumbai 400 071
4. Mr.Vimal Kishore Shah
Everest House
Lower Ground Floor, Plot no.157
18th Road, Near Ambedkar Garden
Next to SBI, Chembur (East) .........Opponents
Mumbai 400 071
1
BEFORE: Justice Mr.A.P.Bhangale, President
Mr.K.B.Gawali, Member
ORDER
Per - Hon'ble Mr.K.B.Gawali, Member
. This complaint is filed by the complainants alleging deficiency in service and unfair trade practice against the opponents, who are builders, for failure to deliver the possession of flat within the prescribed time limit as per the registered agreement of sale.
2. Brief facts of the complainants case are that the opponent namely, M/s.Merit Magnum Construction previously known as Vimal Builders, which is a partnership firm (herein after termed as 'builders') had taken up the project of construction of three apartment buildings known as (1) 'Petunia' (2) 'Daffodil' and (3) 'Marigold' in the project known as "Everest' 'Countryside" at village Kasarvadawli, Thane (West). That the complainants who are husband and wife had jointly booked one flat no.1506 having carpet area of 516 sq.ft. (48 sq. meters) in one of the buildings of 16th floors, known as "PETUNIA" and paid booking amount of Rs.51,000/- The Agreement to sale came to be executed on 29/09/2009 as per which total consideration of the said flat is Rs.18,79,077/- and the said amount is paid in full to the builders as per the stages of construction given in the agreement. It is submitted by the complainant that as per the Agreement to Sale, possession of the flat was to be handed over by January 2012 but the same was not delivered till the date of filing of complaint despite payments made as per demand, causing lot of hardships to them, such as, they had to shift in rented house in Mulund from 2010 onwards and further at Thane where they had to pay rent of Rs.10,000/- per month along with physical, mental stress, etc. to the complainants being the senior citizens.
23. It is further submitted by the complainants that the builders by their first letter dated 07/03/2011 informed that the possession of the said flat was expected to be delayed for 18-24 months due to the reasons, such as, unavailability of labourers, shortage of sand, lack of royalty permissions from the local government to move earth fillings etc., which are beyond their control. It was also informed that under such circumstances either to accept delay without claiming any compensation or to accept refund of the amount paid along with interest @ 18% p.a. Thereafter also by its different letters dated 21/07/2011, 30/07/2011, 090/9/2011, 13/09/2011, 07/10/2011 and 20/10/2011, the builders continued to pressurise the complainants for either to extend the date of possession or to accept refund of the amount for which the builder even returned the cheques through which the installments for 11th and 12th slab were paid on its demand and further informed for withholding the transactions also. Hence, on 24/10/2011 the complainants were compelled to accept the extension and accordingly extended date of possession only upto one year i.e. January 2013.
4. It was further contended by the complainants that on one hand the builders were insisting for extension of time limit to complete the construction and hand over possession, whereas on the other hand, they kept on demanding money as per the completion of different slabs from 10th to 16th i.e. last slab. That as per letter dated 07/10/2011 issued by the builders, 16th slab was completed as on 01/10/2011 itself. It is also submitted by the complainant that the stay order dated 23/09/2010 passed by the Hon'ble High Court in Writ Petition no.4830/2010 for extraction of sand, on the basis of which opponents/builders contended to have faced unavailability of sand, was also vacated on 26/10/2010 itself. That the Government Of Maharashtra Resolution regarding the policy of excavation of sand was also issued on later date i.e.12/03/2013.
35. As regards labour problem, the builders had not produced on record any material in support of its contention. Thus, it was contended that there was no ground to the builders to extend time limit for construction of the said building and hand over possession of the flat in question. However, with a malafide intention the builders pressurised the complainants to accept refund of the amount paid so that they can sell the said flat to a third party for higher rate that is to earn more profit.
6. It is further submitted that though the builders completed the construction and obtained occupancy certificate from Municipal Corporation, Thane on 27/03/2015, the possession was handed over on 22/09/2015 i.e. after six months, that too after heavy persuasion. During the pendency of this complaint, the complainant no.1 expired on 06/07/2015 and his legal heirs have also been brought on record who have relinquished their rights in the disputed flat in favour of complainant no.2, namely, Tarulata, wife of deceased complainant no.1.
7. Thus, with all these allegations the present complaint is filed seeking directions to hold the Opponents/builders as deficient in service and unfair trade practice, to hand over possession of the flat in question, to restrain opponents/builders from creating any third party interest, to pay each of the complainants a compensation of Rs.10 lakhs towards mental agony, Rs.2 lakhs towards costs of litigation and also to pay interest @ 18% p.a. on the amount of Rs.18,41,495/- from 01/02/2012 till the date of actual handing over the possession of the said flat.
8. In support of the complaint the complainants have submitted the various documents, such as, Agreement to sale, correspondence made with the builders, medical papers of treatment of complainant no.1, photographs of the construction work of the building in question, evidence, affidavit of complainants etc. 4
9. The builders appeared before this Commission and resisted the claim of the complainants by way of their written version. At the outset, it is submitted that the complaint is barred by limitation, hence, it requires to be dismissed. It is further submitted that the builders have taken utmost care to ensure that the project is completed on priority basis and the same was nearly completed on the date of filing of written version. It is submitted that the shortage of sand was compounded by the orders of Hon'ble High Court in Writ Petition no.4830 of 2010 and Hon'ble Supreme Court in SLP No.19628-19629 0f 2009 and by its ban and regulating sand quarrying and supply of sand leading to acute shortage and availability of sand in the open market, adversely affecting construction activities of the builders. It was therefore informed to the complainants that the delay of 18-24 months was expected for completion of the building and for handing over possession of the said flat. It is also submitted that there was shortage of labour supply on account of agitation of a particular political party for objection in engagement of labourers/workmen from the States of Uttar Pradesh and Bihar and on account of these labourers being driven out of Maharashtra, directly affected the availability/shortage of work force for building industry in Thane and there was also non availability of steel, cement and other building material including water and, therefore, as per the clauses no.15 and 16 of the Agreement to sale dated 29/09/2009, the builder can get the extension on the basis of the aforesaid reasons which were beyond its control. This fact was also informed from time to time to the complainants for extending the time limit of completion of construction and handing over possession and they were also given an option to accept refund of the amount paid by them with interest @ 18% p.a. That finally the complainants agreed only to give extension of one year with a view to exploit the builders. It is therefore contended that there was no deficiency in service or unfair trade practice on their part as alleged by the complainants 5 and the complaint filed by the complainants is baseless and the same deserves to be dismissed with costs.
10. In support of their contention the opponents/builders have submitted the Government of Maharashtra Resolution dated 12/03/2013, evidence affidavit and other correspondence made by it with the complainants etc.
11. This complaint came to be finally heard on 01/2/2017. Advocate Mr.Uday B. Wavikar for the complainant and Advocate Ms.Flora Jain i/b.Tushar Goradia for the opponents/builders were present. We heard them at length finally and matter came to be reserved for orders.
12. We have carefully considered the record placed before us and also thoughtfully considered the arguments advanced by learned counsel for both the parties. We have framed following three major issues which arise for our determination. We have also given our findings against each of the issues on the basis of the reasons given there under:-
Sr.No. Issues Finding
1 Whether the complaint is barred by No
limitation?
2 Whether alleged deficiency in service and Yes
unfair trade practice is proved by the
complainant?
3 Whether complainant is entitled for the As per final
compensation as claimed in the complaint? order.
Reasons:-
As to issue no.1:- Opponents/builders have contended that complaint is time barred and, hence, deserves to be dismissed. However, there is no explanation given to that effect. Admittedly, as per Agreement to sale the possession of the flat in question was to be handed over by January 2012 6 and further as per the agreed extension by the complainants vide letter dated 24/10/2011, the possession was to be delivered by January 2013. However, admittedly the possession was not delivered even after the said extended period of January 2013 but the same was given on much later date i.e. 22/09/2015. And hence, the complainants filed the consumer complaint on 17/08/2013. Therefore, the date of cause of action for filing of the complaint can be taken as January 2013 and the complaint being filed on 17/08/2013, the same is well within limitation period. We have therefore given our finding as to issue no.1 in negative.
As to issue no.2:- Admittedly, as per the registered Agreement to sale dated 29/09/2009, the date of delivery of possession of the flat in question was January 2012. However, the builders failed to deliver the possession as agreed and for the first time by its letter dated 07/03/2011 informed the complainants that there would be delay of 18-24 months for delivery of possession of the flat quoting the reasons as unavailability of labourers, shortage of sand and lack of permissions from the Local Government to move earth fillings etc., which are beyond its control. The learned counsel Ms.Flora Jain appearing for builders, submitted that as per the clauses nos.15 & 16 of the Agreement to sale the builders are entitled for reasonable extension of time for delivery of possession on the ground of non availability of steel, cement and other building material, which are beyond the control of the builders. She further submitted that there was 'stay' for some time for an extraction of sand as issued by orders of Hon'ble High Court in Writ Petition no.4830 of 2010, PIL 116/2011 and PIL 116/2012 and Hon'ble Supreme Court in SLP No.19628-19629 0f 2009. That the Government of Maharashtra also by its notification dated 12/03/2013 regulated sand quarrying, which affected the availability of sand in open market. She also submitted that there was also labour problem. Thus, learned counsel Ms.Flora Jain contended that the builders have acted as per the agreement and there was no any deficiency in service or unfair trade 7 practice as alleged by the complainants.
Per quantra, the learned counsel Mr.Wavikar for the complainant submitted that the 'stay order' of extraction of sand issued by Hon'ble High Court on 23/09/2010 was vacated on 26/10/2010. Secondly, the Government resolution regulating the extraction of sand was issued on much later date i.e.12/03/2013 and hence, neither the stay order issued by Hon'ble High Court nor the Government resolution affected the availability of sand in the market. The Learned counsel Mr.Wavikar further pointed out that the construction of the said building (Petunia) was never stopped and the builders went on demanding the installments towards consideration of flat to the complainants on completing the number of slabs. That the builders have also not justified the shortage of labour. He thus contended that the builders have just to take disadvantage of clauses nos.15 & 16 of the said Agreement to sale, tried to pressurise the complainants for extending the period as agreed for delivery of possession to avoid payment of compensation and also with a malafide intention to create the situation for the complainants to accept the refund of consideration of the flat with interest so that the said flat can be sold to a third party on higher rate. He therefore submitted that the opponents/builders have committed both deficiency in service and unfair trade practice.
We find much force in the argument as advanced by Mr.Wavikar for complainant. The builders have totally failed to justify reasons for delay in completing the construction and handing over the possession of flat to the complainant even within extended period i.e. January 2013. It is also interesting to note that on the one hand the builder took a stand that due to reasons of unavailability of labourers, sand and other building materials, stating the same as beyond their control, there was a delay in completing the said building and on the other hand, he went on demanding the installments towards the consideration of flat by completing the total slabs of the said 8 building by 01/10/2011.
From the correspondence made by the opponents/builders with the complainants it reveals that from 6th June 2011 to 1st October 2011 i.e. within a period of four months 9 to 16 slabs of the said building were completed. The builders themselves have made contradictory statement in their written version that the construction for the said project was going on at full speed when they faced with acute shortage of sand availability. Thus, it can be concluded that the delay caused in delivery of possession of the flat to the complainants has absolutely no proper justification as put forth by the builders. They have made a futile attempt to cover up the said delay under clauses nos.15 and 16 of the Agreement to sale. In fact, as per the provisions of section 3(2)(i) of the MOFA Act, the builders ought to have handed over possession of the said flat within the time limit as set out in the agreement or at the most, before the extended date by the complainants i.e. January 2013. It is thus apparently clear that the builders have committed deficiency in service.
As regards the allegation of unfair trade practice also there is quite a good deal of substance. As contended by learned Counsel Mr.Wavikar and which has also been revealed from the correspondence made by the opponents/builders through their letters dated 07/03/2011, 21/07/2011, 30/07/2011, 09/09/2011, 13/09/2011, 07/10/2011 and 20/10/2011, they have tried to put constant pressure on the complainants for either to accept the delay without claiming any compensation or to accept refund of the amount paid by him for the said flat, which itself amounts to unfair trade practice.
Thus, it is evident that both the allegations of deficiency in service and unfair trade practice on the part of opponents/builders are proved. We have therefore given our findings in respect of this issue as in affirmative.
As to issue no.3:- As per the prayers made in the complaint the complainants have sought directions to the opponents/ builders inter alia for 9 the immediate delivery of possession and for not creating any third party interest in respect of the flat in question. However, admittedly, the complainants have already received the possession of the flat on 22/09/2015 i.e. during the pendency of the complaint and, hence, these two prayers now needs no consideration.
As regards other prayers, specially, interest as claimed by the complainants @ 18% p.a. on the amount of consideration i.e. Rs.18,41,495/- from 01/02/2012, admittedly, though as per the agreement the possession was to be handed over by January 2012, the complainants have extended the time limit by one year i.e. upto January 2013. Hence, the complainant is entitled to receive the amount of interest at reasonable rate w.e.f. 01/02/2013 and not from 01/02/2012.
Secondly, the complainant is also entitled to receive reasonable amount of compensation towards mental and physical harassment along with costs of litigation.
It is to be made clear that during the pendency of complaint the complainant no.1 namely, Ishwar Piraji Kalpatri died on 06/07/2015 leaving behind his wife Tarulata, who is complainant no.2 in the present case and one son and three daughters. That the other legal heirs i.e. one son and three daughters have relinquished their rights in this flat, in favour of complainant no.2 by way of affidavit and, therefore, now the complainant no.2 is alone both in the capacity of legal heir of the complainant no.1 and in the capacity of complainant no.2.
13. In view of the aforesaid facts and our observations we are inclined to allow the complaint partly and, accordingly, pass the following order:-
ORDER (1) Consumer complaint is partly allowed.
(2) The opponents/builders are directed to pay to the complainant jointly and severally the amount of interest @ 9% p.a. on the amount of 10 Rs.18,41,495/- (Rupees eighteen lakhs forty one thousand four hundred ninety five only) w.e.f. 01/02/2013 till the date of possession i.e. 22/09/2015 within a period of 30 days from the date of receipt of this order, failing which they shall pay enhanced rate of interest @ 12% p.a. on the entire unpaid amount till realisation. (3) The opponents/builders are also directed to pay to the complainant jointly and severally a compensation of Rs.1,00,000/- (Rupee one lakh) towards mental and physical harassment along with Rs.25,000/- (Rupees Twenty five thousand only) as costs of the complaint within a period of 30 days from the date of receipt of this order.
(4) Copies of the order be furnished to the parties.
Pronounced on 8th February, 2017.
[JUSTICE A.P.BHANGALE] PRESIDENT [K.B.GAWALI] MEMBER Ms 11