State Consumer Disputes Redressal Commission
Priyabala V Shah vs Montag Infastructure Private Ltd on 8 September, 2023
Details DD MM YYYY
Date of Judgment 08 09 2023
Date of Filing 08 08 2018
Duration 00 01 05
IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
STATE OF GUJARAT
COURT NO. 4
CONSUMER COMPLAINT NO. 138 OF 2018
[1]. PRIYABALA VINODKUMAR SHAH
[2]. VINODKUMAR SHAH
(Through duly Constituted Power of Attorney Holder Navneet Singh)
72, Kenmore Avenue, Harrow, Middlesex, HA38PL,
UK.
....Complainant
Versus
MONTAG INFRASTRUTURE PRIVATE LIMITED
(Head Office: 27/29, Tirupati Centre,
S V Road, Shantikunj (W), Mumbai- 400054
Corporate Office: 101, First Floor, SH Ram, Plot No. A-20,
18-A Road, Khar (W), Mumbai.400052
Registered Office: 104, Silver Oak, Amrutha Valley,
Road No. 12, Banjara Hills, Hyderabad. 500034 .)
Montag Villa, Survey No. 196 & 182/A,
Ganta Vally Village, Farooq Nagar Mandal,
Shadnagar, Hydrabad. 509216
.... Opposite Party
Coram: Hon'ble Mr. R N Mehta, Member.
Appearance: Mr. Digant Kakkad, Ld. Advocate for Complainant.
Opponent Served but absent.
RNM CC1382018 Page 1 of 6(Order by Mr. R N Mehta) [1]. The complainants above named have filed this complaint under the provisions of The Consumer Protection Act, 1986 (herein after referred as "The Act" or "Act") alleging therein deficiency in service and also Unfair Trade Practice on the part of the opponent herein and prayed for relief as under:
(a). Your honour may be pleased to admit this complaint;
(b). Your Honour may be pleased to direct the opponent to repay the sum of Rs. 29,16,000/-
@ 18 % interest calculating from the year 26/4/2013 till the date the award amount is realised fully; plus Rs.250000/- as cost of visiting Gujarat from London; plus Rs.100000/- unjustifiably charged from the complainants.
(c). Your Honour may be pleased to direct the opponent to compensate the complainants for facing acute financial loss, undergoing mental stress and agony by paying a sum of Rs.10,00,000/-.
(d). To pay the litigation fees in the tune of Rs. 2,00,000/- for hiring services of an advocate and serving legal fees.
[2]. It is the case of the complainant that complainants are residing in UK but since they are old aged person and natives of Gujarat were interested to buy a house in Dwarka. It is stated that the opponent is indulged in construction business and have undertaken development projects for flats and fully furnished bungalow. The opponent had undertaken one such project at Dwarka and it is known as "Dwarkadheesh City" at Bardiya Village, Taluka:Dwarka, Dist:
Jamnagar. It is stated that the opponent had canvassed for the scheme through various media sources including TV advertisement. The complainants wanted to invest their hard money for the house at Dwarka and therefore communicated with in-charge project consultant where he described various salient features of the scheme. The said project consultant drew the pinkish picture about the project and their ability to complete within prescribed period. The complainants therefore booked Villa No. 28 located at R.S. 91 paiki 2 having total area of about 2416 Sq. Feet of which super built area would be 1150 sq. feet and possession will be delivered within 18 months. The price of the said Villa was mutually agreed upon at Rs. 29,16,000/-.
[3]. The complainants stated that they transferred GBP 1000/- on 22/4/2013, GBP 20000/- on 26/4/2013 and GBP 15,000/- on 1/5/2013 and completed his financial obligation and the opponent issued receipt vouchers for the same. It is also stated that an agreement to sale was executed on 26/4/2013 wherein aforesaid payment acknowledged and also mentioned therein RNM CC1382018 Page 2 of 6 that possession will be handed over within 18 months therefrom. The complainants alleged that despite the prescribed period was over, the opponent did not offered possession though entire agreed amount was paid to them. The complainants made several calls and tried to contact the opponent but did not get any response. It is alleged in the complaint that after about 42 months the opponent wrote letter to the complainant and informed that the opponent will handover possession of Villa No.28 admeasuring 1350 Sq Feet (super built up area) situated at R. S No. 91 - of Village Bardiya within 30 days from November 15, 2016 but without boundary wall, gate, land scaping, car parking space etc. when it came to the knowledge of the complainants that the opponent did not kept its promise even for the construction and amenities to be provided, the complainants flew down from London to India and reached to Dwarka where it was found that Villa was not constructed as per Scheme, it was not even constructed on the Revenue Survey Number where it was promised (location was changed) and without amenities and facilities promised at the time of entering into agreement for sale. The construction area that was promised was not given. The complainants state that despite all these, the opponent asked the complainants to pay additional Rs.1,00,000/- towards expenses. The opponent also threatened the complainants that if Sale Deed is not executed within period prescribed, the entire amount paid will be forfeited. The complainants then appointed advocates to deal with the situation and issued legal notice dated 28/6/2018 to the opponent and called upon to refund the entire amount together with interest at the rate of 18 % p.a. and also to pay compensation etc. The said notice has been received by the opponent but neither paid refund nor gave possession of said Villa and therefore this complaint has been filed. The complainants have placed on record copy of Agreement to Sale, receipts acknowledging payments, copy of brochure of the scheme, Copy of opponent's letter dt.10/11/2016, Copy of notice issued by Complainant's advocate, Copy of Police Complaint registered by complainant, Copy of Title report for project city and copy of Power of attorney.
[4]. The complaint was admitted for adjudication under the provisions of The Act vides order dated 17/12/2018 and notice was issued to the opponent. The record shows that notice issued initially returned un-served and therefore the complainant provided new address and fresh notice was requested which was granted. This Commission issued notice returnable on 26/4/2022 and postal certificate shows that notice has been duly served. This Commission has observed that since notice has been served sufficient opportunities were given to file its version but neither appeared nor filed reply. The complainant therefore moved an application to proceed ex-parte against the opponent and this Commission after waiting for sufficient period passed order dated 4/8/2022 to proceed Ex-parte against the opponent. The complainants have filed evidence affidavit on 21/9/2022 and thereafter submitted written submissions.RNM CC1382018 Page 3 of 6
[5]. Heard Mr. Digant Kakkad for the complainant. He has drawn my attention to copy of agreement to sale which is at page 19 and referred that the opponent agreed to sale Villa 28, situated at R S No. 91-P/2 in Dwarkadheesh City, Bardiya Village, Dwarka having super built up area admeasuring 1150 Sq. Feet on a plot measuring 2416 Sq feet. It is mentioned therein that price is fixed at Rs.2916000/-. He drew my attention where promise was given to deliver possession within 18 months from the date of down payment. It is also mentioned that opponent will deliver possession with facilities and amenities as per schedule shown in brochure. He also submitted that in case of delay in payment, buyer has to pay interest @ 1.5 % per month (18 % p.a.) to opponent. Mr. Kakkad submitted in this case, it is admitted position that complainant had paid entire amount Rs.2916000/- in due course of time and therefore there was no other obligation for payment on the part of the complainant. He submitted that page 49 is the letter dated 10th November 2016 written by the opponent to complainant for handing over the possession itself suggests that construction was not completed within 18 months as promised. It is also mentioned in the said letter that complainants have paid full amount. Mr. Kakkad shown copy of notice which was issued by the complainants for refund of money. Therefore, he submits that it is clear case of deficiency in service and asking more amounts is nothing but Unfair trade practice as the opponent had no intention to deliver the property at agreed price. According to him, the complainants are entitle to refund of amount with interest and cost as prayed.
[6]. I have perused complaint, documents attached to complaint and also considered affidavit in evidence. It is fact appearing from the record that the opponent has not filed any reply in this case and this Commission had passed order for Ex-parte proceedings. Considering the provisions of the Act, in absence of any version from the opponent or appearance, the Commission can proceed with the matter on the basis of documents brought to its notice by the complainants. Hence, this Commission has enough power to adjudicate this complaint in absence of opponent. Regarding Pecuniary jurisdiction, the relief claims exceeds Rs. 20 lacs and below the upper limit and therefore competent jurisdiction. Since the subject property was to be delivered at Dwarka which is located within territorial jurisdiction. The allegations against the opponent are pertaining to performance of its part of duty as developer and builder and therefore this Commission has subjective jurisdiction also.
[7]. The complainants main allegation is that the developer has not completed constructed within 18 months from the date of payment. It is not in dispute that complainants have paid Rs.2916000/- in May 2013 and therefore the opponent is duty bound to complete construction on or before December 2014. There is nothing on record to suggest that construction was completed and offer of possession was made prior to January 2015. The letter of opponent dated 10/11/2016 reads as under:RNM CC1382018 Page 4 of 6
"Dear Mr. Vinod Shah, Sub: Intimation for Physical Possession.
This letter is with reference to Villa No. 28 situated at R S No.91-P/2, Bardiya Village, Taluka- Dwarka , Jamnagar District and known as Dwarkadheesh City having area admeasuring about 1350 sq feet super built.
1. This is to confirm that we will be handing over the vacant and peaceful possession of Villa- No. 28 and admeasuring 1350 Sq. Feet super built up usable area along with boundary wall, Gate, Land Scaping, Car Parking Space to you in 30 days of time from 15th November 2016.
2. XXXXXX
3. YYYYYY
4. You paid full amount.
Thanking you, Yours faithfully, For, Montag Infrastructure Pvt Ltd Sd/- All Ahmed CEO.
From the above it is clear that the opponent has offered possession only after November 2016 and therefore the allegation of the complainant regarding delayed construction is proved beyond doubt. Now the complainants have pleaded in complaint in paragraph 16 that the opponent has issued legal notice to complainants in June 2017 and called upon the complainant to accept possession. The complainants have stated that they flew to India in January 2017 and found that construction of Villa was not as per scheme, it was not constructed at site which was suggested, area offered were not as per agreement etc. The notice issued by opponent is attached with the evidence affidavit of complainant. Relevant paragraphs of the said notice read as under:
4. My client states that you will also recall that my client had informed you that you have to get the OCI documents since you were holding a British Passport to which you had confirmed that you have both the documents.
5. My client further states that when you were informed to send the whatsapp image of the OCI document, so that the process could be started from my client's end, it was informed by you to my client that my client needs to send some person at the hotel to collect the same. My client therefore, instructed his office boy to collect the documents from the hotel where you were staying, which was arranged by my client. However, when the said office boy visited the hotel, you Mr. Shah informed that you do not have the OCI document. My client once again calls upon you to kindly furnish the OCI document at the earliest.
6. Xxxx
7. Yyyyy
8. My client further states that off late, for the reasons best known to you, you have been insisting that my client should refund the amount which has been paid by you. My client most humbly states that refunding will not be possible since the villa is complete in all respects as per the agreement and your satisfaction. You are therefore required to take the possession by completing the requisite formalities.
9. In the event, you still insist that you want the money refunded, then in that case, my clients have instructed me to inform you that it can only be done once the said complete villa is purchased by some other customer and he makes the payment. However, my client has also instructed me to inform you that there will be no time limit set for the sale of the said Villa, since my clients will have to now hunt for new buyers.RNM CC1382018 Page 5 of 6
All this correspondence suggests that there was some requirement of document for execution of sale deed. There is nothing on record to suggest that complainants were ever informed that such OCI documents would be necessary for execution of sale deed. The opponent is developer and have many other NRI clients and therefore he must be aware of the same but before entering into agreement it ought to have been brought to the notice of the complainant so that they could have made informed decision whether to enter into agreement or not. It is also certain from the communication that complainant had asked for refund when they found that they are unable to provide certain documents. The complainants have issued notice in June 2018 which clearly suggests that till that date the opponent has not refunded the amount paid by the complainant. I cannot ignore that there was delay in construction and therefore it cannot insist that complainant should accept possession on the same terms. The complainants have paid GBP 36000 to pay Rs.2916000/- therefore exchange rate was around 1 GBP= 81 Rs. and when complaint was filed it was Rs.90 and today it is Rs.103/- The opponent did not appeared and not informed whether he sold out villa or not. After these many years, it is not believable that the said villa was not sold out to anyone. Considering rising real estate market and price appreciation I think it is not unjustified demand of interest rate of 18 % p.a. However I am not inclined to award any amount for cost of flying from London to India because otherwise also they have to come to India to execute sale deed. So far stress and mental agony is concerned, I believe that higher rate of interest will take care of and therefore not allowing any further claim. The complainant is entitled to have cost of litigation which would be around Rs. 25000/- in this case. I therefore pass following order.
ORDER The Complaint No. 138 of 2018 is partly allowed.
The opponent is directed to pay to the complainant the sum of Rs. 29,16,000/- together with interest at the rate of 18 % P.a. from the date of complaint till realisation. The opponent is also directed to pay litigation cost of Rs.25000/- to the complainant. The above order is to be complied within 60 days from the copy of receipt of order failing which the opponent is liable to pay addition 2 % interest p.a. from the date of default. The office is directed to supply certified copy of this order to parties free of cost at earliest. Pronounced in open Court today on this 8th day of September 2023.
Mr. R N Mehta Presiding Member.RNM CC1382018 Page 6 of 6