State Consumer Disputes Redressal Commission
Mr. Daulat Alwani vs M/S. Kayjay Constructions Co. Pvt. Ltd, on 23 January, 2015
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI GOA C.C. No. 17/2014 Mr. Daulat Alwani Son of late Mr. Ramchand V. Alwani Aged 44 years, Resident of 301, 8/F Everwell Gardens, 1 Sheung Hong St. Homitin, Kln, Hong-Kong Represented herein through his Power of Attorney, Mr. Nandu Asrani, Son of Purushottam Asrani, Married, Aged 53 years, businessman, Resident of Spencer Cross Road, Bloomsbury Apts, Frazer Town, Bangalore 560 042. ... Complainant v/s 1.M/s. Kayjay Constructions Co. Pvt. Ltd, A company incorporated under the Indian Companies Act, 1956, having its Registered office at No. 5, National House, 27, Raghunath Dadajee Street, Fort, Mumbai 400 001 Represented by its Managing Director Mr. Haresh Dyaram Kotwani ... Opposite Party C.C. No. 18/2014 Mr. Ramesh Melwani Son of Mr. Udharam Thanwerdas Melwani Aged 69 years, Resident of Unit B, 27th Floor, Block 2, Elegant Terrace, No. 36 Conduit Rd, Mid Levels, Hong Kong Represented herein through his Power of Attorney, Mr. Nandu Asrani, Son of Purushottam Asrani, Married, Aged 53 years, businessman, Resident of Spencer Cross Road, Bloomsbury Apts, Frazer Town, Bangalore 560 042. ... Complainant 1.M/s. Kayjay Constructions Co. Pvt. Ltd, A company incorporated under the Indian Companies Act, 1956, having its Registered office at No. 5, National House, 27, Raghunath Dadajee Street, Fort, Mumbai 400 001 Represented by its Managing Director Mr. Haresh Dyaram Kotwani ... Opposite Party C.C. No. 19/2014 Mr. Vinod Talreja Son of Mr. Jethanand Talreja Aged 50 years, Resident of Villa 21A, Street 2 Hattan, 3 Emirates Hills, Dubai U.A.E. Represented herein through his Power of Attorney, Mr. Nandu Asrani, Son of Purushottam Asrani, Married, Aged 53 years, businessman, Resident of Spencer Cross Road, Bloomsbury Apts, Frazer Town, Bangalore 560 042. ... Complainant 1.M/s. Kayjay Constructions Co. Pvt. Ltd, A company incorporated under the Indian Companies Act, 1956, having its Registered office at No. 5, National House, 27, Raghunath Dadajee Street, Fort, Mumbai 400 001 Represented by its Managing Director Mr. Haresh Dyaram Kotwani ... Opposite Party C.C. No. 20/2014 Mr. Lakhpat Kalwani Son of Mr. Arjundas Kalwani Aged 46 years, Resident of 301 A1 Safa Bldg, Bur Dubai, Dubai U.A.E. Represented herein through his Power of Attorney, Mr. Nandu Asrani, Son of Purushottam Asrani, Married, Aged 53 years, businessman, Resident of Spencer Cross Road, Bloomsbury Apts, Frazer Town, Bangalore 560 042. ... Complainant 1.M/s. Kayjay Constructions Co. Pvt. Ltd, A company incorporated under the Indian Companies Act, 1956, having its Registered office at No. 5, National House, 27, Raghunath Dadajee Street, Fort, Mumbai 400 001 Represented by its Managing Director Mr. Haresh Dyaram Kotwani ... Opposite Party C.C. No. 21/2014 Mr. Ramesh Moorjani Son of Dharamdas Bhugromal Alwani Aged 53 years, Resident of 502, ADCB Residential Bldg., Bur Dubai, Dubai. U.A.E. Represented herein through his Power of Attorney, Mr. Nandu Asrani, Son of Purushottam Asrani, Married, Aged 53 years, businessman, Resident of Spencer Cross Road, Bloomsbury Apts, Frazer Town, Bangalore 560 042. ... Complainant 1.M/s. Kayjay Constructions Co. Pvt. Ltd, A company incorporated under the Indian Companies Act, 1956, having its Registered office at No. 5, National House, 27, Raghunath Dadajee Street, Fort, Mumbai 400 001 Represented by its Managing Director Mr. Haresh Dyaram Kotwani ... Opposite Party Complainants are represented by Adv. Shri. V.K. Daniel. OP is represented by Adv. Shri. C.F. de Sousa. Coram: Shri. Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 23/01/2015 ORDER
[ Per Justice Shri. N. A. Britto, President] These consumer complaints can be conveniently disposed off by this common order, as the facts are almost common, and so also the law applicable thereto.
2. The complainants are the residents of either Hongkong or Dubai, and, complainant Ramesh Melwani appears to be a foreign national. The complainants have filed these complaints through their power of attorney Shri. Nandu Asrani. The complaints are filed seeking an order directing the OP to handover possession of the apartments allotted to them, for execution of sale deeds and for compensation.
3. The OP is a Company and Haresh D. Kotwani is its Managing Director. The OP has put up a project known as Joia do Mar consisting of four villas and three apartments blocks, namely A, B, and C and one studio apartment block D, each consisting of twelve units, and the OP has sold to the complainants the apartments or flats by allotment letters of different dates for different sums and the receipts for payments made, were issued on 19/3/09. As per the OP, the said allotment letters is a contract entered into between the complainants and OP for the sale of flats. Block A was completed on or about 20/2/08 and Block C was completed on or about 13/3/08. The dates of allotment letters, the apartments booked, the payments made, are tabulated herein below for easy reference and are as follows:-
C.C. No. and name of Complainant Dates of Power of attorney Flat Nos.
Date of letters of allotment Amounts paid Date of receipts Date of legal notices CC 17/14 Daulat Alwani 5/6/12 C-11 4/1/07 18,49,650/-
1,30,000/-
35,000/-
5,000/-
19/3/09 15/1/14 CC 18/14 Ramesh Melwani 19/6/12 B-24 13/12/06 24,39,558/-
2,60,000/-
40,000/-
19/3/09 15/1/14 CC 19/14 Vinod Talreja 14/6/12 C-12 06/10/07 22,40,700/-
65,000/-
40,000/-
25,000/-
19/3/09 15/1/14 CC 20/14 Lakhpat Kalwani 30/5/12 A-13 13/12/06 18,59,102/-
65,000/-
35,000/-
19/3/09 15/1/14 CC 21/14 Ramesh Moorjani 30/5/12 A-11 25/3/07 12,36,470/-
40,000/-
25,000/-
1,00,000/-
19/3/09 15/1/14
4. The Complainants say that the said Nandu Asrani and Ramesh Moorjani (complainant in C.C. No. 21/14) were common friends and were known to Haresh D. Kotwani, the Managing Director of the OP. According to the complainants, as per the discussions held between the complainants, the said Ramesh Moorjani and the Managing Director of the OP, that the complainants had agreed to purchase the said apartments; and as far as complainant Ramesh Moorjani is concerned, the said complainant has stated that he, the complainant, had agreed to purchase the apartments pursuant to the discussions held between him (the complainant) and the Managing Director of the OP, the said Haresh D. Kotwani. The OP has stated that Shri. Nandu Asrani, the attorney of the complainants and the complainant Shri. Ramesh Moorjani are both in the business of real estate investments and have a group of investors alongwith whom they also invest in upcoming projects and that they also act as real state brokers and approach developers for recommending their projects to the investors and charge hefty brokerage commissions.
We are inclined to believe that the OP sold the apartment in question to the complainants and complainants purchased the same through the said Asrani and Ramesh Moorjani without knowing much about the project itself. The OP has also stated that the complainants had no problem with the OP and these present complaints have been filed at the instigation of the said Nandu Asrani. Although complainant Ramesh Moorjani and attorney Shri. Asrani were informed on or about 27/03/11 by the Director of the OP, Khush Kotwani, that the project was completed three years prior to it, one does not know whether the said information was conveyed to the other complainants by the attorney of the complainants Shri. Nandu Asrani or for that matter the complainant Ramesh Moorjani.
Infact, complainant Ramesh Moorjani informed the Managing Director of the OP by letter dated 21/06/07 (copy at page 25) that most of his customers (referring to other complainants) were straight forward persons and had to be, sometimes handled very carefully and with kids gloves, and, some of them had bought (the apartments) because of continuous forcing and pushing and some bought only on his word and friendship.
5. Be that as it may, the OP contested the complaints stating that the complaints could not be filed through the attorney Shri. Nandu Asrani as he does not have any personal knowledge of the transaction between the complainant and OP; that this State Commission lacked pecuniary jurisdiction; that the complaints are barred by limitation as the occupancy certificates were obtained by the OP in February/March 2008 and the attorney of the complainants was informed by letter dated 6/5/08 that the apartments were completed and ready for possession and the attorney had communicated the same to the complainant Ramesh Moorjani by letter dated 7/7/08 stating that the apartments were ready for possession; and that the complainants are not consumers as the complainants had booked the said apartments for resale to make profits.
6. When the complaints were taken up for final arguments on or about 21/10/14, a statement was made on behalf of the OP, by their lr. adv. Shri. C.F. de Sousa that the OP has always been willing to handover the possession of the apartments in question right from the year 2008 till date. The complainants through their lr. adv. Shri. V.K. Daniel, accepted the offer made on behalf of the OP, and agreed to take over the possession of the apartments in question. No doubt, the complainants as well as the OP made the said offer without prejudice to their rights and contentions in these consumer complaints, and accordingly, the possession of the subject apartments were handed over to the respective complainants on 8/11/14 and since then the complainants are in possession of apartments in question.
7. Thereafter, the problem was as regards execution of the sale deed for which the parties took some time to sort out the issue but could not because the complainants insist that the sale deed should be with proportionate undivided right.
Here it may be noted, that there has never been a demand made by the complainants to the OP to handover the possession of the apartments in question, and, first such demand or request came from the complainants only by virtue of legal notice sent by the complainants through their Adv. Shri. V.K. Daniel, which we are also inclined to believe, was sent by the complainants, on instructions of the said attorney Shri. Nandu Asrani, after the complainants gave powers of attorney to him.
Although the OP states at one stage that there were discussions held between the complainants and the said Ramesh Moorjani (complainant in CC No. 21/14) and the Managing Director of the OP, at another stage, the O.P. states that the complainants do not possess any personal knowledge of the transactions and communications between the complainants and the OP. By and large, there is nothing on record, produced either by the complainants or the OP, to show that there were at all any discussion between the other complainants and the Managing Director of the OP. The letters of allotment are also a one sided affair, so to say, issued by the OP and presumably they must have been handed over either to the said Nandu Asrani or for that matter Ramesh Moorjani, after the latter secured payments from the complainants.
8. Shri. V.K. Daniel, the lr. advocate of the complainants, would submit that since the OP has now given the possession of the apartments, the complainants would be interested only in sale deeds with undivided right to the land, as claimed by the complainants plus compensation, as claimed by the complainants. We asked Shri. C.F. de Sousa, the lr. adv. of OP, as to what should happen, in case the pleas taken by the OP, were upheld by this State Commission, whether the OP would be interested in taking back the possession of the apartments handed over to the complainants, and, to that Shri. C.F. de Sousa, stated, more than once, that the stand of the OP has been very clear that the complainants never came to take possession although they were told that the project was completed in the year 2008 and that the OP has always been willing to handover the possession of the apartments booked by the complainants and this was also conveyed to the complainants in their reply dated 30/1/14 to the legal notice dated 15/1/14. A perusal of the said reply dated 30/1/14 would also show that the OP did not take any of the pleas now taken by them in the written version, but, on the contrary had made clear to the complainants that it is they who had failed to come forward to take possession, although they were aware that the apartments were ready for occupation since February/March, 2008.
The OP even asked the complainants to fix a date, make an appointment and take possession. All that the OP had stated is that the OP had at no stage offered to sell the undivided share in the land to the complainants. Other allegations made on behalf of the complainants were denied by the OP. In the written version, the OP has stated that in the said reply dated 30/1/14 the OP had specifically informed the complainant to take physical possession and to execute the sale deed which the complainant for reasons best known to them failed to do and did not even respond to the said notice for six months but chose to file the complaints.
9. Shri. V.K. Daniel, lr. advocate of the complainants has placed reliance on an order of this Commission dated 4/6/13 in CC Nos. 7 and 8 of 2011 filed by other complainants against the OP. However, we must hasten to add that each case must be decided on the evidence produced by the parties.
10. As already stated, the real dispute between the complainant and the OP appears to be as regards the execution of the sale deed. We will consider this controversy, first. The contention of the OP appears to be that the allotment letters constitute the agreement between the complainant and OP and as the allotment letters do not provide for undivided share of land, to be conveyed, nor any law in force in the State of Goa requires them to do so, they are not liable to convey the same to the complainants. As already stated, the OP has always been willing to hand over the possession of the apartments to the complainants. First, they tried to inform the complainants way back in March 08 through the said Asrani and Ramesh Moorjani, that the apartments were ready and that they should arrange to take possession. There is no explanation from the complainants and particularly from complainants attorney Shri. Asrani nor from complainant Moorjani as to why they did not respond to the said letter. Then the OP told the complainants, in their reply to the legal notice, that they should make an appointment and take delivery of possession of the apartments after signing requisite receipts. The complainants did not react to this letter as well, for almost six months, and then chose to file the complaints. After filing of the complaints as already stated, possession has been handed over to the complainants of their respective apartments.
11. The attorney Shri. Nandu Asrani, by his letter dated 27/2/10 informed the OP that all developers in Goa give proportionate share in land alongwith the apartments and that they had bought the apartments in other projects in Goa and by all agreements proportionate right in land was conveyed. Complainant Ramesh Moorjani by letter dated 26/8/11 told the OP that in Dubai every Company gives a share of land because, if there is some accident to the building, the value of the apartment becomes a big zero. The said Ramesh Moorjani also informed the OP that he had sold the OPs apartments putting his reputation in line and that the OP should take care of his reputation and that all his clients would stand to suffer without a share in land and then no one will buy the apartments.
12. The O.P. may be right in saying that the allotment letter nor any law in force in this State requires a seller of a flat to convey a proportionate undivided right to the land, but in our view, whenever a flat or apartment is sold or agreed to be constructed the same would be required to be sold with proportionate undivided right in the land and this has got to be considered as an implied term of agreement for sale of flats.
In the absence of it, the flats will cease to have commercial value. In our order dated 4/6/13 in C.C. Nos. 7 and 8 of 2011 we held as follows:
it is not the case of the OPs that in the said letters of allotment dated 13/12/06 they had conveyed to the complainants that the allotment of the said apartments would be without the allotment of corresponding proportionate right in the property. Shri. Asrani in his letter dated 27/2/10 had conveyed to OP No. 2 that all developers in Goa convey proportionate share in land alongwith the apartment and had requested him to incorporate the same in the deed of sale stating that they had bought apartments in other projects in Goa and in all the agreements proportionate right in land was conveyed.
8.2. Lr.
advocate on behalf of the complainants, has placed reliance on the decision of Jharkhand High Court dated 03/03/08 reported in 2008 (2) JCR 73 in the case of Anil C. Biswas vs. State of Jharkhand & ors. wherein it is stated that: in the case of sale of flat, the proportionate share of the land with common area to be transferred.
8.3. We are unable to accept the submissions made by the lr. adv. on behalf of the O.P. Unless proportionate undivided right in land is conveyed, to the complainants the complainants purchase of flats or apartments will be incomplete and will not have much commercial value. Shri. Asrani, as a broker should know better that all developers convey proportionate share in land while executing the sale deed. That is business practice. That apart it is also a well known practice amongst all the developers, in case of purchase of flats, to convey undivided proportionate share in the land and that can be taken as an implied agreement between the parties whenever the flats or apartments are purchased.
The O.Ps do not say that there is no such practice. In our view, the complainants would be entitled to proportionate undivided right in the land of the said project wherein they have been allotted the said apartments or flats, to be conveyed to them. Selling flats without proportionate undivided right in the property will also amount to unfair trade practice. It is to be noted that the complainants are not parties to the said allotment letters which have been unilaterally issued by the O.Ps.
13. We adopt the same finding in these cases also. In our view, the complainants would be entitled to a sale deed in respect of the apartments sold to them conveying to the complainants proportionate undivided right in land surveyed under No. 362/12, and, we accordingly direct the OP to execute such a sale deed in favour of the complainants.
14. We have already noted that the OP has already handed over the possession of the apartments to the respective complainants, and that, in our view, would amount to waiver of the other pleas taken by the OP.
15. Alternatively, we hold that there is no merit in the other pleas taken by the OP, except one.
16. The OP does not deny issuing allotment letters and accepting payment from the complainants pursuant to which the OP has now handed over possession of the apartments to the complainants. In such a situation, the plea of the OP that the complaints could not have been filed through the said Asrani as he has no personal knowledge of the transactions is of no significance. In fact, the said Asrani and Complainant Moorjani certainly have more knowledge about the transactions, then the other complainants. They acted as middle-men, at times as agents of OP, at other times, as agents of other complainants.
17. There is no doubt that the OP conveyed to the attorney Shri. Nandu Asrani and to the complainant Shri. Ramesh Moorjani by letter written to all the flat owners, way back in March 2008, that the flats were ready for possession since June of that year. The OP has stated that they did not have the addresses of the complainants and it is not the case of the OP that attorney Nandu Asrani or the complainant Ramesh Moorjani had conveyed to the other complainants that the flats were ready for possession. However, the fact remains that at no point of time did the complainants demand from the OP the possession of the flats except by legal notice dated 15/1/14, and, at no point of time did the OP refuse to hand over the possession of the flats, but on the contrary, on the first available opportunity, by reply dated 30/01/14, the OP called upon the complainants to make an appointment and come and take delivery of the possession of the apartments after signing requisite receipts. Since the complainants did not demand possession of the flats except by notice dated 15/1/14 and since the OP did not at any time refuse to give possession of the apartments to the complainants, time to file complaints cannot be computed from the year 2008 as sought to be contended on behalf of the OP. The refusal to convey undivided right was conveyed to the complainants first time by reply dated 30/1/14. The plea of limitation therefore needs to be rejected.
18. We have examined the plea of pecuniary jurisdiction raised by the OP on the touchstone of Section 17 of the C.P. Act, 1986 but considering the payments made by the complainants to the OP as well as the compensation sought, we find that the said plea has no merit.
19. As regards the plea that the complainants are not consumers, we find from the record that the complainant Dawlat Alwani sent an SMS to the OP to the effect that if you get any offer, let me know. Complainant Dawlat Alwanis brother Mahesh asked the OP: what is the value of the flat now? These statements made on behalf of the complainant Daulat coupled with not taking possession inspite of the same being offered to the complainant by reply dated 30/1/14, and, even earlier, would prima facie indicate that the complainant Daulat Alwani was not interested in buying the said apartment for his own use but for resale. Complainant Lakhpat Kalwani told complainant Ramesh Moorjani by letter dated 17/09/07 that he wanted to sell his apartment and that he should be allowed to sell his apartment if he wanted to do so. This is reflected in the letter dated 17/09/07 written by broker complainant Ramesh Moorjani to the Managing Director of the OP. Likewise, the complainant Ramesh Moorjani who is a broker himself told the OP by letter dated 10/2/07 that he expected to make money from the apartment he had booked, rather than just take back his deposit. Then by letter dated 26/8/11 he told the OP that they had bought these apartments to make money in good faith and that after four years they had made no headway or profits.
Similarly, complainant Ramesh Moorjani, on behalf of, complainant Ramesh Melwani told the OP by letter dated 27/08/06 that complainant Ramesh Melwani did not want to hold property in Goa, as he is a foreigner. It is therefore obvious that these four complainants had purchased the apartments not for their own use or residence but for resale as a matter of investment, and to earn profits and as such would not have been consumers who could have invoked the jurisdiction of this Commission; and if four of the complainants had purchased the apartment for resale could complainant Vinod Talreja left behind? The answer has got to be in the negative. However, we have already taken the view that the OP has waived such an objection by handing over the possession of the apartments to the said complainants and as such we would like to put an end to the controversy, particularly in view of the stand now taken by OP, reproduced in para 8 hereinabove.
20. The complainants have produced a brochure and have stated that it was represented to the complainants that the project Joia do Mar would exclusively be a residential project. On the other hand, the OP has stated that the said brochure was discarded way back in the year 2006 and that initially they were to construct only villas in survey No. 362/12 and not apartment blocks, but subsequently the plans were revised and fresh approvals were taken for the construction of four villas and three apartment blocks A, B and C and one studio apartment block D, each block consisting of 12 units and thereafter no brochure was ever printed. The OP has produced the revised plans (copy at page 204) where they have depicted blocks A,B and C and also the commercial block.
The OP has denied that they had represented that the said project would be residential complex and that they have given on leave and licence only those apartment owned by them in survey No. 362/12 for residential and lodging purposes after obtaining necessary permissions from all authorities and they are entitled to earn from the same. The OP has produced copy of letter dated 11/8/06 written by the said Nandu Asrani to one Majima Jude wherein the said Nandu Asrani admits that the apartment plans have changed since then. The letter also mentions of email of a layout plan. The OP has also referred to another letter dated 27/10/06 written by the said Nandu Asrani wherein he informs Sleek Advertising that they have a separate commercial block of 3500 feet which they could offer as a pizza hut. The complainants nor the said Asrani have produced the layout plan as reflected in letter dated 11/08/06, and, therefore adverse inference has to be drawn against the complainants. On the basis of the aforesaid letters, written by the said Nandu Asrani, it can be safely concluded, that the said Nandu Asrani is lying through his teeth on behalf of the complainants, saying that the project was meant to be exclusively residential. Moreover, does anyone maintain a kitchen to serve tasty dishes in a exclusively residential complex? It is not the case of the complainants that they had seen the brochure now produced.
Did Nandu Asrani forward the said brochure to the complainants? This is not their case. Was the brochure available on the website of the OP. This is also not the case of the complainants. The complainants have failed to prove that the OPs complex was exclusively residential, atleast as far as these cases are concerned.
21. Considering the peculiar facts of these cases, therefore, we are not inclined to award any compensation to the complainants for delayed possession nor any costs to these complainants. Complainants through the said attorney (except the said Moorjani) say that the complainants were never called upon to hand over possession on a specific date and time and that the OP has been avoiding to hand over the possession to the complainants. These are false statements made by the attorney on behalf of the complainants. What did the attorney of the complainants or for that matter complainant Moorjani do when they were told in May 2008 that the apartments were ready for possession? Did they ask the OP to fix the date and time of taking possession? And the silence thereafter? Why is there not a single letter from the complainants asking the OP to fix the date and time to take over possession? And why did not the complainants fix a date and time to take possession, inspite of being specifically told to do so by the OP, by their reply dated 30/1/14? In our view, if at all there is delay in giving possession of the apartments, the same is attributable to the complainants and/or their attorneys. In fact, it appears that sale of apartments was made by the OP to the complainants through middlemen the said Asrani and the said Moorjani who acted at times as agents of the OP and sometimes as agents of the complainants till the said Asrani was given a written power of attorney by the complainants on dates shown in the table.
22. Since the possession of the apartments has now been given to the complainants we only direct the OP to execute a sale deed in their favour with proportionate undivided right in the said property surveyed under No. 362/12 at Calangute, within 30 days. We leave the parties to bear their own costs.
[Smt. Vidhya R. Gurav] [Justice Shri. N. A. Britto] Member President sp/-