State Consumer Disputes Redressal Commission
Mr. Gilroy Leo Crasto And Anr. vs M/S. Build Well Constructions, on 12 October, 2012
Daily Order
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/07/205
1. MR. GILROY LEO CRASTO
2. MR. FLOYD TERENCE CRASTO
BOTH R/AT:-
FLAT NO.1, ANNETTE,
35, ST.PAUL
ROAD,
BANDRA (WEST), MUMBAI-400 050
-
: VERSUS :-
M/S. BUILD WELL
CONSTRUCTIONS,
9, JUDEV HEAVEN,
MOUNT POISAR,
BORIVALI (WEST)
MUMBAI - 400 103.
BEFORE:
HON'BLE Mr. S.R. Khanzode PRESIDING MEMBER
HON'BLE MR. Narendra Kawde MEMBER
PRESENT:
Adv. M. A. Khan for the Complainants
Adv. Subodh Gokhale for the Opponent
ORDER
Per - Hon'ble Mr. S. R. Khanzode,
Presiding Judicial Member This consumer complaint pertains to alleged deficiency in service on the part of the of the Opponent, M/s. Build Well Constructions (hereinafter referred to as 'the Builder' for the sake of brevity) for not handing over the possession of the fourth flat and a garage agreed to be given or in the alternative to grant compensation of `50,00,000/-.
[2] Undisputed facts are that the Complainants alongwith their late mother, Mrs. Maureen Crasto were the allottees of a plot bearing No.7-N by Nutan Shanti Priya Co-operative Housing Society Ltd., of which Late Mrs. Maureen Crasto was a member.
On the death of Mrs. Maureen Crasto on 23/1/2001, allotment and membership of the society was transferred in favour of the Complainants. The Complainants and Late Mrs. Maureen entered into a development agreement to develop their plot No.7-N with the Builder as per Development Agreement dated 30/3/2000. As a part of consideration, the Builder agreed to give Late Mrs. Maureen and the Complainants a sum of `80,000/- and also to provide four flats in the building to be constructed as an activity of development, each admeasuring 700 sq. ft., (super-built area) free of cost alongwith four garages under the stilt. After construction of the building, the Builder had handed over three flats viz. flats bearing Nos.A-303, B-104 and B-105 alongwith three garages witnessed by three separate documents for each flat and a garage, dated 3/12/2005. However, the Builder did not hand-over fourth flat and a garage as per the development agreement and also did not compensate the Complainants in lieu thereof and, therefore, present consumer complaint is filed on 19/12/2007.
[3] The Builder did not dispute the development agreement and the fact that under it four flats and four garages besides consideration of `80,000/-
was agreed to be given, supra.
However, according to the Builder, the flats were purchased for investment purposes with profit/commercial motive and as such, the Complainants are not the 'consumers' within the meaning of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act' for the sake of brevity).
At the second instance, it is submitted that since the Complainants failed to give all the documents particularly, the property card to the Builder, the Builder was required to incur additional expenditure of `75,00,000/- to obtain the approvals/permissions from the authorities and also to purchase additional Transfer Development Rights (TDR) to be loaded on the property since the entire FSI available for the property could not be utilized in absence of property card. It is further contended on behalf of the Builder that the Complainants were put in possession of and accepted three flats and three garages.
However, it is the Complainants who are to be blamed for delay in handing over fourth flat and a garage since they failed to provide proper documents (property card) regarding the plot of land.
[4] Heard Adv. M. A. Khan on behalf of the Complainants and Adv. Subodh Gokhale on behalf of the Opponent, Builder.
[5] It may be pointed out that the Complainants tried to raise an issue that they had to spend about `7,50,000/- to provide certain amenities which the Builder promised but failed to provide. The Builder categorically denied this allegation. Besides that the claim pertaining to it referring to the date of handing over possession of those flats and garages on 3/12/2005, is clearly time-barred. Another issue as to whether reimbursement on this count could be a consumer dispute or not need to be settled. Prima-facie, it will not be a consumer dispute.
[6] The Complainants filed an affidavit in evidence of one of the Complainants, Mr. Gilroy Crasto as well as his counter-affidavit dated 9/7/2012. On behalf of the Builder, his own affidavit dated 13/6/2012 is filed. Documents on the record i.e. the agreements, development agreement, allotment letters as well as correspondence between the parties are not in dispute.
Similarly, a copy of the property card of the property is also filed and produced on the record.
It may be pointed out that the copy of the property card was also annexed to the deed of allotments dated 3/12/2005 which were registered documents.
[7] As per the development agreement dated 30/3/2000 out of the four flats and four garages, the Builder had delivered only three flats and three garages. Since the power-of-attorney and necessary authorities were given to the Builder, as a Developer, if, the Complainants did not issue any property card, the Builder could have easily obtained a copy thereof and, therefore, his grievance that he was put to inconvenience and had to incur additional expenditure of `75,00,000/-, supra, is per-se, devoid of any substance. In fact, his such case is not substantiated by any evidence.
Further, since this reason fails, there is no excuse for the Builder to not to hand-over possession of fourth flat and a garage to the Complainants as per the Development Agreement dated 30/3/2000.
[8] Further, in his affidavit dated 13/6/2012, the Builder, Mr. Felix M. Sequeira tried to develop altogether a new story which is in variance with his own written version.
In his affidavit, the Builder tried to submit as under:-
"I say that it was agreed to provide to the Complainant, as per the Agreement for development four (4) flats of 700 Sq Ft super built-up area and 4 garages. I say that the flats of 700 Sq Ft Super built up area were 1 bedroom flats, but the Complainant requested the OP to provide 2 bedroom premium flats.
Hence it was decided to provide 3 2BHK premium flats of 950 Sq Ft super built up area each (equivalent to 600 Sq Ft carpet area) and 3 garages (1 garage per flat) to the Complainant and the Complainant accepted and took the possession of three flats."
[9] This particular statement is categorically denied on behalf of the Complainants by one of the Complainants, Mr. Gilroy Crasto in his counter-affidavit dated 9/7/2012.
There is no proof or any evidence to show that there was novation of contract or any additional terms in terms of the new case which is tried to be developed in an affidavit, supra, was ever agreed between the parties. At the second instance, such new case tried to be developed by the Builder also cannot be believed since it is in variance with his written version.
[10] As now admitted by both the parties, the Builder has already sold fourth flat to a third party and said flat alongwith garage is no more available for being handed over to the Complainants. In the circumstances, it would be just and proper to consider the case of the Complainants for an alternate relief for grant of compensation in lieu of fourth flat and a garage. The Complainants have claimed compensation of `50,00,000/- on this count. Considering the existing property rates in Andheri (West) area where the property is situated and referring to such rates as available and published in Daily 'Loksatta' Saturday Supplement 'Vasturang' in its issue dated 21/1/2012 of which due notice could be taken, the property rates per square-foot are in between `11,000/- to `17,000/-. Referring to this, even at the lower limit a flat admeasuring 700 sq. ft. in area would cost around `77,00,000/-. Thus, compensation of `50,00,000/- claimed by the Complainants, appears to be just and proper. We hold accordingly.
[11] The Builder also tried to raise an issue that the Complainants are not the 'consumers' since the four flats and four garages were agreed to be purchased by way of an investment. We are afraid there is no evidence to substantiate the same. As a part of development activity and a development agreement entered accordingly, the Complainants, who are the brothers and their mother Late Mrs. Maureen were to receive from the Builder these four flats and four garages as a part of consideration, free of cost.
It is not an investment or any business (commercial) activity.
For the reasons stated above, we hold accordingly and pass the following order:-
ORDER The complaint is partly allowed.
The Opponent, M/s. Build Well Constructions through its proprietor, Mr. Felix M. Sequeira is hereby directed to pay to the Complainants compensation of `50,00,000/- within a period of 45 days from the date of this order and failing which, the amount shall carry interest @ 18% p.a. till its realization.
The Opponent Builder to bear his own costs and shall pay costs of `25,000/- to the Complainants.
Pronounced on 12th October, 2012 [HON'BLE Mr. S.R. Khanzode] PRESIDING MEMBER [HON'BLE MR.
Narendra Kawde] MEMBER kvs