State Consumer Disputes Redressal Commission
Ms Roopal Jignesh Mistry vs Nitin D Patel (Huf) on 8 January, 2019
[CC/14/309]
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO.CC/14/309
1] Ms.Roopal Jignesh Mistry
r/at : Flat No.101, Mukund Complex,
New Golden Nest Road, Opp.Apple Hospital,
Bhayandar East, Thane 401 105.
2] Mr.Jignesh Baldevdas Mistry,
r/at : Flat No.101, Mukund Complex,
New Golden Nest Road, Opp.Apple Hospital,
Bhayandar East, Thane 401 105. ...........Complainant/s
Versus
Nitin D. Patel [HUF]
Through its Karta and Manager
Nitin D. Patel,
Office at : 103, Mohan Palace, 57th road,
T.P.S.III, Borivali West,
Mumbai 400 092. ............Opponent/s
BEFORE:
Usha Thakre, Presiding Judicial Member
Dr.S.K.Kakade, MEMBER
For the complainant : Adv.S.Deshpande
For the Opponent : Adv.Ajay Pawar
ORDER
Per Dr.S.K.Kakade, Member
1. This is a complaint against the Builders and Developers Nitin D.Patel ( HUF) through its Karta and Manager Mr. Nitin D.Patel alleging unfair trade practice and deficiency in service, filed by the complainants, under section 17 [(1)] (a) (i) of the Consumer Protection Act 1986.
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2. Complainants in this case are purchasers of the flat from the opposite party who is Builder and developer. The Builder has not handed over the possession of the flat to the complainants, and hence the complainants have filed this consumer complainant seeking possession of the flat along with occupation certificate.
3. The brief facts of this case are as follows. The Complaints are husband and wife, have purchased flat no. 203, B Wing, second floor in the building known as "La Bellezza" situated at plot bearing CTS number 2220- B/ 1 E, Kajupada, Borivali( East) , Mumbai 400 066, from the opposite party for total consideration of Rs.26, 28,000/- vide registered agreement dated 14th June 2010 bearing registration no. VDR5- 06905- 2010. The complainants have paid to the opposite party Rs. 23, 90, 389/- an amount of consideration + Rs. 36,495 /- on account of interest charges + Rs.32, 134/- towards service tax, Rs. 1, 31, 400 /- towards VAT + Rs. 1, 00,000/- in cash towards parking area. The complainants paid amount Rs. 17,34, 480/- by way of cheques and also obtained loan of Rs. 8,93, 520/- from Oriental Bank of Commerce, Mira Road Branch, Thane. In spite of completion of the building, the possession of the said flat was not handed over to the complainant and hence complainants have come to this Commission with prayer of grant of possession of the said flat. Also prayed for allotment of parking area and payment of compensation of Rs. 15 lakh to the complainant towards mental agony.
4. The opposite party opposed the complaint by filing written statement and denied each and every element, statement, contention and allegation made in the complaint. The opposite party submitted in the written statement that this Hon'ble Commission does not have jurisdiction and the complainants are not consumers as per the definition under Section 2 (1) (d) of the 2 [CC/14/309] consumer protection act 1986. The opposite party also raised preliminary objections and submitted that complainants are guilty of suppression of vital and material facts and the complaint being wrong, mischievous and frivolous, the same deserves to be dismissed.
5. Considering the submissions made before us, considering rival contentions of both parties, record and scope of the complaint, following points arise for our determination and our findings thereon are noted against them for the reasons given below-
Sr.No. Point Findings
1. Whether the complainants prove that they Yes are consumers under Consumer Protection Act 1986?
2. Whether the complainants prove that there Yes was deficiency in service / unfair trade practice by the opposite parties?
3. Whether the complainants are entitled Yes forpossession of the flat?
4. Whether the complainants are entitled for No possession of appropriate parking area?
5. Whether the complainants are entitled for Yes compensation?
6. What Order? As per the final order REASONS
6. As to POINT No.1Consumer Learned advocate for the complainant submitted that since complainants have paid Rs. 26, 28,000/- out of the total agreed upon consideration for the said flat Rs. 26,28,000/- and opposite party has issued receipts for the all amount that was paid. He further submitted that since part of the agreed upon consideration 3 [CC/14/309] was paid and remaining was agreed/ promised to be paid, the complainants are consumers as per the definition of "consumer" in Consumer Protection Act 1986. Learned advocate for the opposite party opposed this contention and submitted that the complainants are not consumers within the meaning of the Consumer Protection Act 1986. He further submitted that the complainant No.1 is Central Railwayemployee who was staying in the quarters allotted to him by the Central Railways and as per the rules the amounts towards HRA were deducted from the salary of complainant no.1. Complainants have purchased the flat for the purpose of investment only and thus the complainants are not consumers.
We are of the opinion that since the services of the Builder / promoter were hired topurchase a flat against part payment of the consideration and part promise of payment of consideration, the complainants are consumers within the meaning of and definition of consumer in Consumer Protection Act 1986. Enhance we give the answer to the point number 1 as AFFIRMATIVE.
7. As to POINT No.2 Deficiency in Service / unfair trade practice The learned advocate for the complainants Mr. Sanjeev Deshpande submitted that the complainants booked a flat no. 203, wing-B, second floor in the building known as La Bellezza, admeasuring 396 square feet carpet area, situated at plot bearing CTS number 2220- b/ 1 E , Kajupada Borivali (East), Mumbai 400 066 for total consideration of Rs. 26, 28,000/-. Out of the total consideration the complainants paid Rs. 26, 63,284/- to the opposite party(Rs. 23,95, 389/- on account of consideration + Rs. 36,495/- on account of interest charges by the opposite party +Rs. 32,134/- towards service tax + Rs. 1,31, 400/- towards VAT and Rs. 1 lakh (in cash) towards parking area. Learned advocate for complainant submitted that the opposite party entered into agreement with the 4 [CC/14/309] complainant on 14thJune 2010, the said agreement to sale mentions promise for possession of the flat on 28thFebruary 2013, given on page number 271 of the complaint compilation.
8. Learned advocate for the complainant also submitted that a loan of Rs. 8,93,520/- was obtained by the complainant from Oriental Bank of Commerce, Mira Road branch, Thane and an amount of Rs. 6, 60, 909/- was paid to the opposite party through the Oriental Bank of Commerce. While obtaining the housing loan the complainant requested for no objection certificate (NOC) from the opposite party, but the opposite party purposely avoided the issuance of the same certificate. The learned advocate for the complainant stated that the complainant wrote the opposite party demanding possession of the flat on the agreed date, i.e. 28 February 2013. Also the learned advocate submitted that the opposite party asked the complainants to pay an amount of Rs. 1, 00,000/- towards the parking space. The said amount was paid by the complainant in cash. The opposite party also demanded balance amount of Rs. 2,32,611/- along with the interest of Rs. 2,43,2 94/- for delayed payment and service tax of Rs. 6297/-.
9. Learned advocate for respondent submitted that the complainants have not paid the instalments as per the schedule of payment agreed upon by both the parties in agreement for sale of the said flat and the same is given on page no. 27 for the complaint compilation and also on page 193, letter to the complainant. Due to non-payment of the instalments as per the schedule, there was delay in the payments of all the instalments from 31st of May 2010 to 29thFebruary 2012. Learned advocate for the respondent also submitted that as per the calculation of the delays in days in paying instalments, the interest was levied upon and the amount of total calculation of interest to be received was Rs. 2,43, 294/-. Submitted on page no.117 of the compilation.
5[CC/14/309]
10. Learned advocate for opposite party submitted that in a similar case, Ketan BaldevDas Mistry vs Nitin D Patel, this Hon'ble state Commission has passed an order on 18th October 2012. In this case the complainant had filed case under civil law also along with the case in consumer court. Hon'ble state Commission observed that this was misuse of jurisdiction of consumer forum and hence that complaint was dismissed with cost on complainant. Similarly this case also needs to be dismissed, advocate submitted.
11. Regarding demand of parking area by the complainant, learned advocate for the opposite party submitted that the builders have not received Rs.1,00,000/- in cash towards parking area and also there was an undertaking agreement between complainant and opposite party on 3rd of August 2013 that since complainants didn't have car they would not require parking space. The same agreement is on pages 360/361 of the compilation.
12. Learned advocate for the respondent submitted that there was delay in the construction work of "La Bellazza" building due to non-availability of the sand in the market as there was some royalty issue pending from 3 to 4 months. That was the main reason why construction work was not complete in time and there was delay of possession of the flat. Learned advocate further submitted that the same was communicated to the complainant by letter dated 31stof August 2011 which is exhibit 3 on page 238 of the compilation. Furtherit was submitted that clause 10 of the agreement for sale has clearly mentionedthat,"developers shall be entitled to reasonable extension of time for giving possession of premises on aforesaid, date of the completion date if the completion of building is delayed on account of non-availability of building material, act of god and any other reason oblique cause beyond control of opposite party. Thus failure of payment as per the schedule ofinstalments, final demand letter from opposite party along with the calculation of interest @ 24% for the delay is 6 [CC/14/309] on page 116, 117. Learnedadvocate for the opposite party prayed for dismissal of the complaint on the basis of about legal and factual position.
13. After going through the documentson record and arguments of both the parties, we are of the opinion that the complainants have paid major part of the consideration. The opposite party,builderdelayed the construction work for the reason of non- availability of sand in the market. The opposite party has not placed on record any evidence of non-availability of the sand in the market. Hencenon-payment of the consideration as per the schedule of payment cannot be the ground for delay in possession of the flat. There is a deficiency in service by the Builder by delaying the possession of the flat to the complainant. And hence the answer to point No.2 is AFFIRMATIVE.
14. As to POINT No.3 : Possession of Flat On the grounds discussedabove, the complainants are entitled for the flat and the opposite party should hand over the possession of the said flat within the period of 2 months to the complainants. The answer to the POINT No.3 is AFFIRMATIVE.
15. As to POINT No.4 : Possession of Parking area There is no evidence of cash payment of Rs.1 Lakh by the complainants to the opposite party. The complainants are not entitled for the parking area; in view of their own agreement. By the said supplementary agreement between parties, the complainants had given up parking space for want of own car. Hence, the answer to the POINT No.4 is NEGATIVE.
16. As to POINT No.5 : Compensation As the complainants have proved the deficiency in service by the opposite party, they are entitled for the compensation of Rs.3 7 [CC/14/309] Lakh, to be paid as per the final order.The answer to the POINT No.5 is AFFIRMATIVE.
17. As to POINT No.6 : Final Order ORDER
1. Consumer complaint is partly allowed with costs quantified at Rs. 25,000/- (Rupees twenty five thousand only) to be paid by the opponent to the complainants.
2. The opposite party is hereby declared as deficient in services given to the complainants and directed to handover vacant and peaceful possession of the flat no.203, Wing B, 2nd Floor in the building La Bellazza at the location Borivali (E) , Mumbai with Occupation certificate.
3. The opposite party is hereby directed to pay the amount of Rs. 3, 00,000/- (Rupees Three Lakh only)compensation towards mental agonywithin two months from the date of this order. In case of default the amount shall carry interest of 12% per annum from the date of order till realization.
4. Free certified copies of the order be furnished to the parties forthwith.
Pronounced Dated 8th January 2019 Usha Thakare Presiding Judicial Member Dr.S.K.Kakade Member 8