State Consumer Disputes Redressal Commission
Shobha Ugamraj Jain vs M/S Rajeshree Enterprises & Ors. on 14 August, 2012
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. CC/10/34
1. SHOBHA UGAMRAJ
JAIN
D 13 NAV-RUSHALI HSG SOCIETY AGARKAR CROSS ROAD
DOMBIVALI (E) DIST. THANE
...........Complainant(s)
Versus
1. M/S RAJESHREE
ENTERPRISES
RAM NIVAS BASEMENT M
G ROAD OPP PUNJAB NATIONAL BANK ABOVE TATA MOBILE GALLERY THANE (W)
DIST. THANE.
2. SHRI. SITARAM L.
NAIK
RAM NIWAS BASEMENT,
M.G. ROAD, OPP. PUNJAB NATIONAL BANK, ABOVE TATA MOBILE GALLERY, THANE
(W), DIST. THANE
3. SHRI. RAJAN B.
VICHARE
RAM NIWAS BASEMENT,
M.G. ROAD, OPP. PUNJAB NATIONAL BANK, ABOVE TATA MOBILE GALLERY, THANE
(W), DIST. THANE
4. SHRI. ANWAR S.
KASAM
RAM NIWAS BASEMENT,
M.G. ROAD, OPP. PUNJAB NATIONAL BANK, ABOVE TATA MOBILE GALLERY, THANE
(W), DIST. THANE
5. SHRI. PIYUSH V.
THANAWALA
RAM NIWAS BASEMENT,
M.G. ROAD, OPP. PUNJAB NATIONAL BANK, ABOVE TATA MOBILE GALLERY, THANE
(W), DIST. THANE
6. SHRI. RAJESH C.
THANAWALA
RAM NIWAS BASEMENT,
M.G. ROAD, OPP. PUNJAB NATIONAL BANK, ABOVE TATA MOBILE GALLERY, THANE
(W), DIST. THANE
7. SHRI. SAMIR C.
THANAWALA
RAM NIWAS BASEMENT,
M.G. ROAD, OPP. PUNJAB NATIONAL BANK, ABOVE TATA MOBILE GALLERY, THANE
(W), DIST. THANE
............Opp.Party(s)
BEFORE:
Hon'ble Mr. S.R.
Khanzode PRESIDING MEMBER
HON'ABLE MR. Dhanraj Khamatkar Member Hon'ble Mr. Narendra Kawde MEMBER PRESENT:
Mrs.Archana Pise, Advocate for the complainant.
None present for the opponents.
ORAL ORDER Per Shri S.R. Khanzode, Honble Presiding Judicial Member This consumer complaint pertains to alleged deficiency in service on the part of builder/developer for not handing over possession of the flat agreed to be purchased by the complainant.
2. It is the case of complainant-Smt.Shobha Ugamraj Jain (hereinafter referred to as complainant) that she agreed to purchase flat No.302 having carpet area of 847 sq.ft. situated in Mumbadevi Tower, Charai, Dist. Thane for total consideration of `18 Lakhs. Said transaction is witnessed by registered agreement dated 28/02/2007.
Complainant had paid entire consideration and which is witnessed by receipt dated 16/07/2007. She also paid `79,010/- as an advance payment towards maintenance for one year on 24/05/2007. Possession was agreed to be delivered within 18 months. However, since the possession is yet to be delivered, after giving a notice dated 04/04/2009, this consumer complaint was filed on 11/03/2010 praying for following reliefs :-
a) Refund of `18,79,000/- paid to the opposite party by way of consideration for the said premises.
b) `35,57,400/- at the rate of `4,200/- per sq.ft. as per todays market value of the said flat.
c) Interest from August, 2008 till realization at 20% p.a.
d) Damages for mental agony and physical suffering of the complainant assessed at `5 Lakhs.
e) Cost of this proceeding be paid by the opposite party to the complainant.
f) Further and other reliefs as the complainant may be entitled to be granted.
3. Opponent No.1-M/s.Rajashree Enterprises and its partners-opponent Nos.2to7 (hereinafter collectively referred to as builder), opposed the complaint by filing their written version dated 16/09/2010 which was adopted as per their respective pursis by opponent No.2-Mr.Sitaram L. Naik and opponent No.3-Mr.Rajan B. Vichare. They categorically denied adverse allegations made against them.
The transaction in question is not in dispute. However, it is contended on their behalf that possession of the flat was handed over to the complainant-Smt.Shobha Ugamraj Jain at her own request for doing interior and furniture on 02/04/2007. Since then she and her family members were in possession.
Subsequently, a dispute in their family arose and it is further alleged that her stepson Mr.Nitesh had taken forcible possession. Said Mr.Nitesh also filed a Special Civil Suit No.633/2008 against the complainant and his brothers for partition and possession of his share from the family properties and wherein he had obtained temporary injunction against the complainant and his brothers to not to create any third party interest in the flat in question. He claimed that he is residing in the said flat. Thus, the builder asked to dismiss the consumer complaint.
4. Referring to the documents on record, both the parties relied upon some of them viz. notice dated 04/04/2009 sent by complainant and reply given to it by the builder on 04/05/2009. Copy of non-cognizable complaint given by the complainant against her stepson Mr.Nitesh on 14/07/2008. Copy of the complaint in Special Civil Suit No.633/2008 and copy of order of temporary injunction passed by the Court in the said suit. Police complaint dated 14/07/2008 against Mr.Nitesh. Letter dated 19/08/2008 written by the complainant to the builder.
5. Complainant- Smt.Shobha Ugamraj Jain has filed her own affidavit in evidence while the builder relied upon the affidavits of its partner Mr.Sanjay Thanawala.
6. Heard both the parties.
7. As earlier pointed out the transaction in question is not in dispute.
However, the builder comes with a specific case that as per request of the complainant herself, possession of the flat was handed over to the complainant on 02/04/2007 for interior and furniture work. Since then it is alleged that, the complainant is in possession. Therefore, the builder, ultimately, submitted that since they already had given possession of the flat, there cannot be any breach of any obligation on their part amounting to deficiency in service. No compensation as alleged could be granted accordingly.
8. The complainant-Smt.Shobha Ugamraj Jain in her affidavit tried to make a case that her stepson Mr.Nitesh glove in hands with the builder had taken possession of the flat. It is not in dispute that several disputes including a civil dispute arose between the parties i.e. family of complainant and Mr.Nitesh even had filed a Special Civil Suit No.633/2008 in Thane Court and had also obtained temporary injunction against the defendants including complainant to not to create any third party interest in the suit flat i.e. the flat which is a subject matter of this consumer complaint. Perusing said order of temporary injunction dated 18/05/2009, the Civil Court observed that whether said flat is an independent, self acquired property of complainant-Smt.Shobha Ugamraj Jain or is a joint family property wherein Mr.Nitesh had share or not is a question in issue in the said suit filed by Mr.Nitesh. Referring to the non-cognizable complaint dated 14/07/2008 which was given by the complainant against Mr.Nitesh, it could be seen that both, complainant and Mr.Nitesh were residing together and since a quarrel had taken place between wife of Mr.Nitesh and Niteshs mother i.e. the complainant, said report was given on 14/07/2008. This indicates that at the relevant time both, the complainant-Smt.Shobha Ugamraj Jain and her stepson Mr.Nitesh were residing together. This is what her stepson Mr.Nitesh is submitting and which is reflected from the proceedings before the Civil Court. We, therefore, do not believe the case of the complainant that her stepson Mr.Nitesh and the builder glove in hands with each other and, accordingly, the builder handed over the possession to Mr.Nitesh.
9. Case of the complainant is further destroyed by her communication dated 19/08/2008 to the builder wherein she complained after making a statement that her stepson Mr.Nitesh in spite of her asking to him, was not handing over the keys back to the builder and vacating the flat and therefore, the builder can take appropriate legal action against Mr.Nitesh. In this letter, she never complained that Mr.Nitesh had forcibly taken possession of the flat in question. It is pertinent to note that while drafting the consumer complaint even though all the defences and facts to which a reference is made earlier, were very much within the knowledge of the complainant, she did not make any reference to them. Only after the builder filed a written version, she tried to explain the same.
10. Complainant-Smt.Shobha Ugamraj Jain in her affidavit dated 23/06/2011 tried to refer to one letter dated 27/09/2008 written by the builder to Senior Inspector, In-charge of Naupada Police Station, Thane, wherein it is stated that complainant-Smt.Shobha Ugamraj Jain had not taken possession of the flat and her stepson Mr.Nitesh illegally entered into said flat. It is only a notarized copy and not the original. Complainant-Smt.Shobha Ugamraj Jain is not author of said letter. It is not even received by her. Under the circumstances, the alleged statement made on behalf of builder/developer to the Police Authority cannot be taken into consideration since the same is not tendered in evidence or referred to its author particularly, to Mr.Sanjay Thanawala, whose affidavit on behalf of builder is filed. In this context, statement on oath of Mr.Sanjay Thanawala that possession was delivered to the complainant as per her own request on 02/04/2007 in the light of the circumstances discussed earlier appears to be true and there is no reason to discard the same.
11. Thus, for the reasons stated above, we do find that the builder has discharged its obligation to hand over the possession of the flat to the complainant.
There arises no question to hold that the builders are guilty of deficiency in service on that count.
12. In the instant case, by way to get remove the deficiency in service, possession of the flat was not claimed by the complainant. What she claimed is refund of consideration along with interest and also further compensation at par with market value of the flat.
Thus, considering the nature of relief claimed, it appears to be a money suit and not a consumer dispute.
13. For the reasons state above, we hold accordingly and pass the following order :-
-: ORDER :-
1. Consumer complaint stands dismissed.
2. In the given circumstances, both parties to bear their own costs.
3. Copies of the order be furnished to the parties.
Pronounced Dated 14th August 2012.
[Hon'ble Mr. S.R. Khanzode] PRESIDING MEMBER [HON'ABLE MR. Dhanraj Khamatkar] Member [Hon'ble Mr. Narendra Kawde] MEMBER dd