State Consumer Disputes Redressal Commission
Mr. Pradip Girishkant Mehta vs Neelkamal Realtors Suburban Pvt Ltd on 9 February, 2022
1 (CC/16/826)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO.CC/16/826
1.Mr.Pradip G. Mehta
A-15, 4th floor,
Parasmani CHSL, Opp.Joggers Park,
Chickuwadi,
Off Link Road,
Borivali(W),
Mumbai 400 092.
2.Smt.Bharati Pradip Mehta
A-15, 4th floor,
Parasmani CHSL, Opp.Joggers Park,
Chickuwadi,
Off Link Road,
Borivali(W),
Mumbai 400 092. Complainant(s)
Versus
1. Neelkamal Realtors Suburban Pvt. Ltd.
DB House, Yashodham,
Gen A.K.Vaidya Marg,
Goregaon(E),
Mumbai 400 063.
2. Mr.Vipul Dhanprakash Bansal
Director of
Neelkamal Realtors Suburban Pvt. Ltd.
DB House, Yashodham,
Gen A.K.Vaidya Marg,
Goregaon(E),
Mumbai 400 063.
3. Mr.Vinod Kumar Goenka
Director of
Neelkamal Realtors Suburban Pvt. Ltd.
DB House, Yashodham,
Gen A.K.Vaidya Marg,
Goregaon(E),
2 (CC/16/826)
Mumbai 400 063.
4. D.B.Realty Pvt. Ltd.
DB House, Yashodham,
Gen A.K.Vaidya Marg,
Goregaon(E),
Mumbai 400 063.
5. Mr.Vipul Dhanprakash Bansal
Director of
D.B.Realty Pvt. Ltd.
DB House, Yashodham,
Gen A.K.Vaidya Marg,
Goregaon(E),
Mumbai 400 063.
6. Mr.Shahid Usman Balwa
Director of
D.B.Realty Pvt. Ltd.
DB House, Yashodham,
Gen A.K.Vaidya Marg,
Goregaon(E),
Mumbai 400 063.
7. Mr.Vinod Kumar Goenka
Director of
D.B.Realty Pvt. Ltd.
DB House, Yashodham,
Gen A.K.Vaidya Marg,
Goregaon(E),
Mumbai 400 063. Opponent(s)
BEFORE:
Dr.S.K.Kakade, I/c.President
Mr.A.Z.Khwaja, Judicial Member
JUDGMENT
(Dated: 9th February, 2022) Per: Dr.S.K.Kakade, I/c. President Complainant has filed this complaint alleging deficiency in service and unfair trade practice on the part of the opponent praying for getting vacant and 3 (CC/16/826) peaceful possession of the flat alongwith occupancy certificate and completion certificate. Complainant has also prayed for costs, compensation and interest on the amount paid to the opponents. Facts in brief of the present case are as follows-
[1] Being allured by the advertisement of opponent, Complainant has booked flat with the opponent in the project 'Orchid Ozone', in Building No.22, bearing No.108, 1st floor, admeasuring 407.52 sq.ft. carpet area for total consideration of Rs.19,47,582/-. According to the complainant, complainant has paid total amount of Rs.19,73,009/- to the opponent towards consideration including VAT, service tax, GST etc. Grievance is also made in respect of demand of infrastructure and development charges. Opponent failed to hand over possession of the booked flat to the complainant. Hence, complainant has filed this complaint claiming possession of flat, for costs and compensation and also prayed for interest on the amount paid.
[2] Opponent has filed written version and denied the contentions raised in the complaint. It is contended that due to the change in the government policies as well as due to legal and statutory issues, project could not be completed. Relying on the reference made in the allotment letter, it is submitted that any other incidental charges, government levies or taxes or services taxes as may be applicable in future, are payable by the purchaser. In respect of demand of infrastructure and development charges, it is stated that those are payable as would be finally determined at the time of possession. It is contended that there is no deficiency in service or unfair trade practice on the part of the opponent, opponent has prayed for dismissal of the complaint.
[3] Heard arguments advanced by learned Advocate Mohit Bhansali for complainant and Advocate Anil Galgali for opponent. Perused record and 4 (CC/16/826) proceeding. Following points arise for our determination. We have recorded our findings for the reasons given below.
Sr.No. Points Findings
1 Whether complainant is a consumer of Yes
opponent?
2 Whether there is deficiency in service and Yes
unfair trade practice on the part of
opponent?
3 What order? As per final order
Reasons-
As to the Point Nos.1 and 2-
[4] It is not disputed that complainant has booked residential flat in the project floated by the opponent and paid consideration to the opponent. In spite of receipt of consideration, opponent failed to complete the project as promised within the stipulated period and to hand over legal possession of the flat to the complainant. According to the learned Advocate for the opponent due to the government policies and legal issues, project could not be completed. In support of the contention, reliance is placed on the following rulings-
1) Hon'ble Supreme Court of India in Chand Rani vs. Kamal Rani, decided on 18/12/1992 in Appeal (Civil) 3377 of 1979
2) Hon'ble Supreme Court of India in Hind Construction Contractors vs. The State of Maharashtra decided on 30/01/1979
3) Hon'ble National Consumer Disputes Redressal Commission in Pradeep Narula & anr vs. M/s.Granite Gate Properties Pvt. Ltd. & anr decided on 23/08/2016.
5 (CC/16/826)
4) Hon'ble Supreme Court of India in Bharathi Knitting Company vs. Dhl Worldwide Express Courier decided on 09/05/1996.
5) Hon'ble The National Green Tribunal (Western Zone) Branch, Pune in application No.34(THC)/2013(WZ).
[5] According to the learned Advocate for the complainant, since possession of flat was not handed over to the complainant, complainant was constrained to face financial difficulties and was compelled to pay rent, interest on loan.
[6] After considering the facts of the present case, documents filed on record and relied upon by the parties, it has become crystal clear that opponent has failed to complete the project and to hand over legal possession of the flat to the complainant till filing of this complaint. The contention of the opponent that due to the change in the government policies, legal and statutory issues, it was not possible for the opponent to complete the construction and to hand over possession of the flat to the complainant, cannot be accepted as it is nothing but ruining of poor consumer at the hands of builder. Such an interpretation, if taken, is bound to defeat the very objective behind the enactment of the Consumer Protection Act, as far as housing construction is concerned. Therefore, we are unable to accept the plea taken by the opponent in this regard. In our view, opponent was duty bound to complete the project as promised within the given period as considerable amount of consideration was accepted by the opponent. Opponent has used hard earned money in the form of consideration towards booking of the flat and deprived the complainant who is the consumer of the service provider-builder from use of the services promised for in the form of flat, a dream house, compelling to face financial crunches, mentally and physically also thereby committing deficiency in service and unfair trade practice. In spite of non completion of the project, further demand of infrastructure and development charges on the part of the opponent cannot be held justifiable act. Complainant cannot be held responsible for the acts of the 6 (CC/16/826) opponent also for the payment of infrastructure and development charges. It was mandatory and contractual obligation on the part of the opponent to get all the sanctions, pre-sanctions of the project before its advertisement and alluring the consumers of the rosy pictures of the dream house. Time is the essence of contract. Complainant cannot be put for indefinite period of sufferings at the hands of the opponent. The problems faced by the opponent in the form of legal and statutory issues, government policies cannot be held as a solid ground for delaying the project for indefinite period. In our opinion, the rulings relied upon by the opponent are not applicable to the present case, since facts in the present case are different. Contention raised on behalf of complainant regarding rent and interest on loan amount etc., cannot be accepted since those are not pleaded and prayed in the complaint. Hence, we answer point Nos.1 and 2 accordingly and proceed to pass the following order-
ORDER 1] Consumer complaint is hereby partly allowed.
2] Opponent is directed to handover legal possession of flat in the project 'Orchid Ozone', in Building No.22, bearing No.108, 1st floor, admeasuring 407.52 sq.ft. carpet area to the complainant after execution of agreement, after accepting balance amount of consideration, if any within a period of three months from the date of passing of this order.
3] Opponent is directed to pay amount of Rs.2,00,000/- to the complainant towards compensation for mental and physical agony.
4] Opponent is directed to pay amount of Rs.50,000/- to the complainant towards costs of litigation.
7 (CC/16/826) 5] Opponent is directed to comply with the aforesaid order within a period of 60 days from the date of passing of this order. Else, this amount shall carry interest @12% p.a. from the date of passing of this order till entire realisation of amount by the complainant.
Copy of this order be supplied to both the parties.
[Dr.S.K.KAKADE] I/c.PRESIDENT [A.Z.KHWAJA] JUDICIAL MEMBER rsc