State Consumer Disputes Redressal Commission
1. Sudarshan Jagannath Singh, Since ... vs M/S Sainath Enterprises on 8 November, 2011
C-263/1999
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. CC/99/263
1. Sudarshan
Jagannath Singh, since deceased his legal heirs.
1(A) Mr.Chandan S.
Singh,
1(B) Ms.Anupama S.
Singh,
1(C) Ms.Anita S.
Singh,
1(D) Ms.Ashwini S.
Singh.
Flat Nos.103-B,104-B Powai Vihar Complex
Building No.4
Powai Mumbai_400076
2. Smt Veena
Sudarshan Singh
Flot no 103 B/104-B
Powai Vihar Complex Building No 4 Powai
Mumbai 400 076
...........Complainant(s)
Versus
1. M/s Sainath
Enterprises
006 Motivihar B Netaji Subhash Road ,
Mulund (East), Mumbai
400080
............Opp.Party(s)
BEFORE:
Hon'ble Mr. P.N.
Kashalkar PRESIDING MEMBER
Hon'ble Mr. Dhanraj Khamatkar Member PRESENT:
Ms.Anita Marathe, Advocate for the Complainants a/w Complainants in person.
None for the Opponents.
O R D E R Per Shri P.N. Kashalkar Honble Presiding Judicial Member:(1)
This complaint is filed jointly by Shri Sudarshan Jagannath Singh and his wife Smt.Veena Sudarshan Singh. Both resident of Powai Vihar Complex, Building No.4, B-103/104, A.S. Marg, Powai, Mumbai 400 076 against M/s.Sainath Enterprise of Mulund (West), Mumbai. According to Complainants Opponent was building residential flat premises.
Hence, they approached Opponent and at his instance booked two different flats. The Opponent prepared two separate agreements, one for the Complainant No.1 and another for the Complainant No.2. Complainants agreed to purchase Flat Nos.103-B and 104-B respectively in Building No.4 to be constructed in Powai Vihar Complex. Both the agreements were entered into by the Complainants with the Opponent on 12.04.1993. However through there were two agreements and the flat numbered as two flats, the premises covered under both the agreements consisted of only one single flat admeasuring 800 and 500 sq.ft. respectively. In accordance with the two agreements, the Opponents were bound to construct one single flat admeasuring 1300 sq.ft. built-up area and possession was to be handed over to the Complainant by July, 1993. The Opponent did not complete construction in time and handed over possession on 05.12.1997. The Opponent constructed the flats covered under both the agreement as one single flat with main entrance door, one kitchen and provided one electric meter with Consumer No.G-11492374 and other amenities meant for one single flat. According to Complainants for delayed payments the agreement stipulated interest @12% per annum but Opponent demanded interest @18% per annum for delayed payment from the Complainants. So Complainants are also entitled to claim interest @18% per annum from the Opponents for inordinate delay on their part in handing over possession of the flat. Total cost of the flat was `9,10,000/-. The Opponent agreed to hand over possession by July, 1993 but possession was given on 05.12.1997. Therefore, Complainant pleaded that they are entitled to claim interest @18% per annum from August 1993 to November, 1997 amounting to `7,09,800/-. Complainants further pleaded that instead of total area of the flat which would have been 1300 sq.ft., on measurement they found actual flat area of 1100 sq.ft. So area of 200 sq.ft. was found short.
Therefore, Opponents are bound to refund excess amount paid by the Complainants @`700/- per sq.ft. amounting to `1,40,000/-.
They also pleaded that Opponent agreed to provide teak wood doors but they provided commercial quality flush doors and difference in costs comes to `35,000/- for 8 doors. They demanded the said amounts from the Opponent, but opponent refused to do so and therefore, they sent registered notice through Advocate K.N.S. Pillai on 29.03.1999 and claimed amount of `8,84,000/- along with `1,000/- as notice charges. After receipt of notice the Opponent addressed letter dated 09.4.1999 and took up a contention that they had given a writing for full satisfaction of the work before taking possession of the flat. The Complainants pleaded that they were forced to record satisfaction note before handing over possession of the flat by the Opponent. They pleaded that even additional lift is not provided by them though they admitted and therefore, the Opponent should be directed to provide additional lift.
(2)Opponent filed written version and denied the allegations made by the Complainants.
According to Opponent there was no compulsion for the Complainant to enter into two different agreements, one in his name and one in his wifes name for Flat Nos.103-B and 104-B. This was done to suit convenience of Complainant.
Opponent also pleaded that there was no compulsion to construct a singly flat of 1300 sq.ft. The possession of the flat was taken by the Complainants with due inspection and electric meter was installed at his request with larger capacity and amperage. The Opponent pleaded that Complainants were not entitled to get interest @18% for any delay in handing over possession because Complainant came for registration in the year 1998 and deed of confirmation was executed on 4th July, 1998 by the Complainant. Opponent pleaded that on 12.05.1999 Complainants requested for allotment of specific parking space and even at that time he had not made any grievance for delay in handing over possession because Complainants were knowing that legal proceeding was pending and it was ultimately decided in favour of the Opponent.
Opponent even deposited `10,00,000/-
with the corporation. The Opponent pleaded that there was no shortage in the area given and therefore, the Complainant is not entitled to get refund of `1,40,000/- as alleged. Opponent pleaded that Complainant had given three cheques for the total amount of `49,500/- and he had requested not to present in the Bank for encashment.
So, Complainants have not yet paid the said amount of `49,500/-. Opponent pleaded that there is no shortage in area, there is no delay on its part.
Even second lift has been installed and Complainants had not paid the total amount as per the agreement and the Opponent has to still recover `49,500/- from the Complainants. The Opponent therefore pleaded that complaint should be dismissed with costs.
(3)Both parties filed affidavit and documents. Complainants even filed brief notes of arguments. Opponents did not file brief notes of arguments.
(4)We heard submissions of Advocate Ms.Anita Marathe for the Complainant. None was present for the Opponent.
(5)We are finding that both the husband and the wife had booked two flats with the Opponent, one was for Flat No.103-B and other was for Flat No.104-B and both had entered into agreement with M/s.Sainath Enterprises, the Opponent. Agreements were executed on 12.04.1993 and though two separate flats were booked the builder had constructed only one flat admeasuring 1300 sq.ft. built up area. The Complainants were put in possession of the premises on 05.12.1997, though in the agreement date mentioned for giving possession to the Complainant was in July, 1993. So, admittedly there was delay of 4 years and 5 months. At this juncture it is better to look Clause 13 of the Agreement.
Clause 13 of the Agreement clearly stipulated that the Promoters further agree and confirm that if there is any delay in giving possession to the Purchaser on account of any reason other than the above, then they shall pay to the Purchaser a simple interest at the rate of 12% per annum from the stipulated date of possession till the date of possession. In written version the plea has been taken by the opponent that delay in handing over possession was known to the Complainant that there was legal proceeding going on which subsequently ended in favour of the Opponent. However, the legal proceeding copy of which is placed on record, is pertaining to Civil Suit No.549/1993. It is seen that Powai Lake Co-operative Housing Society Ltd. and Engineers Co-operative Housing Society Ltd. together had filed same suit against Gopal Sharma, Gopal Housing & Plantation corporation and Sainath Enterprises. Order sheet shows that Notice of Motion was presented by the Plaintiff and both parties were absent since long and ultimately notice of motion was dismissed for default on 19.10.1995. So, other than this proceeding there is nothing produced on record by the Opponent to show that he was prevented by an order of injunction of the Court from proceeding with the construction. In fact, in the certified copy of the order sheet, Notice of Motion in Civil Suit No.549/1993, nowhere it is mentioned that Bombay City Civil Court has passed any order of injunction on notice of motion.
So, there is nothing on record to show that M/s.Sainath Enterprises, Opponent herein was prevented by any Court order from proceeding with construction of Building No.04 in Powai Vihar Complex.
So, there is no merit in the contention of the opponent that because of legal proceeding they were prevented from going ahead with the construction. Moreover, the notice of motion was dismissed for default in the year 1995 itself and possession was given ultimately on 05.12.1997. So, there is no justifiable ground for the opponent to contend that because of circumstances beyond their control including the Court order, if any, they were prevented from making construction. Date of possession mentioned in the agreement was July, 1993 and actual possession was given to both the Complainants on 05.12.1997. So, there was no justifiable ground for the delayed possession of 4 years and 5 months and for this purpose in terms of Clause 13 of the Agreement for Sale, over the total amount of `9,10,000/-
paid, the Complainants are entitled to get interest @12% per annum as per agreement between the parties. Total amount of interest comes to be payable shall be from August, 1993 to 5.12.1997 @12% per annum on the total costs of `9,10,000/-
already paid by the Complainant to the Opponent. This is the relief we can grant for delayed possession.
(6)Secondly, we are finding that the grievance of the complainant is that the two flats together should have a built up area of 800 sq.ft. + 500 sq.ft. = 1300 sq.ft, whereas, actual built-up area of the flats given in possession of the Complainants which is one single unit in place of two flats is only 1154.66 sq.ft., so there is shortfall of 145.34 sq.ft., for which shortfall the amount of `1,40,000/-
has been claimed by the Complainants @`700/- per sq.ft. Complainants have also filed affidavit of one Mr.Hitendra K. Mehta, an Architect before us in support of their case. Mr.Hitendra Mehta is practicing Architect at Mumbai. He had measured flats of the Complainants on 26th March, 2011.
He verified the same with two separate agreements dated 12.04.1993 of the disputed flats and he issued certificate dated 26th March, 2011 and he found that in place of total built-up area of 1300 sq.ft., the built-up area was 1154.66 sq.ft. So, there is deficiency of 145.34 sq.ft. Affidavit and certificate sworn by Mr.Hitendra K. Mehta of H. Mehta & Associates, who is registered Architect, who was employed by the Complainant to measure the flat makes this fact very clear. So, Complainant is entitled to get refund of `1,01,738/-
(145.34 sq.ft X `700/- per sq.ft.).
(7)The Complainant has also made out a grievance in the complaint that in place of teak wood, the promoter developer had used another wood of lower quality and therefore, he was entitled to get difference of `35,000/-. Complainant herself gave calculation in computation of claims which Complainant filed on 22.09.2011. In that she had mentioned that amount of difference of commercial wood in place of teak wood for doors would come to `9,200/-. So we hold that Complainants are also entitled to get `9,200/- by way of refund for the substandard wooden doors installed in the said flat.
(8)In the light of the discussion made above, we find that the complaint deserves to be allowed partly.
Complainant has proved that there has been deficiency in service on the part of the opponent builder developer and Complainant has rightly made out case for deficiency in respect of giving lesser built-up area than agreed. The Complainant has also proved that there has been delay in giving possession of the flat and as such Complainants are entitled to get interest @12% per annum on the amount they had paid from the agreed date of possession till the actual date of possession. Complainants are also entitled to get amount of `9,200/- for providing substandard doors in the flat as they agreed to provide doors of teak wood and on that count the amount claimed of `9,200/-
is appearing to be just and reasonable.
In the light of the discussion, we are inclined to allow this complaint partly and pass the following order:
O R D E R
(i) Complaint is partly allowed.
(ii) Opponent M/s.Sainath Enterprises is directed to pay `1,01,738/- for giving shortage in built-up area and `9,200/-
for using the lower quality wood in place of teak wood for the doors.
(iii) The Opponent M/s.Sainath Enterprises is directed to pay interest @6% per annum on the aforesaid amounts i.e. `1,01,738/- and `9,200/- from the date of filing of this complaint till the actual payment is made.
(iv) Opponent M/s.Sainath Enterprises is directed to pay interest on `9,10,000/- @ 12% per annum from the agreed date of possession till the actual date of possession.
(v) M/s.Sainath Enterprises is also directed to pay `5,000/- towards costs of the complaint.
(vi) Inform the parties accordingly.
Pronounced Dated the 8th day of November, 2011.
[Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mr. Dhanraj Khamatkar] Member ep