State Consumer Disputes Redressal Commission
Consumer Welfare Association vs Crystal Constructions Corporation on 26 September, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Consumer Complaint No.CC/15/746
1.Consumers Welfare Association
Through its Authorized Signatory
Mr.Jehangir Gai
402, B wing, Ashoka Complex
Justice Ranade Road
Dadar, Mumbai 400 028.
2. Mr.Bakhtiar Ahmed Khan
R/o.Petronella CHS (Proposed )
Flat no.1, 1st floor
63, Ambedkar Road
Pali Village, Bandra (West),
Mumbai 400 050 .....Complainants
Versus
1.Crystal Construction Corporation
Through partners -O.P.nos.2&3
11, Classic, 'C' wing
Shaffi Compound
Dharavi Main Road
Mumbai 400 017.
2.Mr.Waseem Quereshi
Lunawada Mansion
4th floor, Terrace flat
Lady Jamshedji Road
Mahim, Mumbai 400 016
3.Mr.Fasiuddin Quereshi
Hill Grade Building, 1st floor
Opp.HDFC Bank
Pali Naka, Ambedkar Road .........Opponents
Bandra(West), Mumbai 400 050
BEFORE: Smt.Usha S.Thakare, Presiding Judicial Member
A.K.Zade, Member
1
ORDER
Per Hon'ble Smt.Usha S. Thakare, Presiding Judicial Member
The present consumer complaint is filed by the complainants by alleging deficiency in service against the opponents under section 12 r/w. section 17 of Consumer Protection Act, 1986. Complainant no.1 is a voluntary consumer association. Complainant no.2 is the actually aggrieved consumer in respect of Housing Construction services rendered by opponents. The opponent no.1 is unregistered partnership firm of builders and contractors, whose partners are opponent nos.2&3.
2. Complainant no.2 required residential accommodation for personal use. The opponents had undertaken a project of constructing building at Shaffi Compound, CST No.35 situated at Dharavi, Mahim, Mumbai. Complainant no.2 booked a flat for consideration of Rs.36,50,000/- from the project of opponent by paying an amount of Rs.50,000/-. An allotment letter was issued on 08/04/2009. Complainant then paid an amount of Rs.35,00,000/- by cheque dated 08/05/2009. Complainant no.2 paid total amount of Rs.35,50,000/-. Balance amount was merely Rs.1,00,000/-. The opponents after continuous follow-up issued another allotment letter in which the said amount and balance amount was recorded. The opponent admitted that construction had been delayed but would be completed within 18 months from the receipt of remaining approvals from MHADA. On 16/08/2013, opponents gave a signed agreement for sale. However, opponents avoided for registration of said agreement.
3. It is alleged that the building has not come up till date. Even the construction has not yet commenced. Complainant no.2 sent letter dated 09/10/2014 calling upon opponent to enter into registered agreement or cancel the booking and to make payment as per market value of the flat. Opponent failed to respond said letter. The market value of the flat which was booked in 2009 now exceeds a crore. Due to financial and health 2 problems, complainant has restricted his claim to Rs.1 crore. Complainant has requested to direct the opponents to pay jointly and severally an amount of Rupees one crore towards the market value of the flat and to pay interest @ 10% p.a. from the date of filing of the complaint till actual payment.
4. Opponent no.1 resisted the claim by filing written statement and denied allegations of deficiency in service. It is submitted that the complaint is based purely on surmises and conjunctures. The complainants have filed complaint with malicious intention by suppressing material facts. Complainant no.2 is very well aware of the reasons for the delay in commencing the construction of the building before filing the present complaint, which are beyond the control of opponents. By taking undue advantage, the complainant is trying to extort money from the opponents. It is submitted that complainant no.2 and partner of opponent no.1 had several joint meetings and the complainant no.2 was informed to take the money back which was paid by him to opponent no.1 since for the reasons of difficulty in getting approval and permissions, as the Government has introduced Dharavi Redevelopment Project for Dharavi area. Complainant no.2 had approached opponent no.1 in the year 2009 asking for residential premises in proposed building. Opponent had received IOD in the year 2006. On getting IOD, opponent no.1 had issued allotment letter dated 08/04/2009 to complainant no.2 in proposed building. Opponent no.1 was following with the BMC office to obtain the C.C. However, while complying with the conditions of IOD to apply for C.C., opponent no.1 was informed that entire project has been taken over by the Government under Dharavi Redevelopment Project and any development in Dharavi area will be handled by MHADA under Dharavi Redevelopment Project.
5. It is further informed that no permission will be granted by BMC. Opponent no.1 approached Dharavi Redevelopment Project to get the proposal cleared by them but as there was no clarity in Dharavi 3 Redevelopment Project by MHADA to clear the project, the project of opponent no.1 was stalled.
6. It is added that IOD was revised by MCGM Byculla till 2010 and fees were also paid for the revision vide letter dated 22/07/2009. Thereafter, entire project was taken over by SRA & MHADA under Dharavi Redevelopment Project. In the year 2011, vide letter dated 09/12/2011 Opponent no.1 again submitted revised plans for approval of Deputy Chief Engineer, Dharavi Redevelopment Project, SRA for issuing permissions which was earlier given by BMC. Vide letter dated 17/06/2014, addressed to the Chief Executive Officer, Dharavi Redevelopment Project, opponent no.1 requested for approval to the building plans. However, opponent no.1 has not received any reply of letter dated 17/06/2014. Since complainant no.2 was asking for status of the approvals and construction of building, opponent no.1 informed that opponent no.1 could not get approvals within time due to shifting of the approval department from BMC to MHADA and it will take some time to get the approvals. It is also informed that opponent no.1 will complete the construction within the period of 18 months from the date of receipt of remaining approvals from MHADA. Many attempts were made by opponent no.1 to get the approvals and to construct the proposed building. Without the permission from Dharavi Redevelopment Project department, opponent no.1 cannot complete the construction of the building. It is denied that agreement dated 16/08/2013 was executed and not signed by opponent no.1. There is no deficiency in service. The complaint is liable to be dismissed under section 26 of Consumer Protection Act, 1986.
7. Opponent no.2 by filing written version denied the allegations of deficiency in service and his liability as partner of opponent no.1. It is submitted that the contents of the complaint are not true and correct. The complaint is filed with malicious intention by suppressing material facts. It is submitted that opponent no.2 is not concerned with the business of 4 opponent no.1. There is no deficiency in service and the complaint is liable to be dismissed with costs.
8. Opponent no.3 opposed the claim by filing written version and denied all adverse allegations. It is submitted that the complaint is not tenable. It is false and frivolous. He has denied that he is partner of opponent no.1. There is no deficiency in service and the complaint is liable to be dismissed with costs.
9. Under these circumstances, following points arise for our determination and we record our findings for the reasons below:-
Sr.No. Points Answer
1 Whether complainants have proved Yes
that opponents are guilty of
deficiency of service?
2 Whether complainant no.2 is entitled Yes
for relief?
3 What order? As per final order.
10. Complainant no.2-Mr.Bakhtiar Ahmed Khan has filed affidavit in lieu of evidence and relied on several documents. He has placed on record allotment letter dated 08/04/2009, which is at 'Exhibit A'. Second allotment letter dated 03/07/2012 is at 'Exhibit B'. Agreement dated 16/08/2013 is at 'Exhibit C'. Letter dated 09/10/2014 signed by complainant no.2 along with postal acknowledgement is at 'Exhibit D'.
11. To give counter blow, partner Mr.Fasiuddin Quereshi of M/s.Crystal Construction Corporation-opponent no.1 has led his evidence by filing an affidavit. Opponent nos.2 & 3 did not file affidavit of evidence in support of their contentions. In fact direction was given to file affidavit of evidence on 06/01/2016. Both the parties have filed brief notes of arguments.
5Opponent nos.2&3 have not filed brief notes of arguments.
12. Heard Learned Authorized Representative Mr.J.B.Gai for the complainants and Learned Advocate Mr.Sagar Talekar for the opponents.
As to point no.1:-
13. It is admitted fact that opponent no.1 had undertaken a project of construction of building at Shaffi Compound, CST No.35 situated at Dharavi, Mahim, Mumbai. Complainant no.2 had booked a flat for consideration of Rs.36,50,000/-. He paid an amount of Rs.50,000/- to opponent no.1 on 08/04/2009. Allotment letter dated 08/04/2009 is at 'Exhibit E', which is signed by partner of opponent no.1. Said allotment letter shows that flat was allotted to complainant no.2 in a residential building in D wing, which is to be constructed on plot bearing no. CST No.35 at Shaffi Compound, situated at Dharavi, Mahim, Mumbai 400 017. Said flat would be of one bedroom, hall and kitchen. Total value of the flat was agreed as Rs.36,50,000/-. Payment of Rs.50,000/- on 08/04/2009 was admitted by opponent no.1 in 'Exhibit E'.
14. Vide 'Exhibit B' dated 03/07/2012 the opponent no.1 admitted receipt of Rs.35 lakhs from the complainant and balance is shown as Rs.1,00,000/-. Amount of Rs.35 lakhs was paid to opponent no.1 by pay order. Opponent no.1 informed to complainant no.2 that opponent no.1 got IOD from BMC in respect of proposed building. However, due to shifting of approval department of BMC to MHADA, opponent no.1 could not get approval within time. Opponent no.1 informed that construction of building is delayed due to reasons beyond their control. However, opponent no.1 assured that construction of the building will be completed within a period of 18 months after receipt of permission and remaining approvals from MHADA.
15. It is evident that opponent no.1 signed agreement for sale on 16/08/2013. Copy of the agreement for sale is at 'Exhibit C' but it is not 6 registered. As per agreement of sale, opponent no.1/developer agreed to give flat to the purchaser i.e. complainant no.2 on or before 21/05/2015. Till today, complainant no.2 did not receive possession of the flat, particularly, when he had paid amount of Rs.35,50,000/- to opponent no.1 way back in May 2009. Till today complainant no.2 is waiting for possession of dream house.
16. It is brought to our knowledge by learned Authorized Representative that complainant no.2 has booked the flat in the year 2009. He is now 71 years of age. He is not able to buy any other flat for the same price. Therefore, he is entitled to get refund of amount as per market value of the flat.
17. Per contra, learned Advocate Mr.Talekar vehemently urged that building could not be constructed for the reasons which were beyond the limit and control of opponent no.1. Complainant no.2 was well aware about the reasons of delay. The fact is within knowledge of complainant no.2. Still he has filed consumer complaint to extort money. Complainant no.2 was informed in joint meeting to take back the money which he had paid.
18. Opponent no.1 had received IOD in the year 2006. Allotment letter was issued to complainant no.2 on 08/04/2009. While complying conditions of IOD, opponent no.1 was informed that entire project was taken over by Government under Dharavi Redevelopment Project. Any development in Dharavi area will be handled by MHADA. Opponent no.1 came to know that no permission will be granted by BMC. It is for opponent no.1 to approach the proper authority and to seek required approvals. Opponent no.1 and its partners cannot take benefit of not getting approvals from MHADA or Dharavi Redevelopment Project. Opponent no.1 has not filed on record letters, correspondence with BMC or MHADA or Dharavi Redevelopment Project to prove that opponent no.1 was keen in 7 getting approvals to construct the building. Mere submission is made that opponent no.1 was trying to get approvals from MHADA, but till today proposal filed by opponent no.1 is not cleared by MHADA or Dharavi Redevelopment Project.
19. Opponent no.2 received letter cum notice issued by complainant, which is at 'Exhibit D'. After receipt of letter 'Exhibit D', opponent no.2 never tried to refund amount of Rs.35,50,000/- to the complainant no.2. Opponent no.2 utilized the amount paid by complainant no.2 since 2009. Even after receipt of huge amount, the agreement was not registered. It is necessary to register the agreement as per Maharashtra Ownership Flats' Act, 1963 (MOFA). Complainant no.2 by letter dated 09/10/2014 called upon the opponent no.1 to enter into registered agreement or cancel the booking and to pay market value of similar flat. Opponent no.1 received the said letter. Acknowledgement is on record. Opponent no.1 failed to respond said letter.
20. In written version opponent no.1 admitted that there is delay in commencement of project. Reasons for delay are attributed due to change of approval authority from BMC to MHADA. But evidence to that effect is not produced. It is clear from the evidence on record and admission in written version that project is not yet commenced. There is inordinate delay in handing over possession of booked flat to the complainant after receipt of huge amount of Rs.35,50,000/-. It is for the opponents to overcome the difficulty. The opponents failed to execute registered agreement after receipt of Rs.35,50,000/- from complainant no.2 and failed to hand over possession within stipulated time. All these facts are sufficient to hold that opponents are guilty of deficiency in service.
21. Opponent nos.2&3 in their written version denied that they are partners of opponent no.1. They have not denied this fact on oath. They have preferred not to file affidavits of evidence. Opponent no.1 is 8 unregistered partnership firm of builders and contractors. The fact is within the knowledge of opponents as to who are the partners of the firm. Documents of unregistered partnership firm must be within the knowledge and custody of the opponents. They have failed to file the material documents on record. It is necessary to draw adverse inference against the opponents. There is nothing on record to disbelieve version of complainant that opponent nos.2 &3 are the partners of opponent no.1. The evidence on record coupled with documents is sufficient to prove that the opponents are guilty of deficiency in service. Hence, we answer point no.1 for determination in affirmative.
As to point nos.2&3:-
22. We have already held that opponents are guilty of deficiency in service.
23. Complainants have claimed an amount of Rupees one crore as the market value of the flat allotted to complainant no.2. Complainant no.2 had booked the flat for an amount of Rs.36,50,000/- from the project of the opponents. Now he will not get flat of same area and size with amenities for an amount of Rs.36,50,000/-. Complainant has not adduced evidence to prove that the market value of the flat in said area is Rupee one crore.
24. However, complainant has filed copy of Ready Recknor for the year 2016-2017 of Division Mahim. As per Ready Recknor, value of the land plus building is Rs.2,82,100/- per square meter. Unregistered written agreement shows that area of the flat booked by the complainant is 27.9 sq.meters. As per Ready Recknor, value of the booked flat comes to Rs.78,70,590/-. The recitals of para 2 of unregistered agreement shows that the complainant agreed to purchase flat no.401 of built up area admeasuring 27.90 sq.meters which is inclusive of the area of balconies of 4th floor as shown in the Floor Plan of "Amin Apartments" building. The developers agreed to sell said flat to the purchaser/complainant no.2. The project is not 9 yet started. Therefore, complainant no.2 is entitled to get refund of the price of the flat as per Ready Recknor. Opponent nos.2 & 3 are the partners of opponent no.1 firm. They are jointly and severally liable to repay the price of the flat booked by the complainant no.2 as per ready recknor with interest @ 9% p.a. from the date of order on Rs. 78,70,590/- i.e. since 26/09/2017.
25. The opponents are jointly and severally liable to pay an amount of Rs.78,70,590/- to complainant no.2 with interest @ 9% p.a. from 26/09/2017 till realization of the amount. Complainant no.2 is entitled for an amount of Rs.25,000/- towards costs of the litigation. Hence, we pass the following order:-
ORDER
1. The consumer complaint is partly allowed.
2. The opponents do pay jointly and severally an amount of Rs.78,70,590/- to complainant no.2 with interest @ 9% p.a. from the date of order i.e.26/09/2017 till realization of the amount.
3. The opponents do pay jointly and severally an amount of Rs.25,000/- towards costs of the litigation, to the complainant no.2.
4. The opponents are directed to comply the order within a period of three months, failing which, the amount awarded shall carry interest @ 12% p.a. till realization.
5. Copies of the order be furnished to the parties.
Pronounced on 26th September, 2017.
[USHA S.THAKARE] PRESIDING JUDICIAL MEMBER [A.K.ZADE] MEMBER Ms 10