National Consumer Disputes Redressal
Sajit Pisharodi & Anr. vs Merino Shelters Pvt. Ltd. & Anr. on 27 August, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1380 OF 2015 1. SAJIT PISHARODI & ANR. FLAT NO. 603, BUILDING NO. 55, NRI COMPLEX-II, SEAWOODS CHS, SECTOR-58, NERUL-WEST, NAVI MUMBAI-400706 ...........Complainant(s) Versus 1. MERINO SHELTERS PVT. LTD. & ANR. MAIN HOUSE, 101, S.V. ROAD, VILE PARLE(W), MUMBAI-400056 MAHARASHTRA 2. MR. NIKHIL R, MANSUKHANI DIRECTOR/ ATURISED SIGNATORY, MAIN HOUSE, 101, S.V. ROAD, VILE PARLE(W),
MARINEO SHELTERS PVT. LTD. MUMBAI-400056, MAHARASHTRA ...........Opp.Party(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Complainant : Mr. Madhurendra Kumar, Advocate with
Mr. Sajit Pisharodi, complainant no.1 in person For the Opp.Party : For the OPs : Mr. Alok Shankar, Advocate with
Ms. Priyambada Mishra, Advocate
Dated : 27 Aug 2019 ORDER
These complaints have been filed by the complainants, who were aggrieved by the acts and omissions of opposite party Merion Shelters Pvt. Ltd.. As the facts of these complaint cases are similar, they are being decided together. However, CC No.1377 of 2015 will be taken as lead case for the purpose of mentioning the facts and dates.
2. Brief facts of the case in CC No.1377 of 2015 are that the complainants were allotted flat No.E-401 in the project, namely 'Man Valley Vista" on 18.02.2010 and the total consideration of the flat was Rs.1,56,00,000/-. Complainants paid Rs.1,26, 00,000/-. It has been alleged in the complaint that the possession of the flat has not been handed over to the complainants so far. It has been further alleged that there was an order of the Municipal Authority to stop work, however, the opposite parties entered into the builder buyer agreement. The agreement with the complainants was in violation of the stop work order of the Municipal Authority. It has been prayed in the complaint that the opposite party may be directed to handover the physical possession of the fully developed and habitable flat within a reasonable time and to award compensation for late possession.
3. Vide order dated 10.11.2016 of this Commission the written statement filed by the opposite parties was not accepted as the same was not filed within statutory period. Accordingly, the complainants filed the evidence by way of affidavit.
4. Heard the learned counsel for both the parties and examined the record. Learned counsel for the complainants first gave a brief picture of the four complaints which is described in the following table:-
File No.
Area of Flat
Date of allotment and allotted flat
Date of Agreem-ent
Total consideration
(in Rs.)
Amount paid
(in Rs.)
CC/1377/2015
1880 sq.ft. (useable carpet area)
Flat No.401
18.2.2010
2-12-2010 1,56,00,000 1,26,00,000 CC/1378/2015 1880 sq.ft. (useable carpet area) Flat No.1302 22.5.2009 03-2-2011 1,18,62,500 86,00,000 CC/1379/2015 1880 sq.ft. (useable carpet area) Flat No.1201 25.3.2010 30-7-2010 1,21,84,000 93,30,425+592000 (stamp duty) CC/1380/2015 1880 sq.ft. (useable carpet area) Flat No.1602 21.6.2010 20-9-2010 1,33,75,400 14,00,000
5. Learned counsel for the complainants reiterated the facts mentioned in the complaint. He further stated that the opposite parties have given a time frame to the RERA that the flats will be ready by 2022. Vide e-mail dated 31.03.2015, the opposite parties informed that the area of the flat has been increased. The learned counsel argued that when the complainants have entered into an agreement with the opposite party, then both parties are bound by the agreement, hence, the complainants are not willing to take the flats with increased area and they want flats of 1880 sq.ft. area only (contracted area).
6. On the other hand learned counsel for the opposite parties stated that in complaint No.1380 of 2015 only Rs.14,00,000/- has been paid whereas the total consideration of the flat was Rs.1,33,75,400/-, and the full subsequent payment has not been paid by the complainant in this case so far. There cannot be any question of giving possession of the flat.
7. The learned counsel argued that in the allotment letter dated 18.2.2010, the following was already informed to the complainant:-
"The tentative plan of the said Flat has been shown to you and you have accepted the same. However, we reserve the right and entitlement to change and/or alter the said plan, drawings, Amenities, Facilities etc. If required pursuant to the approval & sanction of MIDC and/or any other Competent Authority. The final discretion will remain with us at all times."
8. When the Municipal Authority stopped the work in the project, it has taken roughly three years to restart the work after the order of the Hon'ble High Court and the revised plan was approved by the competent authority. In the revised plan, there are no flats of area 1880 sq.ft., however, flats are of 2300 sq.ft. area and, therefore, it is not possible to give flats of the agreed size and therefore, in the account statement sent to the complainant vide e-mail dated 31.03.2015 the excess area of the flat has been shown and price charged. If the complainants are unable to accept the flats with the revised area, they can opt for refund. In fact, the opposite parties sent intimation to 110 buyers and most of them have taken refund, however, these four buyers are pursuing the complaint.
9. I have carefully considered the arguments advanced by both the learned counsel for the parties and have examined the record. The learned counsel for the complainants has himself argued that the opposite parties have submitted information to RERA that they will complete the construction of the houses by the year 2022. Moreover, in the revised plan the flats of area 1880 sq.ft. are not available and revised area is 2300 sq.ft.. Clearly under these circumstances, the complainants will have to pay more for the excess area of the flat if they wanted to take the possession. However, the complainants are not ready to pay the excess amount as their argument is that they have contracted with the opposite parties for flats of 1880 sq.ft. and therefore opposite parties are bound to give flats of 1880 sq.ft.. Looking to the practical side of the whole case, it has to be realised that under the revised plan, there is no flat of 1880 sq.ft. and if the complainants do not want to take the excess area of the flat, the only alternative is that the amount paid by them be refunded to the complainants along with reasonable interest. In any case, a person who has booked flat in the year 2010, cannot be asked to wait till 2022 to get the flat. Hence, from all angles, the only relief that can be granted to the complainants is the refund of the paid amount with appropriate interest.
10. Based on the above discussion, the complaints are disposed of with the direction to the opposite parties to refund the amounts paid by the complainants in each case along with interest @10% p.a. from the date of respective deposits till actual payment. The opposite parties shall also pay cost of litigation as Rs.20,000/- (rupees twenty thousand only) to the complainants in each complaint. This order be complied with by the opposite parties within a period of 10 weeks from the date of receipt/service of this order.
...................... PREM NARAIN PRESIDING MEMBER