State Consumer Disputes Redressal Commission
Dr. Prasad M Pachchhapurkar & Ors. vs M/S Vighnahar Developers & Ors. on 21 June, 2012
C-59/2009
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/09/59
1.DR. PRASAD M PACHCHHAPURKAR 2A/102 1 ST FLOOR, VIGHNAHAR COMPLEX, SECTOR 12, KHARGHAR, NAVI MUMBAI 410210 Maharastra
2. Dr. Neena Prasad Pachchhapurkar 2A/102, 1st Floor, Vighnahar Complex, Sector 12, Kharghar, Navi Mumbai - 410 210.
Maharashtra
3. Mr. Madhav V. Pachchhapurkar 2A/102, 1st Floor, Vighnahar Complex, Sector 12, Kharghar, Navi Mumbai -410 210.
Maharashtra ...........Complainant(s) Versus
1. M/S VIGHNAHAR DEVELOPERS 117 CENTRAL FACILITY BLDG (PHASE-II), ABOVE STATE BANK OF SAURASHTRA, SECTOR 19, VASHI, NAVI MUMBAI Maharastra
2. Shri. Ladha Punja Ravaria Partner, M/s. Vighnhar Developers having their office at Plot No. 5 and 6, Sector 14, Palm Beach Road, Nerul, Navi Mumbai.
Maharashtra.
3. Shri. Dinesh Keshavaji Patel Partner, M/s. Vighnhar Developers having their office at Plot No. 5 and 6, Sector 14, Palm Beach Road, Nerul, Navi Mumbai.
Maharashtra
4. Shri. Vershi Khimji Dama Partner, M/s. Vighnhar Developers having their office at Plot No. 5 and 6, Sector 14, Palm Beach Road, Nerul, Navi Mumbai.
Maharashtra
5. Shri. Vijay Ravji Gajra Partner, M/s. Vighnhar Developers having their office at Plot No. 5 and 6, Sector 14, Palm Beach Road, Nerul, Navi Mumbai.
Navi Mumbai Maharashtra
6. Shri. Govind Dhanji Varchand Partner, M/s. Vighnhar Developers having their office at Plot No. 5 and 6, Sector 14, Palm Beach Road, Nerul, Navi Mumbai.
Maharashtra
7. Shri. Kashavaji Gangji Gala Partner, M/s. Vighnhar Developers having their office at Plot No. 5 and 6, Sector 14, Palm Beach Road, Nerul, Navi Mumbai.
Maharashtra ............Opp.Party(s) BEFORE:
Hon'ble Mr. S.R. Khanzode PRESIDING MEMBER Hon'ble Mr. Narendra Kawde MEMBER PRESENT:
None present.
O R D E R Per Shri S.R. Khanzode Honble Presiding Judicial Member:(1)
This consumer complaint pertains to a relief claiming performance of certain obligations by the builder towards the flat/shop purchasers.(2)
It is the case of the Complainants that the Complainants purchased two flats bearing Nos.1-B/101 and 2-A/102 in Vighnahar Complex developed and constructed by Builder Vighnahar Developers and Others (hereinafter referred to as the Opponents). According to them, they also agreed to purchase one Shop bearing No.38. The agreements were accordingly executed on 28/03/2006. It is the contention of the Complainants that along with the flat he had purchased accompanying terrace and they were promised to provide separate access by way of staircase from the ground floor shop to the terrace on the first floor by constructing a staircase. They were put in possession of the property on payment of the entire consideration.
However, the Opponents failed to issue a formal possession receipt in their favour. Thereafter, the residents of the Vighnahar Complex started giving trouble over the use of the terrace. They had to file a Civil Suit to protect their interest. In addition to it, they had filed this consumer complaint inter alia claiming the following reliefs.:
a) The Opponents may be directed to issue possession letter to Complainants for the 2 flats i.e. flat no.1-B/101 and 2-A/102 along with terrace abutting thereto in the said Vighnahar Complex, Sec.12, Kharghar, ii) to provide segregative wall segregating two terrace from common area as agreed iii) to provide segregative wall between two terraces of 2 flats as agreed iv) independent access through separate staircase as agreed upon by the opponent v) two open to sky air cutout to the podium of the common terrace and one staircase for the first floor.
b) The Opponents may be directed to pay amount of `40,00,000/- (Rupees Forty Lacs only) by way of the cost, compensation and damages.
c) That pending the proceeding and final disposal of this complaint, interim, ad-interim relief in favour of the Complainant may be passed.
d) Any other and further relief as this Honble Commission may deem fit and proper in favour of the Complainant may be passed.
e) Cost of this complaint may be provided for.
(3)The Opponents resisted the consumer complaint stating that the complaint is misconceived. They categorically denied that any terrace was sold to the Complainants and that they promised to put a staircase to the first floor terrace as stated by the Complainant. They further claimed that there is interpolation in the agreement by inserting the matter referring to a staircase. It is also contended on their behalf that in contravention of the restrictions put by CIDCO, the Complainants are using their premises for hospital purpose i.e. for commercial purpose and not for residential purpose. Denying the claim in toto, they asked to dismiss the consumer complaint.
(4)After written version was filed by the Opponents, both parties were directed on 08.04.2010 to lead evidence as per Provisions of Section 13(4) of the Consumer Protection Act, 1986. On next dates i.e. 23rd June, 2010 and on 17th August, 2010, no such evidence was led. On 17th August, 2010, since no evidence was led and even both the parties failed to pay the costs as a condition precedent to lead evidence as per order dated 23rd June, 2010; the stage of evidence was declared as over and the matter was posted for arguments directing parties to comply provisions of Regulation 13(2). On the subsequent date i.e.19th July, 2011, the Counsel for the Complainants remained absent and Counsel for the Opponents sought time to file brief notes of arguments and accordingly matter was posted to 20/10/2011. Again the time was sought by both the parties and accordingly the matter was posted to 25/01/2012. On 25/01/2012 Complainants and their Counsel were absent. Opponents by their proxy Advocate was present and on the ground of illness of the Advocate on record, an adjournment was sought, which was granted and the matter was adjourned to 14th June, 2012. On 14th June, 2012 since both the parties remained absent, treating that the parties failed to advance any arguments, the matter is closed for orders and adjourned for today.
(5)In this case, in view of the dispute raised by the parties as per their respective pleadings, it is for the Complainants to prove that the Opponents failed to discharge the contractual obligations and therefore, committed deficiency in service. The Complainants failed to discharge such onus on them. In the circumstances, we find that the Complainants failed to establish their case and holding accordingly, we pass the following order:
O R D E R Complaint stands dismissed.
In the given circumstances, both the parties to bear their own costs.
Pronounced on 21st June, 2012.
[Hon'ble Mr. S.R. Khanzode] PRESIDING MEMBER [Hon'ble Mr. Narendra Kawde] MEMBER ep