State Consumer Disputes Redressal Commission
Dilip Kumar Jayaswal vs M/S Housing Development & ... on 8 February, 2018
CC/15/182
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint Case No. CC/15/182
1. Dilip Kumar Jayaswal
2. Santosh Kumar Jayaswal
R/o. 25, Swami Apartment,
Khodi Ambli, Kalupur,
Ahmedabad-380001, Gujarat.
Residing at present A/8,
Shailesh C.H.S., Anand Nagar,
Vasai (W), Dist. Palghar-401 202
Through Power of Attorney Holder
Mr.Kundan Lal Jayaswal. ...........Complainant(s)
Versus
M/s. Housing Development
& Infrastructure Ltd.
At "HDIL Towers", 9th floor,
Anant Kanekar Marg, Station Road,
Bandra (E), Mumbai - 400 051
Through its General Manager. ............Opponent (s)
BEFORE:
P. B. Joshi PRESIDING JUDICIAL MEMBER
A. K. Zade MEMBER
For the Mr.Kundanlal Jayaswal, A.R. for
Complainant: complainant.
For the Mr.Ajay Pawar, Advocate for
Opponent: opponent.
ORDER
Per Shri P.B. Joshi, Hon'ble Presiding Judicial Member Complainants booked a flat with opponent for consideration of Rs.19,98,570/-. The flat bearing No.203 was admeasuring 930 sq.ft. on 2nd floor, C wing, Sector-6, Building No.1 situated in Paradise City at Chintupada Road, Extension of Kacheri Road, Village-Mahim, Palghar (West). On 22/06/2011 booking amount of Rs.One Lakh was paid by Page 1 of 7 CC/15/182 complainants to opponent. Thereafter, complainants paid different amounts from time to time and total payment of Rs.6,36,025/- was made by the complainants to opponent towards said flat. Agreement was executed on 04/11/2012 and it was registered. However, it was contended that in the agreement area is shown as 61.80 sq.mtrs which is approximately 618 sq.ft. Complainants have contended that by playing fraud on the complainants said area was mentioned in the agreement instead of area of 930 sq.ft. as mentioned in the booking form. Even after said payment and execution of registered agreement, possession was not given and hence, complainants filed consumer complaint with prayer that opponent be directed to hand over possession of said flat. Complainants also prayed that opponent be directed to pay rent of house hired by complainants till actual possession is given to complainants. Complainants also prayed that amount of Rs.20 Lakhs be given to complainants on account of fraud and cheating committed by opponent on the complainants and for harassment and mental agony. Complainants also prayed that interest @ 18% p.a. be given to complainants on the amount paid by complainants.
2. Opponent resisted the complaint by filing written version which is at page-102to107 of complaint compilation. Opponent has not disputed about booking of the flat, agreed consideration, payment made by complainants, however, it was contended that in the booking form area is shown as 930 sq.ft. which is built-up area and in the agreement area is shown 61.80 sq.mtrs as carpet area and hence, there is no fraud or cheating. It was contended that because of shortage of sand and other reasons, project failed and opponent is ready to refund the amount paid by the complainants with interest as per Section 8 of Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and Page 2 of 7 CC/15/182 transfer) Act, 1963. Opponent prayed for dismissal of complaint.
3. Considering the rival contentions of the parties, considering the record and keeping in view the scope of the complaint, following points arise for our determination and our findings thereon are noted for the reasons as below :-
Sr.No. Points Finding
1. Whether there is deficiency on the part of Yes
opponent?
2. Whether complainants are entitled for
Yes
possession of the flat booked by them?
3. Whether complainants are entitled for
No
rent of house hired as claimed?
Whether complainants are entitled for
4. Rs.20 Lakhs on account of fraud, Yes, as per final
cheating and mental agony and order.
harassment suffered by complainants?
5. Whether complainants are entitled for
No
interest @ 18% p.a. on the amount paid?
6. Complaint is partly
What order?
allowed.
REASONS :-
4. Point No.1 (Deficiency) :- It is admitted position that complainants booked a flat, booking amount was paid. Document to that effect was executed by opponent in favour of complainants and then from time to time different amounts were paid by complainants to opponent. However, opponent has not handed over possession of the flat. Thus, it is very clear that there is deficiency in service on the part of opponent in not handing over possession of the flat though agreement was executed in favour of complainants. Hence, we answer Point No.1 in affirmative.
5. Point No.2 (Possession) :- Complainants have paid Rs.6,36,025/- out of total consideration of Rs.19,98,570/- and that is not disputed by Page 3 of 7 CC/15/182 opponent. Even agreement is executed in favour of complainants by opponent in respect of said flat. It is contention of opponent that because of shortage of sand and other reasons, opponent could not complete the project and project failed and hence, opponent is not in a position to hand over possession of the flat. Flat is on second floor of said building. It was contended that construction is completed. Authorised Representative of complainants has drawn our attention to written arguments submitted by Advocate of opponent which is at page-269to274 of complaint compilation. He has specifically pointed out page-270 wherein it is mentioned that opponent has completed the construction work of said building long back in January 2014 and given possession of the flats to other purchasers. However, complainant No.2 failed to come forward to take possession of his flat. Authorised Representative of complainants has submitted that in view of said contention in the written arguments filed by Advocate of opponent, it is very clear that construction is completed and complainants are entitled for possession of said flat which was booked by the complainants and agreement to that effect was executed in favour of complainants. It was contended that in the booking form area was shown as 930 sq.ft. whereas in the agreement by playing fraud area is mentioned as 61.80 sq.mtrs which is equivalent to approximately 618 sq.ft. and hence, complainants are entitled for 930 sq.ft. area. Advocate for opponent has contended that in the booking form area 930 sq.ft. is shown as built-up area and in the agreement 61.80 sq.mtrs is shown as carpet area and no fraud is played about the area.
6. Considering the submissions of A.R. of complainants and considering the fact that complainants have signed said agreement and have not objected for said area mentioned in the agreement, we find it proper to accept contention of opponent. Thus, complainants are entitled Page 4 of 7 CC/15/182 for 61.80 sq.mtrs. carpet area. It is admitted position that total consideration of flat is Rs.19,98,570/-. It is also admitted position that complainants have paid Rs.6,36,025/-. Thus, complainants have to pay remaining consideration of Rs.13,62,545/- to opponent. So, complainants are entitled for possession of said flat on payment of said amount. Hence, we answer Point No.2 in affirmative.
7. Point No.3 (Rent) :- Complainants have contended that as possession of the flat was not given by opponent, they are resided in rental premises and hence, they are entitled for rent of said hired house. However, it was contended by Advocate for opponent that there is no agreement for payment of any rent to complainants. Even there is nothing on record to show that complainants are entitled for any rent as claimed. Thus, we find that complainants are not entitled for any rent as claimed. Hence, we answer Point No.3 in negative.
8. Point No.4 (Compensation) :- Complainants claimed Rs.20 Lakhs as compensation on account of fraud, cheating played by opponent about area and on account of mental harassment suffered by complainants. As far as fraud and cheating is concerned, we have already discussed above the submissions made by both parties. So there is no question of fraud or cheating and no compensation can be granted on that count.
9. As far as compensation on account of mental agony is concerned, we find that even after giving Rs.6,36,025/- by complainants to opponent in the year 2011, possession of the flat was not handed over by opponent to complainants contending that project failed. We find that complainants must have suffered mental agony and hence, they are entitled for some compensation on that count. We find that considering cost of the flat, amount paid and the submissions made by both parties, it will be proper to grant Rs.2 Lakhs as compensation to complainants. Hence, we answer Page 5 of 7 CC/15/182 Point No.4 accordingly.
10. Point No.5 (Interest) :- Complainants claimed interest @ 18% p.a. on the amount paid to opponent. We find that out of total consideration of Rs.19,98,570/- complainants have paid Rs.6,36,025/- from time to time. We have already concluded that complainants are entitled for possession of flat on payment of remaining consideration which was fixed in the year 2011. In view of these circumstances, we find that complainants are getting flat at the rate which was fixed in the year 2011 and hence, complainants are not entitled for any interest as claimed on the amount paid. Hence, we answer Point No.5 in negative.
11. Point No.6 :- In view of answers of Point Nos.1to5, complaint deserves to be allowed partly. Hence, we pass the following order :-
-: ORDER :-
1. Consumer complaint is allowed partly with costs quantified at Rs.25,000/- (Rupees Twenty Five Thousand only) payable by opponent to the complainants.
2. Opponent is directed to hand over possession of flat bearing No.203 admeasuring 61.80 sq.mtrs. carpet area on 2nd floor, C wing, Sector-
6, Building No.1 situated in Paradise City at Chintupada Road, Extension of Kacheri Road, Village-Mahim, Palghar (West) to the complainants within two months from the date of payment of remaining consideration i.e. Rs.13,62,545/- (Rupees Thirteen Lakhs Sixty Two Thousand Five Hundred Forty Five only). If the opponent refused to accept the amount, then complainants should deposit the amount in this Commission under intimation to the opponent and from that date within two months possession should be handed over to the complainants.
3. Opponent is directed to pay Rs.2,00,000/- (Rupees Two Lakhs only) Page 6 of 7 CC/15/182 to the complainants towards compensation on account of mental agony and harassment suffered by the complainants within two months from the date of this order.
4. Opponent is directed to comply the order within time mentioned above, failing which the aforesaid amount shall carry interest @ 12% per annum from the date of this order till realisation.
5. Copies of the order be furnished to the parties.
Pronounced Dated 8th February 2018.
[ P. B. Joshi ] PRESIDING JUDICIAL MEMBER [ A. K. Zade ] MEMBER dd.
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