State Consumer Disputes Redressal Commission
Manish Vinod Gosalia & Others vs M/S Umiya Holding Pvt. Ltd. & Others on 28 June, 2023
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI-GOA
In the matter in Consumer Complaint 01 of 2023.
Before: Adv. Mrs. Varsha R. Bale, Officiating President
Dr. Nagesh S. Colvalkar, Member
Adv. Ms. Rachna Anna Maria Gonsalves, Member
Mr. Manish Vinod Gosalia,
s/o Mr. Vinod Gosalia. ......Complainant-1
Mrs. Toral Manish Gosalia,
w/o Mr. Manish Gosalia. ......Complainant-2
both above resident of,
Flat No. 501, 5th Floor,
B-Block, 'Status Residency',
Padre Pedro Ferrao Road,
Behind New South District Collectorate HQ,
Bolepand, Fatorda, Salcete, Goa, 403601.
Mr. Jitendra Kumar Agarwal,
s/o Mr. Kanhiylal Agarwal,
235/P, Karleriver Ville Ward II,
Pulwaddo, Benaulim,
Salcete, Goa. 403716. ......Complainant-3
Mr. Arman Jitendra Bankely,
s/o Mr. Jitendra Bankely. ......Complainant-4
and his wife
Mrs. Avani Arman Bankely,
w/o Mr. Arman Bankely. ......Complainant-5
1
both above residents of
BH 9, Balama Heritage,
Opp. Chinmay Ashram,
Gogol, Margao, Goa. 403601.
Mr. Timotio Texeira,
S/o Mr. Eustaquio Texeira,
H. No. 201/T, Karle River Villa,
Pulvaddo Benaulim. 403716. ......Complainant-6
V.
M/s Umiya Holding Pvt. Ltd.,
through its Managing Director,
Mr. Aniruddha Mehta,
s/o Mr. Bhanuprasad Metha,
G-01, Ground Floor, Quatro 'D' Commercial,
Nr. Keshav Smruti School,
International Airport Road,
Dabolim, Mormugao, Goa. 403801. ......Opposite Party-1
M/s Umiya Holding Pvt. Ltd.,
through its Proprietor,
Mr. Aniruddha Mehta,
s/o Mr. Bhanuprasad Metha,
29/3, HM Stafford, 2nd Floor,
7th Cross Road, Vasant Nagar,
Bangalore. ......Opposite Party-2
Advocate Ms. S. Mordekar present for Complainants.
DATE: 28/06/2023
2
JUDGMENT
[per Adv. Ms. Rachna Anna Maria Gonsalves, Member]
1. This Judgment and Order shall dispose off the Complaint CC/01/2023 filed by Complainant against M/s Umiya Holding Pvt. Ltd.
2. The Complainant has filed the Complaint under Section 17 of the Consumer Protection Act of 2019.
3. The brief facts of the matter are herein as under:
The Complainant stated that the present Complaint has been filed in view of them being aggrieved by the unilateral violations of the rights of the Complainants, the terms and conditions of the agreement of sale of the respective shops and the arrogance and careless attitude of the Opposite Parties in resolving the grievances of the Complainant.
The Complainants stated that property known as Pandi Xeti, the said property herein for the sake of brevity be referred to as the suit property has been developed into plots and an independent part and parcel of land admeasuring 5074.5m is identified as plot No. 92, the same being a part of the large property admeasuring 61.175 sq. mtrs. bearing survey No. 139/1 of the village of Benaulim, had been developed by M/s KARLE Properties, a partnership firm registered under the Indian Partnership Act 1932.
Further to the aforesaid the said property bearing No. 1719 stood recorded in the name of Dr. Franscisco Xavier de Patricinio Furtado in the Taluka Revenue Office and as stated by Complainants. On 13/10/1972, Dr. Franscisco Xavier and his wife Alzira entered into an agreement with
(a) Pallikara Huiappa George and (b) Augustine S. 3 Vadassery functioning under the name of M/s Fericon for development and sale of the said property, but the said partnership firm M/s Fericon was dissolved by a deed dated 10/07/1980.
The Complainants stated that KARLE PROPERTIES thereafter entered into agreements with the various co- owners of the said property to purchase their respective shares and have developed the said properties into several plots after obtaining all the requisite permission under the law.
The Complainants stated that the Opposite Party No.1 is the purchaser of the suit plot and that the Opposite Party No. 2 is the builder who upon the request of the Opposite Party no. 1, constructed a building consisting of various shops and offices in the suit plot, as approved in the construction license dated 13/02/2014. The Opposite Party Nos. 1 and 2 have mutually agreed to sell the shops/offices to the prospective purchasers, and it was agreed between the aforesaid that the Opposite Parties no.2 would charge the prospective purchasers towards the construction cost and the Opposite Party no. 1 would charge the purchasers towards the undivided shares in the said plot. The said building comprising all the shops and offices shall for the sake of brevity be referred to as the SUIT COMPLEX. The Complainants state that the suit complex is being named by the Opposite Parties as Umiya Mercado.
The Complainants stated that they are the owners of individual shops purchased by them in the Suit complex with the Opposite Party Nos. 1 and 2, who are therefore the vendors and have sold the shops to the complainants vide their respective agreements to sale.
4 The Complainants stated that the Complainant No.2 was self employed and running an Organic store as a retailer of organic/natural food, bath and body products, cooking ware, décor, apparel and more, and that Complainant Nos. 1 and 2 decided to purchase a shop in the suit complex from which the Complainant Nos. 2 could operate in order to sustain the business and earn her livelihood and in view of the aforesaid booked a commercial shop bearing no 105 admeasuring 103.4 sq. mts of super built area, along with outside seating area of 20.4. sq. mts situated on the first floor in Building Block no II of Umiya Mercado for a total consideration of Rs.74,18,000/- (Rupees Seventy-Four Lakhs Eighteen Thousand Only) and on the terms and conditions as mentioned in the said agreement.
The Complainants stated that pursuant to the execution of the said Agreement for Construction and Sale, the Opposite parties decided to re-number the shops and vide Registered A/D dated 28/07/2020, received by the Complainant No-2 and were informed that the shop purchased by them as shop No. 105(A), it would now be called and referred to as shop No.105.
The Complainants stated that Complainant No-3 decided to assist his wife in purchasing the premises for and jointly starting a business with her. The Complainant No. 3 by virtue of a Tripartite Agreement for Assignment and Sale dated 30th March 2017, purchased the commercial shop bearing shop no 104 admeasuring 133.80 sq. mts of super built area, along with outside seating area of 26.2 sq. mts situated on the first floor n Building Block no II of the suit Complex for a total consideration of Rs.85,51,800/- (Rupees Eighty Five Lakhs Fifty One 5 Thousand Eight Hundred Only) and on the terms and condition as mentioned in the said agreement.
The Complainants stated that the Complainant Nos- 4 and 5 jointly purchased the commercial shop bearing no 105 (B) admeasuring 31.3 sq. mts of super built area, along with outside seating area of 15.7 sq. mts situated on the first floor in Building Block no II of the suit complex for a total consideration of Rs.23,72,500/- (Rupees Twenty Three Lakhs Seventy Two Thousand Five Hundred only) and on the terms and condition as mentioned in the said agreement.
The Complainants stated that in pursuance of the various Agreements for sale executed by the various Complainants with the Opposite Party Nos-1 and 2 who constructed suit complex, the Complainants came to be owners of the respective shops along with having undivided right in the land.
The Complainants further stated that the construction of the suit complex was completed somewhere around 27/03/2019 and vide certificate dated 15/04/2019, the Village Panchayat of Benaulim granted occupancy to the suit complex.
Furthermore the Complainants stated that as the Opposite Party nos.-1 and 2 were not willing to abide by their responsibilities and liabilities under the respective Agreements for Construction and Sale, the Complainant Nos. -1 to 5 initiated proceedings before the Hon'ble Real Estate Regulatory Authority (hereinafter for the sake of brevity being referred to as the RERA), claiming various reliefs as sought in the said proceedings.
6 The Complainants stated that the proceedings filed by the Complainant Nos.- 1 and 2, came to be registered as case no. 3/RERA/Complaint(133)/2020, the proceedings filed by the Complainant Nos. - 4 and 5, came to be registered as case no.3/RERA/Complaint (134)/2020.
The Complainants stated that the Opposite Party No. 1 and 2 contested the proceedings before the RERA Authority. The Complainant further states that vide order dated 06/05/22 the Hon'ble RERA was pleased to hold that the Opposite Parties are in violation of the agreement and consequently the Real Estate Regulations and was therefore pleased to direct the Opposite Parties to form a society, without additional charge from the Complainant within 2 months from the date of the order and hand over the necessary plans and documents to the Complainants. The Complainants state that the Opposite Parties were further directed to execute a sale deed of the said commercial shop in favor of the Complainants along with the undivided proportionate title in the common areas within 2 months and to pay a penalty of Rs.2,00,000/-, which penalty amount has to be paid to the Government.
The Complainants stated that the said period of two months during which the Opposite Parties were required to comply with the directions issued in the said order expired on 6th July 2022, but as the Opposite Party Nos. 1 and 2 had neither challenged the order dated 06/05/22 then nor complied with the directions issued therein, the Complainant Nos. 1 to 5 filed applications before the Hon'ble RERA, for executing the order dated 06/05/2022 and for ensuring compliance of the same. The Complainants state that at this juncture it is pertinent to note that though the Opposite Parties had refused to comply with order dated 06/05/2022, they had till they 7 not challenged the said order in appeal before the appellate forum and as such the said order had attained finality.
The Complainants stated that pursuant to the passing of the order dated 06/05/2022, the designated Ld. Judge of the RERA, who heard and decided the complainants, thereafter referred the matter to the designated Adjudicating Officer of the RERA to hear and decide the application of the Complainants on the aspect of compensation.
The Complainants stated that the Opposite Party has refused and failed to comply with the Order dated 06/05/2022 passed by the Ld. RERA, the Complainants nos.1 to 5 filed execution applications before the Ld. RERA Court. The Complainants state that as the OPs could not satisfactorily explain the non compliance to the Ld. RERA, the Ld. RERA Court vide its order dated 03/10/22 allowed all the three execution applications and his forwarded/referred the matter to the Learned Principal District Judge for further action on enforcement of the directions contained in order dated 06/05/2022. The Complainants state that the said reference by the Ld. RERA to the Principal District Judge has been registered as cases bearing Nos.CMA/131/2022, CMA/129/2022 and CMA/130/2022 and are currently pending before the LD. Principal District Judge.
The Complainants stated that as such there are as on date two orders passed by a statutory Authority holding that the Opposite Parties are in violation of the terms of the Agreement, which order as on date have as already stated hereinabove has attained finality.
8 The Complainants stated that they are also now required to further litigate/initiate proceedings to recover the amount of compensation awarded by the Ld. Adjudicating Officer and that this act of harassment by the Opposite Parties to make the Complainants litigate even to receive the amount awarded by the Authorities after years of litigation is nothing but making a mockery of the plight of the Complainants and further aggravating the pain and suffering of the Complainants who further stated that, What is even more unfortunate is the fact that the Opposite Parties were not even diligent in pursuing their legal remedies and it is only after the execution applications filed by the Complainants have been concluded, that the Opposite parties have filed an appeal after a delay of 130 days.
4. The Complainant before us prayed for the following:
a. For an Order directing the Opposite Parties to execute a Deed of Sale in favour of the Complainants, in the event the same is not executed pursuant to the proceedings before the Hon'ble District Court bearing Nos. CMA/131/2022, CMA/129/2022 and CMA/130/2022.
b. For an Order directing the Opposite Parties to form a maintenance society in the event the same is not executed pursuant to the proceedings before the Hon'ble District Court bearing Nos. CMA/131/2022, CMA/129/2022 and CMA/130/2022.
c. For an order directing the Opposite Parties Nos. 1 & 2, to jointly and severally, refund to the Complainants the amount of Rs.3,06,680/- received by the Opposite Parties Nos. 1 & 2 towards the 9 formation and all other incidental expenses towards the formation of society/entity along with interest at the rate of 12 percent from the expiry of one year of obtaining the Occupancy Certificate, that is from 15/04/2020 till the date of its refund/payment.
d. For an Order directing the Opposite Parties to place on record all the leave and license, lease or any other agreements by whatever name called, by virtue of which the Opposite Parties have permitted third parties to use and occupy and portion of the premises in Umiya Mercado.
e. For an Order directing the Opposite Parties to hand over possession of shop no. 5 to Complainant No.-6.
f. For an Order directing the Opposite Parties Nos. 1 & 2, to jointly and severally, deposit before this Hon'ble Court/proportionately pay to the Complainants the amounts received by the Opposite Party Nos.1 and 2 from the Opposite Party No.- 3 towards rent for occupying the area below the staircase along with interest of 10% from the date of them receiving the amount till the date of its actual payment/deposit before the Hon'ble court;
g. For an order directing the Opposite Party no. 1 and 2, to jointly and severally, deposit before this Hon'ble Court/proportionately pay to the Complainants the amounts received by the Opposite Party Nos. 1 and 2 from the occupants of the open spaces in the quadrangle, passages and terrace towards rent for occupying said areas for the last period of approximately 3 years as mentioned in paragraph 26 10 along with interest of 10% from the date of them receiving the amount till the date of its actual payment/deposit before the Hon'ble court;
h. For an order directing the Opposite Party no. 1 and 2, to jointly and severally, pay to the Complainants compensation towards mental harassment, torture and agony, at the rate of Rs.10,000/- (Rupees Ten Thousand Only) per month from Jun, 2020 till the date of the formation of the society and the execution of the Sale Deed, whichever is later;
i. For an order directing the Opposite Party Nos. 1 and 2 to jointly and severally pay damages of an amount of Rs.1,00,00,000/- (Rupees One Crore only) to the Complainants for the loss of earnings;
j. For an order directing the Opposite Parties to compensate for litigation charges amounting to Rs.2,00,000/- (Rupees Two Lakhs Only).
k. For an order directing the Opposite Parties to pay the entire differential amount of GST of approximately Rs.60,000/- (Rupees sixty thousand only) wrongly and illegally invoiced to the complainants and received by the Opposite Party along with the interest at the rate of 18% from the date on which the said GST was received by the Opposite Party till the date it is refunded to the Complainants.
l. For an order directing the Opposite Parties to pay the entire differential amount charged for the consumption on water @ Rs.9.50(Rs.16 - Rs.6.5) per unit and for the DG set at the rate of Rupees 23 per 11 unit (Rs.29 - Rs.6) with an interest of 18% from the date of levying the charges till the date of the Opposite Parties paying the Complainants.
m. For such further and other reliefs as the nature and circumstances of the case may require be granted.
5. On hearing the arguments advanced by the Ld. Counsel and on perusing the documents and evidence placed on record, we observe that:
the Order passed by the RERA Court dated 06/05/2022; was in the favour of the Complainants herein before us, and that the Hon'ble RERA was pleased to hold that the Opposite Parties are in violation of the agreement and consequently the Real Estate Regulations and was therefore pleased to direct the Opposite Parties to form a society, without additional charge within 2 months from the date of the order and hand over the necessary plans and documents to the Complainants and that the Opposite Parties were further directed to execute a sale deed of the said commercial shop in favor of the Complainants along with the undivided proportionate title in the common areas within 2 months and to pay a penalty of Rs.2,00,000/-, which penalty amount has to be paid to the Government.
Also on going through the order the matter was thereafter referred to the designated Adjudicating Officer of the RERA to hear and decide the application of the Complainants on the aspect of compensation.12
Additionally, the Ld. RERA Court vide its order dated 03/10/22 allowed all the three execution applications and his forwarded/referred the matter to the Learned Principal District Judge for further action on enforcement of the directions contained in order dated 06/05/2022. The Complainants state that the said reference by the Ld. RERA to the Principal District Judge has been registered as cases bearing Nos.CMA/131/2022, CMA/129/2022 and CMA/130/2022 and are currently pending before the LD. Principal District Judge.
The order passed by the RERA Adjudicating Officer dated 27/10/2022 disposed of the matter and directed the Respondents to pay the Applicants/ Complainants compensation of Rs.2,50,000/- (Rupees Two lakhs fifty thousand only) for violations under Section 18(3) read with section 71 of The Real Estate (regulation and Development) Act, 2016 within 30 days of this Order. In default, the Respondents shall be further liable to pay the Applicants/Complainants interest on the said amount at the rate of 10.25% p.a. till the date of realization.
Furthermore the Complainant has relied on M/s Imperia Structures Ltd. vs. Anil Patni in Civil appeal no. 3581- 3590 of 2020 at Civil Appeal diary no. 9796/2019, where it was held that "it has consistently been held by this Court that the remedies available under the provision of the CP Act are additional remedies over and above the other remedies including those made available under any special statutes; and that the availability of an alternate remedy is no bar in entertaining a Complaint under the CP Act".13
After giving thoughtful consideration, we opine that the doctrine of Res- Judicata is applicable in the said matter which is currently pending before the LD. Principal District Judge and therefore we concur that the doctrine of Res- Judicata is applicable in this case which clearly is designed to prohibit parties relitigating a clause/a defense of something that has already been decided and therefore in view of the said doctrine , we place reliance in the case of "Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna" 2021 ALLSCR,506, the Hon'ble Supreme Court held as follows:-
"An allottee may elect or opt for one out of the remedies provided by law for redressal of its injury or grievance. An election of remedies arises when two or more remedies are available, and the aggrieved party chooses to exercise one, in which event he loses the right to simultaneously exercise the other for the same cause of action."
6. Therefore since the Order of Ld. RERA Court dated 03/10/22 allowed all the three execution applications and his forwarded/referred the matter to the Learned Principal District Judge has been registered as cases bearing Nos.CMA/131/2022,CMA/129/2022 and CMA/130/2022 and are currently pending and the said Order is in favour of the Complainant, it is settled law that the Complainant loses the right to simultaneously exercise the other for the same cause of action.
7. Therefore we are inclined to pass the following Order:
ORDER
1. The Complaint is dismissed at the Admission stage with no Order as to Costs.14
Pronounced in open court.
Proceedings in the matter stand closed.
Ready on 14/07/2023.
[Adv. Smt. Varsha R. Bale] Officiating President [Dr. Nagesh S. Colvalkar] Member [Adv. Ms. Rachna Anna Maria Gonsalves] Member SN 15