National Consumer Disputes Redressal
Surojit Sengupta vs Dr. P. Jayalaxmi Nambiar & 3 Ors. on 1 July, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 656-657 OF 2015 (Against the Order dated 01/07/2015 in Complaint No. 94/2008 & 95/2008 of the State Commission Maharashtra) 1. RADHA V. NAIR & ANR. R/O. 404, KALPANA APARTMENT, WING-A, GODAVARI MHATRE ROAD, DAHISAR (WEST) MUMBAI-400068 MAHARASHTRA 2. MRS. DR. P. JAYALAXMI NAMBIAR, R/O. CHITANYA APPARAMBATH, CHITTOR ROAD, COCHIN-II, KARITHALA DESOM, ERNAKULAM VILLAGE, KANYANNUR TALUKA, KERAL ...........Appellant(s) Versus 1. CHEMBUR ESTATE ENTERPRISES & 3 ORS. SUCCESSOR AND ASSIGNS OF CHEMBUR, ESTATE & INVESTMENT PVT. LTD., OFFICE AT 48 BHARAT TIRTH, OFF S.T. ROAD, CHEMBUR, MUMBAI-400071 MAHARASHTRA 2. VIKRANT CONSTRUCTION REP. THROUGH ITS PARTNER, HAVING OFFICE AT HOTEL PEARL, D.K. SANDHU MARG, CHEMBUR, MUMBAI-400071 MAHARASHTRA 3. MR. SUROJIT SENGUPTA, THE THEN DIRECTOR OF CHEMBUR, ESTATE & INVESTMENT PVT. LTD., THE PREDECESSOR IN TITLE OF THE OPPONENT NO. 1, PRESENTLY AT 48 BHARAT TIRTH, OFF S.T. ROAD, CHEMBUR, MUMBAI-400071 4. MRS. MEENA VIKAS RAIKAR PROPRIETORESS OF VIKRANT CONSTRUCTION, HAVING OFFICE AT HOTEL PEARL, D.K. SANDHU MARG, CHEMBUR, MUMBAI-400071 MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 702 OF 2015 (Against the Order dated 01/07/2015 in Complaint No. 94/2008 of the State Commission Maharashtra) 1. SUROJIT SENGUPTA THE THEN DIRECTOR OF THE CHEMBUR ESTATES AND INVESMENTS PVT. LTD., PRESENTLY HAVING ADDRESS AT 48, BHARAT TIRTH, OFF. S.T. ROAD, CHEMBUR, MUMBAI-400071 MAHARASHTRA ...........Appellant(s) Versus 1. RADHA V. NAIR & 3 ORS. THROUGH HER HUSBAND AND CONSTITUTED ATTORNEY, MR. S. VIJAYCHANDRAN NAIR, RESIDING AT 404, KALPANA APARTMENT, WING-A, GODAVARI MHATRE ROAD, DAHISAR, WEST, MUMBAI-400068 2. CHEMBUR ESTATE ENTERPRISES SUCCESSOR 7 ASSIGNS OF CHEMBUR,EATTE AND INVESTMENT PVT LTD., O/AT-48, BHARAT TIRTH, OFF.ST. ROAD, CHEMBUR MUMBAI-400071 MAHARASHTRA 3. VIKRANT CONSTRUCTION O/AT-HOTEL PERAL, D.K. SANDHU MARG, CHEMBUR, MUMBAI-400071 MAHARASHTRA 4. MRS. MEENA VIKAS RAIKAR, O/AT-HOTEL PEARL, D.K. SANDHU MARG, CHEMBUR, MUMBAI-400071 MAHARASHTRA ...........Respondent(s) FIRST APPEAL NO. 703 OF 2015 (Against the Order dated 01/07/2015 in Complaint No. 95/2008 of the State Commission Maharashtra) 1. SUROJIT SENGUPTA MR.MAHESH MENON/MR. SANTOSH PAUL,.209, SUPREME ENCLAVE, MAYUR VIHAR PHASE-I, DELHI-110091 2. Mrs. Meena Vikas Raikar O/at-Hotel Pearl, D.K.Sandu Marg, Chembur, Mumbai-400071 Maharashtra ...........Appellant(s) Versus 1. DR. P. JAYALAXMI NAMBIAR & 3 ORS. INDIAN INHABITANT, THROUGH CONSTITUTED ATTORNEY, MR. S. VIJAYCHANDRAN NAIR, RESIDING AT CHAITNAYA, APPARAMBATH, CHITTOR ROAD, COCHIN-II, KARITHALA DESOM, ERNAKULAM VILLAGE, , KANAYANNUR TALUKA 2. CHEMBUR ESTATE ENTERPRISES SUCCESSOR 7 ASSIGNS OF CHEMBUR ESTATE 7 INVESTMENT PVT. LTD., O/AT-48, BHARAT TIRTH, OFF. S.T. ROAD, CHEMBUR, MUMBAI-400071 MAHARASHTRA 3. VIKRANT CONSTRUCTION O/AT-HOTEL PEARL, D.K. SANDHU MARG, CHEMBUR, MUMBAI-400071 MAHARASHTRA 4. MRS. MEENA VIKAS RAIKAR O/AT-HOTEL PRARL, D.K. SANDU NARG, CHEMBUR, MUMBAI-400071 ...........Respondent(s)
BEFORE: HON'BLE MR. C. VISWANATH,PRESIDING MEMBER HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,MEMBER For the Appellant : For the Respondent :
Dated : 01 Jul 2022 ORDER FA No.656-657 of 2015 For the Appellants : Mr. Vijay K. Jain, Advocate For Respondent Nos.1,2 & 4 : NEMO For Respondent No.3 : Mr. Mahesh Menon, Advocate FA No.702 of 2015 For the Appellant : Mr. Mahesh Menon, Advocate For the Respondent No.1 : Mr. Vijay K. Jain, Advocate For Respondent Nos.2 to 4 : NEMO FA No.703 of 2015 For the Appellant : Mr. Mahesh Menon, Advocate For the Respondent No.1 : Mr. Vijay K. Jain, Advocate For Respondent Nos.2 to 4 : NEMO
1. Aforesaid First Appeals have been filed against the order dated 1st July, 2015 of State Consumer Disputes Redressal Commission, Maharashtra, Mumbai (in short "the State Commission) in in CC/08/94 & CC/08/95, whereby the State Commission disposed of the Consumer Complaints filed by the Complainants.
2. Alongwith First Appeals Nos.656/2015 & 657/2015, the Appellants/Complainants have filed IAs 2339/2015 & 2340/2015 for condonation of delay of 1 day and 30 days respectively. Similarly, alongwith First Appeals Nos.702/2015 & 703/2015 the Appellants/Opposite Party No.1 has filed IA/6156/2015 & 6158/2015 for condonation of delay of 20 days each. However, as per report of the Registry, there is a delay of 35 days in FA/703/2015. For the reasons stated in the applications and in the interest of justice applications for condonation of delay are allowed and delay condoned.
2. Mrs. Radha V. Nair and Mrs. P. Jayalaxmi Nambiar are the Complainants. Chembur Estate Enterprises/Opposite Party No.1 is the Developer. Mr. Surojit Sengupta/Opposite Party No.1 (a) is the then Director of Opposite Party No.1. Vikrant Construction/Opposite Party No.2 is a Construction Company and Mrs. Meena Vikas Raikar/Opposite Party No.1 (b) is the Proprietress of Opposite Party No.2.
3. Case of the Complainants is that they booked two separate flats of 800 sq. ft. for a consideration of Rs.3,20,000/- each, which was subsequently revised to Rs.5,38,750/-. The Complainants paid 30% amount 11.10.1985 to 23.03.1986. On 13.01.1986, the Complainants were issued provisional allotment letters. Opposite Party No.1, vide letter dated 15.11.1986, intimated the Complainants that the project would be delayed and as soon as the project is completed, the flat would be delivered. On 07.06.1993, Opposite Party No.1 informed the Complainants that the plots in question were in recreational garden zone and the same could not be allotted. Opposite Party No.1, vide letter dated 24.03.1998, informed the Complainants that they would be allotted flats in another building proposed to be constructed and possession would be handed over within 18 months from the said date of offer. Opposite Party No.1,vide letters dated 21.06.2007 and 27.06.2007, allotted duplex apartments on 5th and 6th floor and sought escalation cost for duplex apartments. The Complainants, vide letter dated 14.02.2008, asked Opposite Party No.1 to furnish a copy of the Development Agreement between Opposite Party No.1 and Opposite Party No.2. The Complainants sought copy of the Development Agreement dated 17th May, 2001 under Right to Information Act from the Office of the Sub-Registrar. From the Development Agreement the Complainant came to know that there was no provision for allotment of duplex flat. Alleging deficiency in service on the part of the Opposite Parties, the Complainants filed Consumer Complaints before the State Commission. Prayer made in the Complaint filed by the Complainant Mrs. Radha V. Nair reads as follows: -
"a) The Opposite Parties be directed to rectify the defects in their services as builders and developers and to get the plans sanctioned for construction of duplex flat admeasuring 1760 sq. ft. on the 5th and 6th floor of the said building along with terrace and stilt parking on the ground floor of the said building.
b) In the alternative to prayer clause (a) above and in the event of the Opposite Parties are unable to get the plans sanctioned in respect of the duplex flat, then in that event the Opposite Parties be directed to provide identical flats admeasuring 1760 sq. ft. in favour of the Complainants by accepting the balance consideration payable vide MOU dated 23rd Aug. 1991 namely Rs.5,28,750/-.
c) In the alternative to the above and by any reason if the Opposite Parties are unable to provide duplex flat on the 6th and 7th floor of the said building, then in that event the Opposite Parties be directed to provide flat of the same dimension on any floor of the said building or alternatively be directed to acquire another flat in the vicinity of the said development and allot the same to the Complainant by accepting the balance consideration of Rs.5,28,750/-.
d) In the alternative to prayer clause (a) to (c) above and in the event of this Hon'ble Commission come to the conclusion that the Opposite Parties are unable to construct additional floors or acquire any flat in the said building or flat in the vicinity of the said project, then in that event the Opposite Parties be directed to pay monetary consideration of Rs.96,80,000/- as the present market value of the flat of the same dimension is Rs.5,500/- per sq. ft. as per the ready reckoner of State of Maharashtra.
e) Pending the hearing and final disposal of the above complaint the Complaint in this Hon'ble Commission be pleased to pass interim and ad-interim reliefs by invoking the provisions of Section13 (3-B) of Consumer Protection Act, thereby directing the Opposite Parties to submit the revised plan in respect of the said building and to provide duplex flat admeasuring about 1760 sq. ft. on the 6th and 7th floor of the under construction building.
f) Pending the hearing and final disposal of the above complaint the Opposite Parties be restrained by order and injunction of this Hon'ble Court from allotting flats on 6th and 7th floor of the said building to any other outsider other than the Complainants.
g) That this Hon'ble Commission be pleased to direct the Opposite Parties to pay an amount of Rs.2,00,000/- towards damages on account of mental torture and mental agony;
h) For costs of Rs.25,000/- towards filing of this complaint; i) For such other and further reliefs as the nature and circumstances of the case may require."
4. The Complaint was contested by the Opposite Parties by filing separate replies. Opposite Party No.1/Builder stated that the provisional allotment letter dated 13.01.1986 was not issued by Opposite Party No.1. The Complainant had colluded with Mr. S.C. Dand, former Director of Opposite Party No.1 and no allotment letter was issued by Opposite Party No.1. It was also stated that in the alleged allotment letter there was no mention of the consideration amount of Rs.3,20,000/-. Even the payment receipts were forged and not issued by Opposite Party No.1.
5. Opposite Party No.2/Vikrant Construction filed its separate reply stating that there was no privity of contract between the Complainant and Opposite Party No.2 nor have they received any payment from the Complainants. It was stated on behalf of Opposite Party No.2 that Opposite Party No.1 delayed in obtaining necessary approvals from various authorities. The delay in development of the work was attributable to Opposite Party No.1.
6. After hearing the Learned Counsel for the Parties and perusing the record, the State Commission passed the following order: -
"The Complainants would be entitled to take the flats on paying to the opponents the balance of consideration to be worked out as under:-
The Complainants are shown to have paid a sum of Rs.1,20,000/- out of price of Rs.5,28,750/-. Thus, they have paid 22.69% of the price. It would be unrealistic to expect the opponent Nos.1 & 3 to provide the flats for Rs.5,28,750/- today after 13 years after they had agreed, in view of steep increased in price of real property. The complainants would therefore be deemed to have paid 22.69% of today's ready reckoner price and would have to pay the balance i.e. 77.31% to the opponent Nos.1 & 3. Upon their indicating, within 15 days of this order being uploaded on Confonet their willingness to pay this price and agreeing to pay the balance within a month of this order, the opponents shall receive the balance consideration and place the complainants in possession of the flats by executing necessary documents within a month thereafter. If the complainants decline to pay the balance as worked out, complainants would be entitled to 22.69% of today's ready reckoner price from opponent Nos. 1 & 3.
Opponents Nos. 1 & 3 shall also pay to the complainants costs quantified at Rs.25,000/- and all the opponents shall bear their own costs."
7. Not satisfied by the impugned order dated 01.07.2015, the Complainants have filed First Appeal Nos656/2015 and 657/2015 with the following prayer: -
"(a) Admit and allow the present Appeal while setting aside the relief part of common order dated 1st July, 2015 passed by the Hon'ble State Consumer Disputes Redressal Commission, Maharashtra, Mumbai in Consumer Complaint Nos.CC/08/94 and CC/08/95 and granting the relief as prayed by the Complainants/Appellants in the aforesaid two complaint cases;
(b) And pass such other or further order(s) as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the case and in the interest of jjstice.
8. Similarly, Mr. Surojit Sengupta, the then Director of Opposite Party No.1 has filed First Appeals Nos.702 of 2015 and FA/703/2015 with following prayer: -
"(a) pending the hearing and final disposal of this Appeal, this Hon'ble Commission may be pleased to stay the execution, implementation and/or effect of the impugned order and judgment dated 1st July, 2015, passed by the Hon'ble State Consumer Disputes Redresal Commissoin, Maharashtra, Mumbai passed in CC. No.94/2008;
(b) Pass such other and further order/s as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the case."
9. Heard the Learned Counsel for the Appellants/Complainants in FA/656 & 656/2015 and Learned Counsel for Respondent No.3/Director of Opposite Party No.1/Builder. None appeared on behalf of the other Respondents. Learned Counsel for the Appellants/Complainants submitted that the State Commission had directed the Complainants to deposit balance 77.31% which comes to Rs.1,70,15,918/- according to 2015 Ready Rocker, which is out of the pecuniary jurisdiction of the State Commission. He also submitted that the State Commission gravely erred in not directing Opposite Party No.1 to deliver the flats on payment of the balance consideration amount as per current ready reckoner price. The State Commission also ignored the fact that there was delay in delivery of flat due to default of Opposite Party No.1. The State Commission also failed to appreciate that the Complainants had been made to run from pillar to post for more than two and a half decades.
10. Learned Counsel appearing on behalf of Mr. Surojit Sengupta, the then Director of Opposite Party No.1 submitted that the State Commission failed to appreciate that he was only former Director of Chembur Estate and Investment Pvt. Ltd./Opposite Party No.1 and had no privity of contract with the Complainants. The Complaint was filed on the basis of the correspondence between the Complainants and Mr. S.C. Dand, who had no authority to issue such letters to the Complainants. It was further submitted that, vide Board Resolution dated 26.07.2005, an application was given to the Registrar of Companies for striking off the name of M/s Chembur Estates and Investments Pvt. Ltd. Therefore, on 26.07.2005, M/s Chembur Estates and Investments Pvt. Ltd. ceased to exist, which fact has not been considered by the State Commission. The State Commission also failed to appreciate that the dispute was triable by the Civil Court and could not be decided by the Consumer Forum in summary trial. The Appellant/Surojit Sengupta is not personally liable for refund of the amount deposited by the Complainants with M/s Chembur Estates and Investments Pvt. Ltd. Learned Counsel further submitted that the Complainants had not sought any relief against the Appellant/Surojit Sengupta.
11. Facts of the case are that the Complainants booked two separate flats of 800 sq. ft. each for a consideration of Rs.3,20,000/- each, which was subsequently revised to Rs.5,38,750/-. The Complainants paid 30% amount from 11.10.1985 to 23.03.1986. On 13.01.1986, the Complainants were issued provisional allotment letters. Opposite Party No.1, vide letter dated 15.11.1986 intimated the Complainants that the project would be delayed and as soon as the project is completed, the flat would be delivered. On 07.06.1993, Opposite Party No.1 informed the Complainants that the plots in question were in recreational garden zone and the same could not be allotted. Opposite Party No.1, vide letter dated 24.03.1998, informed the Complainants that they would be allotted flats in another building proposed to be constructed and possession would be handed over within 18 months from the said date of offer. Opposite Party No.1, vide letters dated 21.06.2007 and 27.06.2007, allotted duplex apartments on 5th and 6th floor and sought escalation cost of duplex apartments. The Complainants, vide letter dated 14.02.2008, asked Opposite Party No.1 to furnish a copy of the Development Agreement between Opposite Party No.1 and Opposite Party No.2. The Complainants sought copy of the Development Agreement dated 17th May, 2001 under Right to Information Act from the Office of the Sub-Registrar. From the Development Agreement the Complainant came to know that there was no provision for allotment of duplex flat. Alleging deficiency in service on the part of the Opposite Parties, the Complainants filed Consumer Complaints before the State Commission.
12. Firstly, we would like to deal the First Appeals filed by the Appellant/Opposite Party No.1 (a)/Mr. Surojit Sengupta. He took the ground that Opposite Party No.1/ M/s Chembur Estates and Investments Pvt. Ltd. ceased to exist on 26.07.2005, after giving an application for striking off to the Registrar of Companies and the Complaint against a non-existing Company and its Directors was not maintainable. M/s Chembur Estates and Investment Pvt. Ltd. had issued a letter dated 27.10.2009 to the Developer/Mr. Vikrant Construction Co. for allotment of car parking space. None of the Parties have filed this letter but there is a reference to this letter in the impugned order, which reads as follows: -
"There is a letter dated 27.10.2009 from M/s Chembur Estates and Investments Pvt. Ltd. to M/s Vikrant construction Co. i.e. Opponent No.2 about allotment of car parking space in Nandanvan apartments. This letter informs opponent No.2 about decision to distribute the car parking space. It states the letter/understanding was signed by all the shareholders and Directors of the Company. Thus, after having held out that they were still Directors of the Company, it would be difficult for the Opponent No.3- Mr. Surojit Sengupta to contend that M/s Chembur Estates and Investments Pvt. Ltd. ceased to exist from the date of resolution or communication to the Registrar of Companies."
13. Reading of the above letter shows that the contention of Appellant/Opposite Party that M/s Chembur Estates and Investments Pvt. Ltd. ceased to exist on 26.07.2005 is false and belied. Further, there is a supplementary agreement dated 28.08.2008 between M/s Chembur Estates and Investments Pvt. Ltd. and Opposite Parties Nos. 2 & 4, which is signed by Mr. S.C. Dand and Mr. Surojit Sengupta as Directors of the Company. This fact also belies the contention of the Appellant/Opposite Party that M/s Chembur Estates and Investments Pvt. Ltd. ceased to exist. It is also relevant to mention that the aforesaid facts referred by the State Commission have not been denied by the Opposite Party.
14. Another contention of the Appellant/Opposite Party is that the provisional allotment letter was got by the Complainants in collusion with Mr. S.C. Dand, the then Director of M/s Chembur Estates and Investments Pvt. Ltd. No doubt provisional letter dated 13.01.1986 was issued by the then Director Mr. S.C. Dand but there are other letters issued by other Directors of the Company. There is letter dated 01.06.2002 signed by Mr. Surojit Sengupta himself alongwith Mr. S.C. Dand, which mentions that an amount of Rs.1,20,000/- was paid by the Complainant Mrs. P. Jayalaxmi Nambiar. There is another letter dated 07.06.1999 signed Mr. A.K. Sengupta, Mr. G.K. Kotwani and Mr. S.C. Dand as Directors. It is clear that the correspondence/letters were signed by different Directors and not only by Mr. S.C. Dand. Appellant/Opposite Party Mr. Surojit Sengupta himself has also signed letter dated 01.06.2002 confirming payment of Rs.1,20,000/- by the Complainant Mrs. P. Vijayalaxmi Nambiar. Moreover, there is only bald allegation that the provisional allotment letter was got by the Complainant in collusion with one Director Mr. S.C. Dand. Appellant/Opposite Party has not filed any evidence to that effect. The allegation is, rejected.
15. Lastly the Appellant/Opposite Party submitted that the Appellant as a Director would not be personally liable for the acts/omission of the Company. From the impugned order, it is clear that the State Commission has nowhere mentioned that the Director of the Company would be personally liable.
16. We come to the First Appeals of the Complainants. As far as the issue of pecuniary jurisdiction is concerned, the Complaint was filed in the year 2015 and the cost of the flat was Rs.5,38,750/-, which was well within the pecuniary jurisdiction of the State Commission. The State Commission was, therefore, was well within its rights to entertain the Consumer Complaint. The submission of the Appellants/Complainants regarding pecuniary jurisdiction is rejected. Further the Complainants/Appellants alleged that the State Commission erred in directing the Complainants to make balance payment as per current ready reckoner price. It is important to mention that the Complainants deposited 22.69% of the total cost of the flat in the year 1995-96. The State Commission equated the balance and held that the Complainants would be deemed to have paid 22.69% of today's ready reckoner price. The State Commission also held that if the Complainants decline to pay the balance as worked out, they would be entitled to 22.69% of today's ready reckoner price. The Complainants further alleged that they had been made to run from pillar to post for more than two and a half decades. We find that the relief granted to the Complainant will compensate the delay. Moreover, the State Commission has also awarded cost of Rs.25,000/- each to the Complainants.
17. In view of the above, we find that the State Commission has passed a well-reasoned order. The Complainants as well as the Opposite Party failed to point out any illegality or irregularity in the impugned order, which warrants interference in the Appellate jurisdiction. The First Appeals filed by the Complainants as well as the Opposite Party are hereby dismissed. There will be no order as to costs.
...................... C. VISWANATH PRESIDING MEMBER ......................J RAM SURAT RAM MAURYA MEMBER