State Consumer Disputes Redressal Commission
Ganesh M. Patel & Ors vs M/S Vora Associates & Ors on 10 May, 2013
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/12/116
1.GANESH M. PATEL, 2/PRATIK ARCADE, SOPARIWALA ESTATE, NR. PRASAD CHAMBER, OPERA HOUSE, MUMBAI-400 004.
...........Complainant(s) Versus
1. M/S VORA ASSOCIATES, A-WING, 1ST.FLOOR, DATTANI TOWER, KORA KENDRA, S.V.ROAD, BORIVALI(W), MUMBAI-400092
2. SHAILESH PRANLAL VORA, PARTNER O.P.NO.1, A-WING, 1ST.FLOOR, DATTANI TOWER, KORA KENDRA, S.V.ROAD, BORIVALI(W), MUMBAI-400092. AND R/AT NANDHAM SOCIETY, BUNGLOW NO.1, KANDER PADA, NR. DAHISAR BRIDGE, DAHISAR(W), MUMBAI.
3. ARUN SAHDEO MORE, PARTNER OF OPPOSITE PARTY NO.1, A-WING, 1ST.FLOOR, DATTANI TOWER, KORA KENDRA, S.V.ROAD, BORIVALI(W), MUMBAI-400092. AND R/AT NIKAM CHAWL, ROOM NO.8, AMOJI WADI, S.V.ROAD, KANDIVALI(W), MUMBAI-400 067 ............Opp.Party(s) Complaint Case No. CC/12/117
1. GANESH M. PATEL, PRATIK ARCADE, SOPARIWALA ESTATE, NR. PRASAD CHAMBER, OPERA HOUSE, MUMBAI-400 004.
...........Complainant(s) Versus
1. M/S VORA ASSOCIATES, A-WING, 1ST.FLOOR, DATTANI TOWER, KORA KENDRA, S.V.ROAD, BORIVALI(W), MUMBAI-400 092
2. SHAILESH PRANLAL VORA, PARTNER OF O.P.NO.1, A-WING, 1ST.FLOOR, DATTANI TOWER, KORA KENDRA, S.V.RD., BORIVALI(W), MUMBAI-400 092 And Residing at Nandham Society, Bunglow No. 1, Kander Pada, Near Dahisar Bridge, Dahisar (W),
3. ARUN SAHDEO MORE, PARTNER OF O.P.NO.1, A-WING, 1ST.FLOOR, DATTANI TOWER, KORA KENDRA, S.V.ROAD, BORIVALI(W), MUMBAI-400 092. R/AT NIKAM CHAWL, ROOM NO.8, AMOJI WADI, S.V.ROAD, KANDIVALI(W), MUMBAI-400 067 ............Opp.Party(s) Complaint Case No. CC/12/118
1. SMT.LABHUBEN M. PATEL, 2/PRATIK ARCADE, SOPARIWALA ESTATE, NR. PRASAD CHAMBER, OPERA HOUSE, MUMBAI-400 004. THROUGH HER CONSTITUTED ATTORNEY MR. GANESH M. PATEL.
...........Complainant(s) Versus
1. M/S VORA ASSOCIATES, A-WING, 1ST.FLOOR, DATTANI TOWER, KORA KENDRA, S.V.ROAD, BORIVALI(W), MUMBAI-400 092.
2. SHAILESH PRANLAL VORA, PARTNER O.P.NO.1, A-WING, 1ST.FLOOR, DATTANI TOWER, KORA KENDRA, S.V.ROAD, BORIVALI(W), MUMBAI-400092. AND R/AT NANDHAM SOCIETY, BUNGLOW NO.1, KANDER PADA, NR. DAHISAR BRIDGE, DAHISAR(W), MUMBAI.
3. ARUN SAHDEO MORE, PARTNER OF OPPOSITE PARTY NO.1, A-WING, 1ST.FLOOR, DATTANI TOWER, KORA KENDRA, S.V.ROAD, BORIVALI(W), MUMBAI-400092. AND R/AT NIKAM CHAWL, ROOM NO.8, AMOJI WADI, S.V.ROAD, KANDIVALI(W), MUMBAI-400 067 ............Opp.Party(s) Complaint Case No. CC/12/121
1. NAINABEN PRAFULBHAI BHARVALIA, ONE OF THE DAUGHTER OF THE DECEASED ALLOTEE OF THE FLAT, MANUBHAI D. PATEL, R/AT BALMUKUND SOCIETY, BLOCK NO.39/2, PUNNAGHAM CHAURAYASI, SAGARKUNA-394 211.
2. BHARTIBEN MANSUKHLAL NASIT, ONE OF THE DAUGHTER OF THE DECEASED ALLOTEE OF THE FLAT, MANUBHAI D. PATEL, R/AT 102, MUKUND APARTMENT, HIMMATLAL PARK, AHMEDABAD-380 015.
3. HEMABEN HITESH PATEL, ONE OF THE DAUGHTER OF THE DECEASED ALLOTEE OF THE FLAT, MANUBHAI D. PATEL, A/202, SATKAR APARTMENTS, BEHIND UDGURU SCHOOL, THALTEJ, AHMEDABAD-380 053.
4. BHAVNABEN MATHURLAL RUDANI, ONE OF THE DAUGHTER OF THE DECEASED ALLOTEE OF THE FLAT, MANUBHAI D. PATEL, R/AT 201, SANTOSH APARTMENT, PARVATH PATIYA, DHUMBHAL SURAT, GUJARAT-395 010
5. GANESH M. PATEL, SON OF THE DECEASED ALLOTEE OF THE FLAT, MANUBHAI D. PATEL, R/AT 2/PRATIK ARCADE, SOPARIWALA ESTATE, NR. PRASAD CHAMBER, OPERA HOUSE, MUMBAI-400 004.
...........Complainant(s) Versus
1. M/S VORA ASSOCIATES, A-WING, 1ST FLOOR, DATTANI TOWER, KORA KENDRA, S.V.ROAD, BORIVALI(W), MUMBAI-400 092.
2. SHAILESH PRANLAL VORA, PARTNER OF THE OPPOSITE PARTY NO.1, A-WING, 1ST.FLOOR, DATTANI TOWER, KORA KENDRA, S.V.ROAD, BORIVALI (W), MUMBAI-400 092. R/AT NANDHAM SOCIETY, BUNGLOW NO.1, KANDER PADA, NR.DAHISAR BRIDGE,DAHISAR(W) MUMBAI
3. ARUN SAHDEO MORE, PARTNER OF THE OPPOSITE PARTY NO.1, A-WING, 1ST.FLOOR, DATTANI TOWER, KORA KENDRA, S.V.ROAD, BORIVALI (W), MUMBAI-400 092. R/AT NIKAM CHAWL, ROOM NO.8, AMOJI WADI, S.V.RD., KANDIVALI(W), MUMBAI 67.
MUMBAI.
............Opp.Party(s) Complaint Case No. CC/12/122
1. NAINABEN PRAFULBHAI BHARVALIA, ONE OF THE DAUGHTER OF THE DECEASED ALLOTEE OF THE FLAT, MANUBHAI D. PATEL, R/AT BALMUKUND SOCIETY, BLOCK NO.39/2, PUNNAGHAM CHAURAYASI, SAGARKUNA-394 211.
2. BHARTIBEN MANSUKHLAL NASIT, ONE OF THE DAUGHTER OF THE DECEASED ALLOTEE OF THE FLAT, MANUBHAI D. PATEL, R/AT 102, MUKUND APARTMENT, HIMMATLAL PARK, AHMEDABAD-380 015.
3. HEMABEN HITESH PATEL, ONE OF THE DAUGHTER OF THE DECEASED ALLOTEE OF THE FLAT, MANUBHAI D. PATEL, A/202, SATKAR APARTMENTS, BEHIND UDGURU SCHOOL, THALTEJ, AHMEDABAD-380 053.
4. BHAVNABEN MATHURLAL RUDANI, ONE OF THE DAUGHTER OF THE DECEASED ALLOTEE OF THE FLAT, MANUBHAI D. PATEL, R/AT 201, SANTOSH APARTMENT, PARVATH PATIYA, DHUMBHAL SURAT, GUJARAT-395 010
5. GANESH M. PATEL, SON OF THE DECEASED ALLOTEE OF THE FLAT, MANUBHAI D. PATEL, R/AT 2/PRATIK ARCADE, SOPARIWALA ESTATE, NR. PRASAD CHAMBER, OPERA HOUSE, MUMBAI-400 004.
...........Complainant(s) Versus
1. M/S VORA ASSOCIATES, A-WING, 1ST FLOOR, DATTANI TOWER, KORA KENDRA, S.V.ROAD, BORIVALI(W), MUMBAI-400 092.
2. SHAILESH PRANLAL VORA, PARTNER OF THE OPPOSITE PARTY NO.1, A-WING, 1ST.FLOOR, DATTANI TOWER, KORA KENDRA, S.V.ROAD, BORIVALI (W), MUMBAI-400 092. R/AT NANDHAM SOCIETY, BUNGLOW NO.1, KANDER PADA, NR.DAHISAR BRIDGE,DAHISAR(W) MUMBAI
3. ARUN SAHDEO MORE, PARTNER OF THE OPPOSITE PARTY NO.1, A-WING, 1ST.FLOOR, DATTANI TOWER, KORA KENDRA, S.V.ROAD, BORIVALI (W), MUMBAI-400 092 and R/AT NIKAM CHAWL, ROOM NO.8, AMOJI WADI, S.V.RD., KANDIVALI(W), MUMBAI ............Opp.Party(s) BEFORE:
HON'BLE MR. Dhanraj Khamatkar PRESIDING MEMBER HON'BLE MR. Narendra Kawde MEMBER PRESENT: Mr.P.K.Mishra-Advocate a/w. Mr.S.G.Bhandari-Advocate for the complainants Mr.Y.C.Naidu-Advocate for the opponents.
ORDER Per Honble Mr.Narendra Kawde, Member Heard Mr.P.K.Mishra-Advocate a/w. Mr.S.G.Bhandari-Advocate for the complainants and Mr.Y.C.Naidu-Advocate for the opponents.
2. All these complaints are heard together on the point of admission as the complainants are the family members and, opponent, namely, M/s.Vora Associates and its partners are one and the same in all the complaints. Therefore, all these complaints are heard and disposed off at the admission stage by this common order. It is the case of complainants that flat no.804 in consumer complaint no.CC/12/116, flat no.803 in consumer complaint no.CC/12/117, flat no.903 in consumer complaint no.CC/12/118, flat no.1004 in consumer complaint no.CC/12/121 and flat no.1003 in consumer complaint no.CC/12/122 were allotted by the opponent/builder/ developer for the consideration of `12,44,375/- each by letter dated 17/05/1996. However, in spite of making a down payment of `1,50,000/- towards flat nos.804, 803 & 1003 and `1,75,000/- towards flat no.1004 & 903 by way of cheques, till today the flats agreed to be sold by allotment letters have not been handed over. Complainants and the opponents rely on letter dated 17/05/1996 (allotment letter) and another letter of the even date 17/05/1996 on stamp paper of `20/- addressed to complainants (Mr.Ganesh M.Patel, Mr.Labhuben M.Patel and Mrs.Nainaben P. Bharvalia) by the opponent/ builder/ developer. It is the contention of the complainants that by availing TDR the opponent/builder/developer was to construct and complete the project and hand over possession as per the allotment letters in respect of each of the flats. Till 18/03/2011 though constant persuasion was made with the opponent/builder/developer, the opponent/builder/developer did not complete the project and handed over the flats. According to complainants it was astonishing to note that down payment made towards allotment of flats was allegedly treated as loan by the opponents.
3. Ld.counsel for the opponent/builder/developer argued at length and vehemently opposed admission of these consumer complaints filed separately by each complainant stating that the transaction relied upon by the parties relates to money lending by the complainants as they are carrying such business as family profession. Moreover, the Ld.Advocate also raised point of limitation under section 24-A of the Consumer Protection Act, 1986. An amount of `1,50,000/- was reportedly paid by the complainants in consumer complaint nos.116, 117 & 122 of 2012 respectively in respect of flat nos.804, 803 & 1003 by single cheque bearing no.817479 dated 27/12/1995 which cannot be a case of separate payment in respect of each flat by same cheque. Similarly, in respect of flat nos.903 & 1004 in consumer complaint nos.118 and 121 of 2012, an amount of `1,75,000/- allegedly paid is again by the single cheque bearing no.817492 dated 29/03/1996 which again cannot be a case of separate payment by the said single cheque for booking two different flats. Since there was no further payment made by the complainants on account of purchase of flats and amount whatsoever paid by the cheque was refunded with interest thereon @ 18% p.a. by deducting TDS which is within the knowledge of the complainants. Admittedly, the claim letter dated 17/05/1996 addressed to different complainants speaks about allotment of flats in the proposed residential complex. However, the said letter also further speaks that in the event of issuing further notice for making payment, failing which, 24% interest p.a. was chargeable on the amount due. The stages of payments were stated. After notice 10% followed by 40% and 25% on Slab work, 10% on starting of plastering and finishing, 5% on the date of possession. This allotment letter relied upon by the complainant was subjected to further letter of the even date (on stamp paper of `20/-) with riders was issued to all the complainants. This letter clarifies the position that the amount paid was deposited for the flats mentioned which will carry guaranteed interest of 2.5% per month.
Such guarantee was advanced for 15 months and the accumulated amount together with interest was to be returned at the end of 15 months. The complainants were under obligation to surrender the guarantee letter and profit or loss in such a deal was the entire liability of the complainants. We agree with the learned advocate of the opponents arguments as are supported by documentary evidence on record.
4. Ld.Advocate of the opponents further submitted that detailed statement of the deposits received and the interest accrued thereon @ 18% p.a. is available in the complaint compilation, which reveals that total amount received from one of the complainants Mr.Ganesh M. Patel was `14,50,000/- since 21/12/1995 till 31/03/1997. Interest as accrued thereon @ 18% p.a. was `39,70,100/-, which was refunded to the complainant after deducting TDS of `31,610/- and such a statement along with Form no.16-A was forwarded to the complainant.
Further, Ld.Advocate pleaded that complainants allegedly booked 8 flats bearing nos. 803, 804, 902, 903, 1001, 1002, 1003 & 1004. Out of 8 flats, consumer complaints have been filed in respect of flat nos. 804, 803, 903, 1004 & 1003 only. Rest of the three flats bearing nos. 902, 1001 & 1002 allegedly purchased, there is no statement from the complainants or no consumer complaint whatsoever has been filed in respect of these three flats. It is also to be noted that by same cheque bearing no.817479 in consumer complaint nos.116, 117 & 122 of 2012 down payment in respect of three flats has been made.
Similarly, by the one cheque bearing no.817492 down payment of `1,75,000/- in respect of two flats bearing nos. 903 & 1004 in consumer complaint nos.CC/12/118 and CC/12/121 was made.
5. According to opponents, the complainants are not bonafide purchasers as they are in profession of money lending transaction in one family. Purchase of 8 flats cannot be called as genuine transaction to call them as consumer.
6. Ld.counsel for the complainants tried to explain that though the complainants belongs to one and same family, with a view to have separate accommodation, booked 8 flats as separate residence. Allotment letter issued by the opponent is a conclusive document to establish that the down payment as against agreed sale cost of each flat was made and duly received by the opponent. However, Ld.counsel could not come forward with satisfactory explanation as to how two documents relied by the parties have been created 1) in respect of allotment of flats and 2) about the payment made as deposit against the flat, to carry 2.5% interest per month on cancellation of guarantee. Further, no satisfactory explanation is on record as to how by one and the same cheque, different flats with identical amounts were booked as such a system is unknown in banking transaction.
7. Out of total 8 flats, complaints have been filed only in respect of 5 flats allegedly purchased and there is no statement about the status of remaining three flats. On perusal of the record, we find that by the claim letter of 17/05/1996 addressed separately in each complaint, different flats were agreed to be sold by the said allocation letter. The second letter of even date (on stamp paper of `20/-) clearly indicates payment of 2.5% interest per month on the deposits made by the complainants as a guaranteed return. The complainants have not clarified as to how these two documents relied upon by them were created with different stipulation. There is no denial that all the complainants are members of one and the same family. They entered into a deal of depositing money in lieu of flats for the purpose of high rate of interest. The complainants have failed to substantiate their case as to how they are covered under the provisions of section 2(1)(d) of the Consumer Protection Act, 1986 to define them as consumer. Since the amount deposited has been refunded with interest of 18% p.a. and also income tax deducted at source is well within the knowledge of each complainant, no explanation in this behalf has come forward from any of the complainants as rightly pointed out by the learned advocate of the opponents.
8. Considering totality of these cases, we find that all these complaints filed by each of the complainant separately for obtaining possession of the alleged purchase of flats is not a genuine transaction to be covered under the Consumer Protection Act, 1986. Though at this stage we are not going into the merits of the cases but we are fully convinced that the transaction entered between the parties is a commercial one to earn high rate of interest on the deposits.
Therefore, complaints cannot be called as consumer complaints under section 2(1)(c) of the Consumer Protection Act, 1986. Hence, all these consumer complaints are not admitted and stand rejected in limine.
Pronounced on 10th May, 2013.
[HON'BLE MR.
Dhanraj Khamatkar] PRESIDING MEMBER [HON'BLE MR.
Narendra Kawde] MEMBER Ms.