State Consumer Disputes Redressal Commission
Smt Neelam Arvind Shah & Ors. vs Shri Mohammed Azam Qureshi & Ors. on 21 March, 2012
UNDER CERTIFICATE OF POSTING
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/09/164
1. SMT NEELAM ARVIND SHAH
R/AT YASMIN VILLA FLAT NO 602 215, 27TH ROAD BANDRA
(W) MUMBAI
MAHARASTRA
2. SAMIR S/O ARVIND SHAH
YASMIN VILLA, FLAT NO.602, 215, 27TH RD., BANDRA (W),
MUMBAI
MAHARASHTRA
3. NIKHIL S/O ARVIND SHAH
YASMIN VILLA, FLAT NO.602, 215, 27TH RD., BANDRA (W),
MUMBAI
MAHARASHTRA
...........Complainant(s)
Versus
1. SHRI MOHAMMED AZAM QURESHI
5A/5 SANJITA APT JUHU ROAD MUMBAI 400049
MAHARASHTRA
2. MOHAMMED AMJHAD QURESHI
5A/5 SANJITA APARTMENTS, JUHU RD.,
MUMBAI 400 049.
MAHARASHTRA
3. M/S CLASSIC ART CORPORATION
CHANDRA'S HOUSE, AMBEDKAR RD., OPP.-UP NAGAR,
KHAR(W)
MUMBAI 400 052.
MAHARASHTRA
4. MOHINI LACHMANDAS PHERWANI,
R/AT BANDRA PARADISE,
FLAT NO.5,1ST.FLOOR,33RD.RD., KHAR (W), MUMBAI-400 052.
5. VEENU LACHMANDAS PHERWANI,
R/AT BANDRA PARADISE,
FLAT NO.5,1ST.FLOOR,33RD.RD., KHAR (W), MUMBAI-400 052.
6. POONAM VATWANI,
R/AT 200/5483, PANT NAGAR, GHATKOPAR(E), MUMBAI-400
075.
7. NAVIN VATWANI,
R/AT 200/5483, PANT NAGAR, GHATKOPAR(E), MUMBAI-400
075.
8. SURENDRA BIJLANI,
R/AT 3, SANJUKA APARTMENT, OFF. S.V. RD., BANDRA, MUMBAI-400 050.
9. POONAM BIJLANI,
R/AT 3, SANJUKA APARTMENT, OFF. S.V. RD., BANDRA, MUMBAI-400 050.
10. DR. ASHOK KHEMANI,
R/AT 801, SEA KING, H. K. BHABA RD., BANDRA,
MUMBAI-400 050.
11. RITA KHEMANI,
R/AT 801, SEA KING, H. K. BHABA RD., BANDRA,
MUMBAI-400 050.
12. DR. DEVKUMAR G. CHANDANI,
402, FARDOUS APARTMENTS, DR. AMEDKAR RD., KHAR(W),
MUMBAI-400 052.
13. KIRAN CHANDANI,
402, FARDOUS APARTMENTS, DR. AMEDKAR RD., KHAR(W),
MUMBAI-400 052.
............Opp.Party(s)
BEFORE:
Hon'ble Mr. P.N. Kashalkar PRESIDING MEMBER
Hon'ble Mr. Dhanraj Khamatkar Member PRESENT:
None for the Complainants.
Ms.Rashmi Manne, Advocate proxy for Mr.U.B. Wavikar, Advocate for the Opponent Nos.1 & 2.
Mr.Mohit Bhansali, Advocate, proxy for Mr.S.B. Prabhavalkar, Advocate for the Opponent Nos.4 to 11.
O R D E R Per Shri P.N. Kashalkar Honble Presiding Judicial Member:(1)
This was the complaint filed by the Complainant alleging deficiency in service on the part of the Opponents.(2)
According to Complainants Opponent Nos.1 to 3 refused to execute standard agreement of sale under the Provisions of Maharashtra Ownership Flats Act, 1963 in respect of Flat No.602 to be built in the Building known as Yasmin Villa and not completing the building and in not procuring occupation certificate. The Complainant had sent notice and various communications from 2005 to 2009 requiring Opponents to comply with the Memorandum of Understanding dated 1st March, 2003 in respect of sale of said flat to the Complainant. According to Complainant they were in need of residential premises. They learnt that one M/s.M.A. Mistri and Company were owner of old house Yasmin Villa, Flat No.215, 27th Road, Bandra (W), Mumbai, who had executed agreement in favour of Opponent No.3 M/s.Classic Art Corporation for development of the said property by constructing multi-storied apartment building consisting of Ground + 3 stories. The owners agreed to execute power of attorney in favour of developers and construction work was to be carried out by the developers who shall construct the building in terms of development agreement dated 2nd September, 1999. The Developer Opponent No.3, which is a registered partnership firm and its partners which included Opponent No.1 &
2 and Mr.Kiran Chandnani were responsible for conduct of business. Complainants therefore entered into an MOU on 1st March, 2003 with the Opponents and thereby Opponents agreed to sell, assign and transfer Flat No.602 on 6th Floor at Yasmin Villa for total consideration of `64,00,000/- payable in installments by the Complainants to the Opponents. The payment was to be made at various stages and upon handing over possession of said flat admeasuring 1500 sq.ft built up area on 6th Floor ultimate sum of `12,00,000/- was payable on or before 4th May, 2003, another amount of `5,00,000/- was to be paid by the Complainant on 28th June, 2003 and last installment of `12,00,000/- was payable by the Complainant after Opponents producing the occupation certificate.
According to Complainant in terms of MOU they had paid total amount of `42,50,000/- to the Opponents for the purpose of obtaining custody of possession of Flat No.602 but Complainants were put in possession of Flat No.602 on 11th May, 2003 admeasuring 900 sq.ft.(carpet) equivalent to 1080 sq.ft.
built up area. According to Complainants the Vendors had agreed to give them Flat No.602 of 1500 sq.ft. According to Complainants for a consideration of `64,00,000/- payable by Complainants, the apartment admeasuring 1500 sq.ft. built up area was to be provided. The Complainant made payment of `42,50,000/- and they are ready to make balance payment of `21,50,000/- provided the possession of 1500 sq.ft. built up area is handed over and necessary deed of conveyance is executed in their favour. The Complainants pleaded that since on 11th May, 2003 they have been put in possession of said apartment no. 602 only of 1080 sq.ft. built up area and since the Opponents neglected and avoided to handover custody and possession of 1500 sq.ft. area in the said apartment, the Opponents are guilty of deficiency in service. They had not provided them all documents, records and plans in respect of the said building. Said flat is required to be given under Maharashtra Ownership Flats Act. They had not entered into standard agreement for sale under Maharashtra Ownership Flats Act. They have not completed the building in all respects and had not obtained occupation certificate in respect of said plot and by not handing over possession of balance area of 420 sq.ft they were guilty of deficiency in service with reference to MOU entered into between the Opponent Nos.1 to 3 and the Complainants. Complainants had sent legal notice on 20th June, 2005 and Opponents acknowledged the receipt of `42,50,000/- towards the cost of the Apartment No.602 on 6th Floor of Yasmin Villa and also admitted that on 11th May, 2003 possession was given to the Complainants in terms of MOU dated 1st March, 2003 but they had demanded `21,50,000/- from the Complainants towards the balance cost of the apartment and therefore, they filed consumer complaint alleging deficiency in service in the matter of allotment and sale of Apartment No.602 admeasuring 1500 sq.ft. built up in Yasmin Villa, Plot No.215, 27 Street, Bandra, Mumbai. They also prayed for handing over custody and possession of the said apartment admeasuring 1500 sq.ft built-up area in terms of MOU dated 1st March, 2003. They also prayed that directions should be given to the Opponents to provide documents, records and plans in respect of the said building.
They also prayed that Opponents should be directed to procure occupation certificate in respect of the said flat for the purpose of conveyance in favour of the Complainants and direct Opponents to give balance area of 420 sq.ft. in addition to the present flat of 1080 sq.ft. and direct Opponents to refund an amount of `18,00,000/- with interest and they also claimed compensation of `75,00,000/- on account of deficiency in service.
(3)The Opponent Nos.1 and 2 filed written version and contested the complaint. According to Opponent Nos.1 and 2 Complainants are not the consumers within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 as Opponent Nos.1 and 2 are not the developers of the said land and building and that M/s.Classic Art Corporation Opponent No.3 were the developers and promoters of the said building who had allotted said flat (Flat No.602) to the Opponent Nos.1 and 2. They pleaded that M/s.Classic Art Corporation had entered into development agreement with the Owners of then existing building known as Yasmin Villa on Plot No.215 of TPS III of Bandra, situated at 27th Road, Bandra (West).
Said M/s.Classic Art Corporation suffered some financial constraints for construction of the said additional floors and therefore, to raise contributions from various parties against allotment of flats to be constructed on 4th, 5th, 6th and 7th floors they approached Opponent Nos.1 and 2 and allotted Flat No.602 on 6th Floor. Thus, the Opponent Nos.1 and 2 were allotted said flat for valuable consideration by Opponent No.3 and in turn the Opponent Nos.1 and 2 sold the said flat to Complainants. Therefore, they pleaded that the re-purchaser is not a consumer within the meaning and definition of consumer under section 2(1)(d)(ii) of the Consumer Protection Act, 1986 and on this ground alone the complaint deserves to be rejected. They also pleaded that there was no agreement of sale between the parties except the MOU and mere sale of property in terms of MOU cannot come within the purview of Consumer Protection Act, 1986 and on this ground also complaint should be dismissed.
(4)The Opponent Nos.1 and 2 further pleaded that complaint is hopelessly barred by limitation. Complainant admittedly got possession of the flat on 11.05.2003 and they should have filed consumer complaint on or before 10.05.2005, within two years, if at all they had any grievance. But complaint has been filed on August, 2009 after delay of 3 years which necessarily mean that complaint is absolutely barred by limitation. They pleaded that the first notice sent by Complainants to the Opponents was also beyond the period of limitation. There were no complaints whatsoever from the date of possession (from 11.05.2003 till July, 2005) which itself shows that complaint was filed as on 11.09.2009 after thought to avoid the payment of remaining amount of `21,50,000/- to Opponent Nos.1 and
2. They further pleaded that they are not builders or developers of Flat No.602 of Yasmin Villa. The Complainants purchased the said flat on ready possession basis after due inspection and on fully satisfying themselves about the area etc. They accordingly signed possession letter dated 11.05.2003, copy of which has been annexed to the complaint at page No.42. They pleaded that they were ready and willing to execute agreement on payment of balance amount but it was the Complainants who avoided to pay the balance amount of `21,50,000/- after taking possession of the flat and did not come forward to execute the agreement.
They denied that they are guilty of deficiency in service on any count. Opponent Nos.1 and 2 pleaded that they were not partners of Opponent No.3 firm.
They were not concerned with conduct of business of Opponent No.3. They had not acquired any right to develop Plot No.215 and to construct Flat No.602 on 6th Floor of 1500 sq.ft. They admitted that they had been allotted said flat no.602 on 6th Floor of Yasmin Villa for valuable consideration by Opponent No.3 and they had in turn agreed to sell the said flat to the Complainants for total lump-sum consideration of `64,00,000/- for ready possession on as is where is basis. They denied that sale of said flat was based on price per sq.ft. but it was on lump-sum consideration fixed between the parties after the flat was inspected by the Complainants. They pleaded that after taking possession of flat Complainants neglected to pay remaining balance amount and they have filed false complaint with malafide intention to avoid balance payment. They denied that Flat No.602 was having any short-fall in the carpet area.
They pleaded that Mr.Arvind Shah purchased the said flat after inspecting the flat 3/4 times and agreed to purchase the said flat as it is on ready possession basis. They denied that Complainants had ever made any complaint to the Opponent Nos.1 and 2 about incompleteness of the flat or shortfall of the flat area after taking possession on 11.05.2003. The Opponents pleaded that Complainants admitted that they owe balance amount of `21,50,000/- payable to the Opponent Nos.1 and 2. They therefore pleaded that the complaint is filed by the Complainants for whatever reliefs is absolutely barred by limitation and complaint should be dismissed with cost.
(5)Opponent Nos.3, 12 and 13 have filed written version and pleaded that the complaint as filed by the Complainants was absolutely false, frivolous and vexatious. It has been filed just to harass Opponent Nos.3, 12 and 13. They pleaded that there is no cause of action accruing to the Complainants against Opponent Nos.3, 12 and 13. They pleaded that Opponent Nos.3, 12 and 13 were not having any contract with the Complainants and they were not aware of dealing between the Complainants on the one hand and Opponent Nos.1 and 2 on the other hand. They pleaded that claim of the Complainants cannot come within the purview of Consumer Protection Act. The Complainants had executed MOU with the Opponent Nos.1 and 2 on 1st March, 2003 and they were silent for so many years. Said MOU executed between the Complainants and Opponent Nos.1 and 2. It was not registered one, no stamp duty was paid on the said MOU. There was no signature of Opponent Nos.3, 12 and 13.
Opponent No.3 has not signed MOU, though Opponent No.3s name has been mentioned in MOU. Opponent No.3 pleaded that it was not aware about the signature on MOU of another partner who was father of Opponent Nos.1 and 2 and Complainants had not made said person as party. Opponent No.3 is not registered partnership firm. The Partnership is between Kiran D. Chandnani and Mohamed Aslam Qureshi and as per partnership agreement without consent of other partners one partner cannot execute MOU. Opponents pleaded that on 14th December, 1999 Joint Venture Agreement was executed by the Opponent No.3 with other opponents and parties agreed to develop jointly the suit property and agreed to contribute amount of the construction and also to distribute seven flats amongst themselves. As per said Joint Venture Agreement Flat No.601 was allotted to Mohammed Aslam Qureshi and Mrs.Amina Qureshi and Flat No.602 was allotted to Mohammed Azam Qureshi and Mohammed Amjad Qureshi. Therefore, Opponent No.3, 12 and 13 pleaded that they had no role in dealing with Complainants and Opponent Nos.1 and 2 pleaded that complaint should be dismissed with cost.
(6)Initially the complaint was filed against the Opponent Nos.1 to 3 but during the course of pendency of the complaint Opponent Nos.4 to 11 were added as Opponents. They also filed written version. They pleaded that the complaint as filed by Complainants against them is false, frivolous and should be dismissed with compensatory costs. They pleaded that the present complaint in the present frame and form qua Opponent nos.4 to 11 cannot be filed as consumer complaint.
Originally, the allegations were made against Opponent Nos.1 to 3 by the Complainants that they were guilty of deficiency in service on their failure, omission, refusal or avoidance to provide necessary documents and plans in respect of apartment No.602 in the building known as Yasmin Villa, on their failure to execute standard agreement under MOFA Act and failure to obtain occupation certificate and failure to handover flat admeasuring 1500 sq.ft. or for short fall of 420 sq.ft. area in the said flat.
They pleaded that Opponent Nos.4 to 11 were not party to the said MOU as they had not engaged service of Opponent Nos.4 to 11 for consideration and therefore, consumer dispute as filed by the Complainants against them is not tenable in law with reference to the definition of consumer. They pleaded that no cause of action accrued in favour of the Complainants to file present complaint against the Opponents.
They pleaded that complaint is absolutely barred by limitation because Complainant took possession of the flat on 11.05.2003. They pleaded that Complainants were knowing shortfall of built-up area of 420 sq.ft. from 01.3.2003 itself. They therefore, pleaded that they should be deleted from the complaint as they have been unnecessarily joined as Opponents.
(7)Opponents had filed written version. Both parties were directed to file affidavit in evidence, if any, under section 13(4) of the Consumer Protection Act, 1986 and the matter was adjourned to 20.06.2011. On 20.06.2011 Advocate Mr.Sutar appeared for the Complainants and applied for grant of time to file affidavit in evidence on behalf of the Complainants. Subject to cost of `500/- said application was allowed and matter was adjourned for filing of affidavit of evidence of the Complainant to 19.07.2011. Again on 19th July, 2011 Advocate for the Complainants sought time to adduce evidence and subject to cost of `1,000/- complaint was adjourned to 15.09.2011 for filing affidavit in evidence of the Complainant. On 15.09.2011 Complainants were absent.
Affidavit in evidence was not filed, their evidence was deemed to be closed. Opponent Nos.1 and 2 filed affidavit in evidence. Opponent Nos.4 to 11 filed affidavit in evidence. All the Opponents filed common pursis closing their respective side evidence and matter was adjourned for filing brief notes of arguments.
Brief notes of arguments have been filed by the Opponent Nos.1 and 2 and Opponent Nos.4 to 11, so there were no argument and there was no evidence adduced by the Complainants.
(8)In the light of all these facts let us see whether complaint can be allowed for alleged deficiency in service on the part of the Opponent Nos.1 to 3 and remaining Opponents.
(9)Firstly, we have to decide whether the consumer complaint as filed by the Complainants is tenable in law under the Consumer Protection Act. Opponent Nos.1 and 2 and even all other Opponents have raised issue that Opponent Nos.1 and 2 are not the developers of the land and building and that Opponent No.3 M/s.Classic Art Corporation were developers and promoters of the said building, who had allotted Flat No.602 to Opponent Nos.1 and 2, since Opponent Nos.1 and 2 had given some financial assistance to Opponent No.3 M/s. Classic Art Corporation. For having given financial help to M/s.Classic Art Corporationn, Opponent No.3 had allotted Flat No.602 for valuable consideration and Opponent Nos.1 and 2 in turn sold the said flat to the Complainants under MOU. Now, from all these facts it is crystal clear that Complainants had dealings with Opponent Nos.1 and 2 only but Opponent Nos.1 and 2 were not builders and developers.
They were simply financer of Opponent No.3. Opponent No.3 alone was the builder and developer who was given old building of Yasmin Villa for development by adding flats on 4th, 5th, 6th and 7th Floors and since it needed finances, it approached Opponent Nos.1 and 2 who provided the finance to Opponent No.3 and Opponent No.3 M/s.Classic Art Corporation in turn had given Flat No.602 to the Opponent Nos.1 and 2 by way of consideration. It is thus, Flat No.602 which was allotted to Opponent Nos.1 and 2 by Opponent No.3 which flat was agreed to be sold or was sold to the Complainants under MOU executed by Opponent Nos.1 and 2. This MOU is dated 1st March, 2003. It is also signed by M/s.Classic Art Corporation as IInd Part and it also signed by Complainants Smt.Neelam Arvind Shah, Shri Samir Arvind Shah and Shri Nikhil Arvind Shah. By this MOU for the total consideration of `64,00,000/-, Flat No.602 of 1500 sq.ft. built-up area was agreed to be given to the Complainants. In terms of this MOU Mr.Mohammed Qureshi and Shri Mohammed Amjhad Qureshi handed over possession of flat no.602 to the Complainants on 11th May, 2003 as is clear from the possession letter which is signed by both the Vendors.
In the possession letter it has been clearly mentioned that they had agreed to sell, assign and transfer Flat No.602 admeasuring 1500 sq.ft. built-up area on the 6th floor of Yasmin Villa situated on plot no.215, 27th Road, Bandra (W), Mumbai and today they had handed over vacant and peaceful possession of the flat to Smt.Neelam Arvind Shah, Shri Samir Arvind Shah and Shri Nikhil Arvind Shah. Thus, what is pertinent to note is the fact that this transaction of resale was between Mohammed Azam Qureshi and Mohammed Amjad Qureshi on the one hand and Purchasers, Smt.Neelam Arvind Shah, Shri Samir Arvind Shah and Shri Nikhil Arvind Shah on the other hand and this was also signed by Developer M/s.Classic Art Corporation. Since this transaction of sale of flat by the Vendors who owned the flat in question cannot be said to be a consumer dispute between flat purchasers i.e. Complainants and builder and developers i.e. Sellers. The sellers Mr.Mohammed Azam Qureshi and Mohammed Amjad Qureshi of the said flat were not builder developers. They were allotted this flat since they had provided some fiancs to M/s.Classic Art Corporation, the Opponent No.3, which was a partnership firm of builders and developers. Any transaction between the owner of the flat and third person is an incident of resale of flat and in case of resale, under Consumer Protection Act, consumer complaint cannot be filed. It was basically a transaction between the Vendor of the Flat and the purchasers of the flat. It is not a transaction between flat purchaser on the one hand and builder developer on the other hand. So, this was a transaction which cannot fall within the ambit and purview of consumer complaint and the Complainants cannot be said to be consumers under section 2(1)(d) of the Consumer Protection Act, 1986, nor the Opponent Nos.1 and 2 could be said to be service providers of the Complainants.
(10)Secondly, we are finding that the complaint as filed by the Complainants is absolutely barred by limitation in as much as the Complainants admittedly took possession of the flat from Opponent Nos.1 and 2 on 11.05.2003 in terms of MOU dated 1st March, 2003. On that day possession letter was issued by the Vendors Opponent Nos.1 and 2 to the Complainants. Said possession letter clearly stipulated that Flat No.602 was admeasuring 1500 sq.ft. built-up area situated on 6th Floor in Yasmin Villa on 27th Road, Bandra(W), Mumbai. If it was their case that the possession of the Flat No.602 was given having built-up area of only 1080 sq.ft. and there was shortage of 420 sq.ft., then within two years from 11th May, 2003 they should have filed consumer complaint. But, this complaint came to be filed as late as on 11.09.2009, much beyond the period of limitation and it was not accompanying with condonation of delay application. So many prayers are made in the consumer complaint filed by the Complainants which included prayer to direct Opponents to execute agreement as per Maharashtra Ownership Flats Act, 1963. However, prayer of this nature should have been made within two years by filing consumer complaint. Complainants took possession of the flat on 11th May, 2003, who did not bother to file consumer complaint on or before 10th May, 2005 and they filed the consumer complaint on 11.09.2009, by that time period of limitation was already over and therefore, on this ground alone the complaint is required to be dismissed being barred by limitation.
(11)Thirdly, we have given various dates, from roznamas it can be seen that Complainants were given ample opportunities to adduce affidavit in evidence but same was not adduced despite many chances given to the Complainants and for want of evidence on record in terms of affidavit, the complaint is required to be thrown out of this Commission on that ground alone.
(12)Fourthly, it is the case of the Opponent Nos.1 and 2 that when they demanded balance amount of `21,50,000/-, instead of paying the same the Complainants filed consumer complaint just to harass them and to avoid payment of remaining balance amount out of total consideration of `64,00,000/-. That, they have stated in affidavit of evidence, whereas, there is no evidence adduced on affidavit by the Complainants in the instant case.
(13)For all these reasons we are finding that the consumer complaint as filed by the Complainants is without any substance, same is required to be dismissed. Hence, we pass the following order:
O R D E R
(i) Consumer complaint as filed by the Complainant is dismissed.
(ii) No order as to costs.
(iii) Inform the parties accordingly.
Pronounced on 21st March, 2012.
[Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mr. Dhanraj Khamatkar] Member ep