State Consumer Disputes Redressal Commission
Mr.Melroy Savio Lobo vs Shree Balaji Builders And Developers ... on 20 March, 2024
1 (CC/18/1028)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO.CC/18/1028
Mr.Melroy Savio Lobo
R/at- 10, Rear Hilal Building,
Mascerenhas Road,
Mazgaon,
Mumbai 400 010. Complainant
Versus
1. Shree Balaji Builders &
Developers
202/203, Sudama Commercial
Complex, Katai Naka,
Kalyan Shil Road,
Dombivali (E ),
Thane 421 204.
2. Meghna Raja Majethia
Partner
Shree Balaji Builders &
Developers
202/203, Sudama Commercial
Complex, Katai Naka,
Kalyan Shil Road,
Dombivali (E ),
Thane 421 204.
3. Ashwin Mohanlal Kapadia
Shree Balaji Builders &
Developers
202/203, Sudama Commercial
Complex, Katai Naka,
Kalyan Shil Road,
Dombivali (E ),
Thane 421 204. Opponents
2 (CC/18/1028)
BEFORE :
Dr. Satish A. Munde, Presiding Member
Mr. Vijay C. Premchandani, Member
PRESENT:
For the Advocate Anita Marathe
Complainant(s):
For the
Opponents(s): Advocate V. Padmakaran
JUDGMENT
Dated 20th March, 2024
Per: Hon'ble Mr. Vijay C. Premchandani, Member
[1] The Complainant has filed present consumer complaint under section 17 of the Consumer Protection Act, 1986. the gist of the complaint is as under-
[2] The Complainant submits that, the Complainant has booked flat bearing No. 804, admeasuring 540 square feet carpet area located in the A Wing ,on the 8th floor of the proposed 'Mangal Murti' building in the project Shree Balaji Srushtee with the Opponents for total consideration of Rs.36,52,212/- comprising flat cost of Rs.34,76,000/- and other general expenses of Rs.1,76,212/-. The Complainant submits that, the Opponents have not constructed the flat as agreed and offered possession of the same till March 2016 thereby the Opponents have adopted unfair trade practice towards the Complainant. The Opponents have made false 3 (CC/18/1028) representation to the Complainant in respect of the possession of the flat and also misleaded the status of completion of the project on various websites. Therefore, that amounts to deficiency of service towards the Complainant. the Opponents failed to hand over possession as per Maha Rera registration. Hence, the Complainant has filed the present complaint. The Complainant has prayed that the Opponents are in position to offer the vacant, peaceful and legal possession of the flat in question, the Complainant is ready and willing to pay the balance consideration amount on or before 30th June, 2019. If the Opponents are not in a position to offer vacant, peaceful and legal possession of the flat in question, on or before 30th June, 2019, the Opponents may be directed to refund amount of Rs.14,25,160/- paid by the Complainant and along with interest @ 18% p.a and also may be directed to pay compensation as well as costs of litigation.
[3] The complaint was heard on the admission and was admitted. Notices were issued to the Opponents. The Opponents were served with the notices. The Opponents appeared through their Counsel and filed the written version. The Opponents have submitted in the written version that, due to the various reasons beyond the control of the Opponents, expected progress of construction of the building could not be achieved. The Opponents have made all possible efforts to put the project into reality and to complete on or before 30th June, 2021. The registration of the project with Maha Rera is valid up to 30th June, 2021. The Opponents are 4 (CC/18/1028) ready and willing to enter into Agreement for Sale of the flat No. 804 in the name of the Complainant and has have made all possible efforts to overcome the standstill and is likely to succeed. The Opponents have further contended that, on completion of the project possession of flat No. 804 will be offered to the Complainant and the advance payment of Rs.14,25,160/- will be adjusted against the total price of the said flat No.804. The Opponents have further contented that, in case the Complainant is seeking cancellation of booking of flat No. 804, the Opponents are ready and willing to return advance payment of Rs.14,25,160/- to the Complainant without deducting the administrative charges. The Opponents have denied the allegations of violation of Maha Rera Rules. The Opponents have further contended that, they have not refused to fulfil the obligations stipulated in the allotment letter dated 8th June, 2015. The Opponents have further contended that, there is no deficiency in service on their part. Hence, the Opponents have prayed for dismissal of the complaint.
[4] Perused the complaint, the list of documents filed by the Complainant, written statement, the list of documents filed by the Opponents, evidence of both the parties, additional evidence produced by the parties, the written arguments. Following points arise for our determination and we have recorded our findings against the same for the reasons given below-
5 (CC/18/1028)
Sr.No. POINTS FINDINGS
1 Whether the Complainant is the In the affirmative
consumer of the Opponents as
defined u/s 2(1)(d) of the
Consumer Protection Act,
1986?
2 Whether the Opponents have In the affirmative
given deficiency of service or
adopted unfair trade practice
towards the Complainant by
delaying possession of the flat
to the complainant?
3 Whether the Complainant is As per final order
entitled for the relief claimed in
the complaint?
4 What order ? As per final order
:- R E A S O N S :-
As to the point No.1-
[5] In the month of May 2015 the Complainant has booked flat with the Opponents bearing No. 804, admeasuring 540 square feet carpet area located in the A Wing ,on the 8th floor of the proposed 'Mangal Murti' building in the project Shree Balaji Srushtee with the Opponents for total consideration of Rs. 36,52,212/- comprising flat cost of Rs.34,76,000/- and other general expenses of Rs.1,76,212/-. and for that issued cheque in the sum of Rs.14,25,160/-, bearing No.366426, in 6 (CC/18/1028) favour of the Opponents and the same has been encashed by the Opponents. The Opponents have issued receipt dated 8th June 2015, copy of which is annexed to the complaint at Exh.G. The Opponents have issued letter of allotment dated 8th June, 2015 annexed to the complaint at Exh.H. The said facts have been admitted by the Opponents in their written version. Hence, it is proved that the Complainant is a 'consumer' of the Opponents, as defined under section 2(1)(d) of the Consumer Protection Act, 1986. Hence, the answer of Point No.1 is in the affirmative.
As to the point No.2- [6] In the written version consideration for the booking of the flat has been accepted by the Opponents and for which they have issued letter of allotment on 8th June, 2015. It is also admission on the part of the Opponents that there was delay in the construction of the said project, which was beyond the control of the Opponents and expected progress could not be achieved within the stipulated period. Admittedly, the Opponents have applied for Maha Rera in the year 2018. From the year 2015 to 2018 there was delay in progress of the said project thereby the Complainant has caused monetary loss and also failed to get possession of the alleged flat. The Opponents in the written version failed to produce the documentary evidence to show that what was the reason thereby the project was delayed and the same was beyond the control of the Opponents. In the absence of the 7 (CC/18/1028) pleadings, it transpired that, the Opponents deliberately delayed the project, which amount to deficiency of service towards the Complainant as well as by accepting advance money towards alleged flat from the Complainant and using the same, amounts to unfair trade practice towards the Complainant. Therefore, we answer the point No.2 in the affirmative.
As to the point No.3- [7] Admittedly, there is huge delay and the Complainant has booked the flat and paid the consideration amount of Rs.14,25,160/- to the Opponents and further the Opponents failed to deliver the possession of the booked flat within stipulated period of time though the Complainant was ready and willing to pay the balance consideration amount. This Commission cannot go beyond the prayers made by the Complainant in the prayer clause. The Complainant has asked for possession of the booked flat on or before 30th June, 2019. Since the possession of the flat has not been given on or before 30th June, 2019 we pass the following order of refund of amount-
:- ORDER :-
1] The Complaint is hereby partly allowed. 2] The Opponents are jointly and severally directed to refund amount of Rs.14,25,160/- alongwith interest @ 12% p.a. from the date 1st
8 (CC/18/1028) April, 2016 till realisation of amount to the Complainant.
3] The Opponents are jointly and severally directed to pay an amount of Rs.5,00,000/- to the Complainant towards compensation for mental agony and harassment suffered by the Complainant.
4] The Opponents are jointly and severally directed to pay an amount of Rs.1,00,000/- to the Complainant towards costs of complaint. 5] Both the parties are directed to comply the order within a period of 30 days from the date of receipt of copy of this Order.
6] In case, compensation and costs amount is not paid by the Opponents jointly and severally to the Complainant, within a period of 30 days from the date of receipt of copy of this Order, the amount shall carry interest @12% p.a. from the date of order till its realisation.
7] Copy of this order be supplied to both the parties free of costs.
[Vijay C. Premchandani] [Dr. Satish A. Munde]
Member Presiding Member
rsc