National Consumer Disputes Redressal
Samarth Association Engineers & ... vs Ramesh Ramchandra Lokhande on 10 September, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 4729 OF 2012
(From the order dated 03.09.2012 in Appeal No.
A/11/674 of the
State
Consumer Disputes Redressal Commission, Maharashtra, Mumbai)
1. Samarth Associates Engineers &
Builders
Parijat Apartment, Near Keshavnath
Mandir
Gaonbhagh, Sangli
2. Shri Sarang Suyresh Kulkarni
R/o Parijat Apartment, Near Keshavnath
Mandir
Gaonbhagh, Sangli
3. Shri Suhas Sadashiv Kulkarni
Parijat Apartment, Near Keshavnath
Mandir
Gaonbhagh, Sangli Petitioners
Versus
Ramesh Ramchandra Lokhande
Ramanandnager, Tal-palus
District Sangli Respondent
BEFORE:
HON'BLE
MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HONBLE DR. S.M.
KANTIKAR, MEMBER
For the Petitioners : Mr.
Abhinav Mukerji, Advocate
For the Respondent : Mr. L.P.Dhir,
Advocate
With Mr. Ravi Shankar, Advocate
PRONOUNCED ON _10th
September, 2013
ORDER
JUSTICE J.M. MALIK
1. Mr. Ramesh Ramchandra Lokhande, the complainant in this case, agreed to purchase a flat bearing No.402, having super built area of 760 sq.ft., for a total consideration of Rs.8,75,000/-. The complainant paid a sum of Rs.25,000/- to the Builder Samarth Associates Engineers & Builders and its Partners, Sh. Sarang Suyresh Kulkarni and Sh. Suhas Sadashiv Kulkarni, the petitioners, who were the Opposite Parties, in the complaint. A receipt dated 19.11.2009, was issued to the complainant/ respondent, which runs as follows :-
Particulars:
Super-built up area of flat No.402 (2bhk flat) on Fourth floor in Samarth Residency apartment, will be of 760 sq.ft. Cost of flat will be Rs.8,75,000/- (in words, Rs. Eight lakhs seventy five thousand only). Lift maintenance charge will be Rs.50,000/- (in words, Rs. Fifty thousand) extra. Agreement expenses & Maharashtra State Electricity Board (MSEB) meter connection charges will be extra. If required, 4-wheeler parking charged extra.
Disc. Of cheque :
529821, Palus Sahakari Bank Branch, Mahaveer Nagar Cheque : Rs.25,000/-
(In words : Rs.
Twenty-five thousand only) This money is non-refundable.
Sd/-
(Abhinav Mukerji) Partner, Samarth Associates
2. There is no dispute about these facts. On 18.07.2010, the Builder, wrote to the complainant, inviting him to deposit a sum of Rs.6,00,000/- and got registered agreement, within a period of 8 days (eight days). The complainant did not respond. On 05.02.2010, the Builder, sent a notice to the complainant and informed him that the agreement with him stood terminated and an amount of Rs.25,000/-, already paid by him, as Earnest Money, stood forfeited. The complainant, immediately approached the Builder and explained that he intimated the Builder on 22.07.2010, for making the payment, when the complainant went there, nobody was available. He waited for few hours. He visited the Builder, again, on 07.08.2010. However, the Builder refused to accept the payment at that time. The complainant brought to the notice of the OPs that he was ready and willing to make the payment.
3. Aggrieved by OPs refusal, the complainant filed a complaint before the District Forum. The District Forum, after evaluating the evidence on record, directed the OPs to execute the Conveyance Deed of the flat in question and give possession of the flat by accepting the remaining amount of Rs.8,50,000/- from the complainant against the Conveyance Deed and if the complainant is in need of other amenities, mentioned in the Receipt No.376, dated 19.09.2009, then the amount be paid in that respect. The complainant was directed to pay all the amount till 31.07.2011. Costs of Rs.3,000/- was also imposed against the OPs for causing physical and mental harassment.
The parties were given one month time to comply with the said order, rendered on 16.06.2011.
4. The OPs preferred an appeal before the State Commission. The State Commission dismissed the appeal, hence this revision petition.
5. We have heard the counsel for the parties. The learned counsel for the petitioners/OPs vehemently argued that the complainant is a defaulter. He could not pay the amount of Rs.6,00,000/- . He waddled out of the commitments and he deserves no leniency from this Commission. He admitted that there is no dispute regarding the receipt of the letters, dated 18.07.2010 and 06.08.2010.
6. All these arguments are bereft of force. It is clear that the petitioners/Builders did not execute the Agreement, till the eleventh hour and piled on the agony of the allottee, by cancelling his allotment, for no valid reasons. The cause of action arose on 19.11.2009. Till date, no agreement has been executed.
7. The following deficiencies are apparent on the face of the record. First of all, it is not understood why the agreement was not executed at or about the execution of receipt of Rs.25,000/-. In Belaire Owners Association Vs. DLF Ltd. & Ors., Case No.19/2010, vide supplementary order dated 03.01.2013, the Competition Commission of India, held :-
31.The terms of the agreement to be entered into with the allottee were never shown to the allottee at the time of booking of the apartment.
These terms and conditions of the agreement were prepared and framed by the company unilaterally without consulting the buyer. Once the company had already received considerable amount from the applicants/buyers, this agreement was forced upon the allottees and the allottee had no option but to sign the agreement, as otherwise the agreement provided for heavy penalties and deduction from the money already deposited by the allottees with the company, which itself was an abuse of dominance. The appropriate procedure would have been that a copy of the agreement which DLF proposed to enter with the allottee should have been made available to the applicants at the time of inviting applications.
8. In this case, the receipt was issued on 19.11.2009. The petitioner kept quiet, till 18.07.2010.
Out of blue, he sent the notice dated 18.07.2010, which is reproduced as follows:-
i)On19.11.2009, you had booked the above mentioned flat No. 402 with us. You have given an amount of Rs. 25,000/- only (cheque no. 529821 of Paloos Sahakari Bank, Paloos). We have given the receipt No. 376 for the same.
ii)Till today dated 18.7.2010, you have not made any further transaction, or have not made the Agreement (registered) of the said flat.
iii)As on today, an amount of Rs. 6,00,000/- (Rupees six lakhs only) is balance to be received from you, which may be noted by you.
iv)By this letter, we inform you that you may get the registered agreement made within 8 days from today (18.7.2010), hence the request. Similarly, arrangement for the balance amount may also be made.
9. The evidence also reveals that the opposite parties dilly dallied to receive the remaining money. The first deficiency was that the OPs did not execute the agreement. The second deficiency was that the petitioner gave eight days time. This action, is full of guile. It smacks of malafide intention. Thirdly, without even signing the agreement, the petitioner tried to thrust upon the agreement and cancelled the same, vide letter dated 05.08.2010. No notice for cancellation was given. No warning was given. It was very easy to forfeit others money, in the sum of Rs.25,000/-. It is clear that during the gap of about one year, the price of the land/ flat had increased, by leaps and bounds. The complainant was perhaps not aware that he was buying a pig in a poke. It appears that OPs wanted to forfeit the earnest money, by hook or crook. The OPs desired to have Rs.6,00,000/-, but did not explain the status of the apartment. The letter sent by Ops, is conspicuously missing about the status of the apartment.
10. The Apex court in Lucknow Development Authority Vs. M.K.Gupta, (1994)1 SCC 243, were pleased to observe :-
The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy.
It attempts to remove the helplessness of a consumer which he faces against powerful business, described as, a network of rackets or a society in which, producers have secured power to rob the rest and the might of public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility, but for extraneous consideration, leaving the common man helpless, bewildered and shocked.
11. The next submission made by the counsel for the petitioners is that the complainant is an investor. He has got two other houses. There is no pleading or evidence, in this respect. However, the counsel for the complainant submits that the complainant is a Member of the Joint Hindu Family. He has got his old parents and another brothers family. He is the Karta of Joint Hindu Family, old houses are owned by him, as Karta of Joint Hindu Family. It is clear that the complainant has got three separate families and he wants the house for his personal use. This argument must be left out of consideration.
The action of OPs is below the belt. Therefore, we hereby, pass the following order :-
1) The orders of the fora below are maintained.
2) The revision petition is dismissed, with costs of Rs.25,000/-, which be paid by the petitioners/OPs, to the complainant, directly, by means of demand draft drawn in his favour, within 60 days, otherwise, it will carry interest @ 9% p.a.
3) The respondent/complainant is directed to pay the remaining amount with the District Forum, within 60 days. The amount which has already been paid, shall be deducted/ adjusted.
4) The petitioners/OPs are directed to handover the possession and execute the Conveyance Deed, within 60 days, thereafter.
5) In case, there is a default on the part of the petitioners/ OPs, after expiry of four months, they shall be liable to pay extra penalty of Rs.15,000/-, per month, to the complainant, till possession of the flat and, execution of the Conveyance Deed, in favour of the complainant.
..J (J.M. MALIK) PRESIDING MEMBER .
(DR.S.M. KANTIKAR) MEMBER dd/7