State Consumer Disputes Redressal Commission
Ramkrishna Rishikumar Sinha vs Vaidehi Akash Housing Pvt Ltd on 28 January, 2016
CC/12/34 1/10
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO.CC/12/34
Ramkrishna Rishikumar Sinha
R/at : B-74, Kalpataru Gardens, Ashok
Nagar, Kandivali East, Mumbai 400 101. ...........Complainant(s)
Versus
1. Vaidehi Akash Housing Pvt.Ltd.
Thorugh its M.D.-G.S.Pondhekar
Presently having its office at 1st floor,
D.N.Nagar Saptarshi CHS Ltd., Behind
Madhuban Society, Barfiwala College Lane,
D.N.Nagar, Andheri West, Mumbai 400 053.
2. Mr.Gurunath Sadashiv Pondhekar
M.D. of Opponent no.1.
3. Mrs.Sunita Gurunath Pondhekar,
Director of opponent no.1,
Both opponent no.2 and 3 residing at
501-502, Abhishek Apartments, Juhu
Versova Link Road, N.Datta Marg, Four
Bungalows, Andheri West, Mumbai.
4. Ms.Madhavi Rajesh Kelkar,
Director of the opponent no.1,
R/at : 401-402, Mainish Garden Co-
op.Housing Society, Near Seven Bungalows,
Andheri West, Mumbai 400 053.
5. New D.N.Nagar Co-operative Housing
Society Union Ltd.,
Sagar Sahaniwas Colony, Near
D.N.Nagar, Andheri 400 053. [Deleted
vide order dated 31/01/2013]
6. Rustomjee Realty Private Ltd.,
JMC House Ltd., Disleri Compound,
Off.western express Highway, Andheri East. ............Opponent(s)
BEFORE:
Usha S. Thakare, PRESIDING JUDICIAL MEMBER
Narendra Kawde, MEMBER
For the
Complainant: Adv.Leena Kulkarni
For the Opponent:
Adv.Ajay Pawar
CC/12/34 2/10
ORDER
Per Mr.Narendra Kawde, Hon'ble Member [1] Opponent no.1 is a builder/developer company and opponent no.2, 3 and 4 are the directors thereof. Opponent no.5 is deleted by the order dated 31/01/2013 of this Commission as no relief was pressed. Opponent no.6 is alleged to have stepped in the shoes of opponent no.1 to 4 since development agreement entered into by the opponent no.5-Co-operative Housing Society with opponent no.1 to 4 has been terminated. Opponent no.1 to 4 executed registered agreement on 20/03/2009 with the complainant for sale of flat no.201 admeasuring 540 sq.ft. on the second floor of the building known as Building No.4 to be constructed by opponent no.1 to 4 for total consideration of Rs.40 lacs. Amount of Rs.10 lacs as a down payment [part consideration] has been paid by the complainant and duly acknowledged at the time of executing the agreement. Balance consideration was to be paid as per the stipulations in the para 5 of the registered agreement. Possession of the flat was to be delivered by the end of month of Dec.2010. Complainant, as pleaded, has paid total amount of Rs.27 lacs (which includes Rs.2.99 lacs against the payment of stamp duty). However, there was no response from the opponent no.1 to 4 about completion and delivery of the possession of the flat and no response whatsoever was forthcoming from the opponent no.1 to 4 even after issue of legal notices. Therefore, dispute arose at this point of time between the parties. Complainant has filed this consumer complaint alleging deficiency in service and praying for direction to hand over vacant and peaceful possession of the flat or alternatively sought monitory relief including cost and Rs.10,000/- sought for mental agony.
CC/12/34 3/10[2] After admitting the complaint on 31/01/2013, notices were issued to the opponent no.1 to 4 and 6. However, though duly served opponent no.1 to 4 remained absent without assigning any reason. Similarly, notice sent to opponent no.6 returned undelivered with postal endorsement "refused". Even on the subsequent dates of hearing, none of the opponent no.1 to 4 and 6 were present in the proceedings. By order dated 16/08/2013, complaint was allowed to be proceeded ex-parte against the opponent no.1 to 4 and 6 and it was adjourned for filing affidavit evidence by parties. On the adjourned date, opponent no.1 to 4 and 6 failed to appear and file affidavit of evidence as provided under Sec.13(2()b)(ii) r/w.Sec.13(4) of the Consumer Protection Act, 1986. At the time of final hearing, on 27/01/2014, Adv.Ajay Pawar appeared without vakalatnama for opponent no.1 to 4 and undertook to file same on record. Therefore, on his request, complaint was adjourned to 11/02/2014. On the adjourned date, none was present for the opponent no.1 o 4. Therefore, the matter was adjourned to 04/04/2014. Thereafter, the matter finally posted for hearing on 11/09/2014 and adjourned for hearing before the Division Bench on 21/01/2015. On this date, Mr.Ajay Pawar-advocate was present for the opponent no.1 to 4 and failed to file vakalatnama. On the date of hearing on 13/01/2016, Adv.Ajay Pawar again failed to file vakalatnama and on his request, case was adjourned in the interest of justice for filing his vakalatnama to enable him to address on behalf of the opponent no.1 to 4. Adv.Ajay Pawar undertook to file the vakalatnama on 14/01/2016 and therefore, case was adjourned for final hearing on 14/01/2016. On the adjourned date of final hearing, Adv.Ajay Pawar failed to file vakalatnama. However, on his request, he was permitted to advance his arguments subject to filing vakalatnama during the course of day. He complied the directions.
CC/12/34 4/10[3] It was made clear to Adv.Ajay Pawar that he can address and participate in the proceedings by following the doctrine of non- traverse-meaning thereby that material averments are passed over without specific denial of the opponent. Therefore, averments made in the complaint are taken as admitted. The doctrine of non- traverse has been explained in the case of M.Venkataraman Hebbar (D) By L.Rs. vs. M.Rajgopal Hebbar and ors. - 2007 (5) SCALE 598 by the Hon'ble Apex Court which reads as follows:-
"Thus, if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved.
In spite of clear directions, Adv.Ajay Pawar4 tried to enter upon the facts which remained non-traverse.
[4] Heard learned Adv.Leena Kulkarni for the complainant. Our attention was drawn to the receipts of payment issued by the opponent appearing in the complaint compilation and highlited in the certificate of payment issued by the bank [Bank of India] on 04/03/2014 totaling to Rs.24 lacs as detailed below :-
Sr.No. Pay order No./ Date Amount
cheque no.
1. P.O.No.028861 28.03.2009 10,00,000/-
2. P.O.No.028875 11.04.2009 4,00,000/-
3. P.O.No.029382 08.06.2009 4,00,000/-
4. Cheque No.661704 24.04.2009 1,00,000/-
5. Cheque No.661709 02.06.2009 5,00,000/-
CC/12/34 5/10
Additionally, complainant paid Rs.2,99,000/- towards stamp duty for registration of agreement and the receipt bearing no.2322 dated 20/03/2009 is exhibited in the complaint compilation.
[5] The entire amount paid to the opponent no.1 to 4 through Bank of India by availing advancement of housing loan by the complainant which is duly certified. Constant efforts and legal notices issued to the opponent for reporting progress of the work and date of possession (since scheduled date of possession is already surpassed) went unheard. Therefore, the dispute arose between the parties and this consumer complaint has been filed as submitted by the learned advocate. In support of the alternate prayers for refund of amount as per ready reckoner complainant relies on the document obtained from Sub-Registrar of stamp duty which shows market value at the rate Rs.16,120/- per sq.ft.[carpet area]. However, Mrs.Kulkarni could not satisfactorily address in respect of prayer clause (iii) and (iv), which seeks direction for payment of market value totaling to Rs.55 lacs and also refund of Rs.27 lacs with interest @18% p.a. - amount actually paid to the opponent including Rs.3 lacs on account of stamp duty.
[6] Undisputedly, the possession of the flat has not been handed over and according to the learned advocate Mr.Pawar for the opponents, the project never took off due to various reason. Development agreement executed by the opponent no.5 [deleted] was terminated to appoint opponent no.6 as developer of the project. However, these contentions are not supported by documentary evidence. Mr.Pawar tried to traverse repeatedly into complaint though there is no written version to deny the contents and claim of the complainant. He was given to understand that he can proceed with the matter by following rule of non-traverse since the complaint proceeded ex-parte. Mr.Pawar was given to CC/12/34 6/10 understand that material averments are passed over in absence of specific denial, therefore, they are taken as admitted.
[7] Mr.Ajay Pawar relied on the judgement dated 24/08/2011 in consumer complaint 205/11 pronounced by this State Commission in the matter of Mrs.Ratnprabha Bhudhaji Shinde & ors. Vs. M/s.Vaidehi-Akash Housing Pvt.Ltd. In that matter at the stage of admission, the complaint was rejected as the opponent therein were supposed to carry out development as per development agreement. However, said development agreement was terminated by the co-operative housing society and therefore, the opponents therein could not carry out the construction of the project. Mr.Pawar tried to apply ratio of that case to the case in hand, since according to him, the facts are identical and opponents are the same. In that case, opponents appeared and defended the case based on documents. However, in this case opponents failed to appear and no documentary evidence whatsoever has been led before us to establish that these opponents were appointed as developer under the development agreement by the co-operative society [deleted] and subsequently terminated the development agreement by appointing the opponent no.6. In absence of documentary evidence and due to non-participation of the opponents, the averment made by Mr.Pawar cannot be taken into consideration. Complainant has claimed possession of the flat and express wiliness to settle the balance consideration. Therefore, it caanot be called merely money suit as argued by Mr.Pawar. Hence, ratio of this order is not applicable.
[8] Opponent, who miserably failed to discharge his contractual obligation under the registered development agreement which still subsists, accepted huge amount of Rs.24 lacs through the bankers. Even presuming that project could not be launched for want of CC/12/34 7/10 development authority in favour of the opponent no.1, in that situation, these opponents ought to have taken steps to refund amount of Rs.24 lacs together with interest as per provision in MOFA, 1963. Mr.Pawar during his arguments conceded that such step was not taken. Complainant has discharged his contractual obligations by advancement of Rs.10 lacs as the time of executing agreement and subsequently, made stage wise release of payment through his bankers totaling to Rs.24 lacs. Amount of Rs.2,99,000/- was required to be spent on registration fees and stamp duty for the agreement. Thus, raising the hopes of the complainant to deliver the possession of the flat. Mrs. Kulkarni expressed that complainant is willing and ready to pay balance amount of consideration Rs.16 lacs to obtain the possession of the flat as against the agreed consideration.
[9] In totality opponent no.1 to 4 are deficient and deficiency in service is writ large for their failure. Aversions and claim of the complainant are unchallenged since not opposed by filing the written version. Facts not denied are taken as admitted. Therefore, the defence raised on behalf of the opponent is lame duck and deserves no consideration. The registered agreement, still subsists and is having legal binding force since not cancelled by the opponent by following due procedure.
[10] In view of the above, we are holding that the opponent no.1 to 4 as deficient as privity of contract exists between the parties and registered agreement still subsists as has not been cancelled by following due procedure. We do not find any role of the opponent no.6 except the pleadings in para 5 and 17 in the consumer complaint thereby stating the status of the opponent no.6 and the dispute pending before the court of law between the opponent no.1 and 6. Therefore, we are not inclined to proceed against the CC/12/34 8/10 opponent no.6 since there is no privity of contract between this opponent and the complainant.
[11] While considering the prayers of the complainant, directions for handing over vacant and peaceful possession of the subject flat are sought. Alternatively, for payment of Rs.55 lacs and additionally Rs.27 lacs with interest @18% p.a. and costs for litigation. In so far as prayer for possession is concerned and there is willingness of the complainant to pay for balance consideration as per agreed value, we have to take into account and direct the opponent no.1 to 4 to hand over subject flat or alternatively unencumbered flat of identical carpet area in the vicinity of the project location. However, complainant claims market value and at the same time refund of amount paid which is a misnomer. Mrs.Kulkarni submitted that the complainant has filed documentary evidence to claim market value of the flat by filing letter from the concerned Sub-Registrar of stamp duty for determining the value of the flat and the complainant would prefer to opt for alternative prayer in case the opponents are unable to deliver possession of the subject flat.
[12] In case of failure of the opponents to hand over vacant and peaceful possession of the flat as prayed for, alternatively complainant shall be entitled for payment at market value based on ready reckoner. Ready reckoner is available on record. Total consideration of the flat is Rs.40 lacs. Complainant paid Rs.24 lacs to the opponents. Therefore, proportionate market value equivalent to Rs.24 lacs shall be paid to the complainant. Rate of ready reckoner per sq.ft. (carpet area) is Rs.16,120/-. Area of the flat is 540 sq.ft. for the year 2012-13 i.e.at the filing of the consumer complaint. As per ready reckoner, total value of the flat works out to Rs.87,04,800/-. Complainant paid Rs.24 lacs.CC/12/34 9/10
Therefore, proportionate amount works out to Rs.52,20,000/- to which complainant is entitled for reimbursement. Complainant has also paid Rs.2,99,000/- as stamp duty and registration fees which is not directly paid to the opponents. However, with profound hope of delivery of possession of the flat, complainant spent this amount to register the agreement to sale and end-up with no possession for his no fault. Therefore, complainant is also entitled to receive this money from the opponents for their non- performance of the contractual obligation.
[13] In view of the aforesaid observations, we are inclined to allow the consumer complaint in part holding opponent no.1 to 4 as deficient and proceed to pass the order as follows:-
ORDER
1) We hereby declare opponent no.1 to 4 as deficient in rendering services to the complainant.
2) Consumer complaint is allowed in part with costs quantified to Rs.15,000/-[Rs.Fifteen Thousand only] to be paid by the opponent no.1 to 4 to the complainant.
3) Opponent no.1 to 4 are directed to hand over vacant and peaceful possession of the flat no.201 on the second floor of the Building No.4, by accepting balance consideration of Rs.16 lacs [Rs.Sixteen Lacs only] from the complainant, within a period of 60 days from today to the complainant or hand over alternate encumbered vacant and peaceful possession of the flat of identical size [carpet area] in the vicinity of the project within a period of 60 days from today.
4) Complainant is directed to pay balance consideration of Rs.16 lacs [Rs.Sixteen Lacs only] within a period of 60 days to the opponents and obtain receipt. In case of CC/12/34 10/10 refusal of the said amount, complainant is directed to deposit the same in the office of State Commission within a period of 8 days from such refusal. OR
5) Alternatively, opponent no.1 to 4 are directed to pay Rs.-
52,20,000/- [Rs.Fifty Two Lacs Twenty Thousand only] and Rs.2,99,000/- [Rs.Two Lacs Ninty Nine Thousand only] to the complainant within a period of 60 days from today, failing which interest @9% p.a. shall be payable till realization.
6) One set of the complaint compilation be retained and rest of the sets be returned to the complainant.
7) Copies of the order be furnished to the parties free of cost forthwith Pronounced Dated 28th January, 2016.
[Usha S. Thakare] PRESIDING JUDICIAL MEMBER [Narendra Kawde] MEMBER pg