State Consumer Disputes Redressal Commission
Mr. Anilkumar Menghraj Valecha vs M/S K D Builders on 13 July, 2022
CC/16/879
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Complaint No.CC/16/879
1. MR.ANILKUMAR MENGHRAJ VALECHA,
2. MRS.KIRAN ANILKUMAR VALECHA,
Both residing at B 501, Nestle Apartment,
Opposite Goregaon Sports Club,
Link Road, Malad (West),
Mumbai. ....... Complainant(s)
Versus
M/s.K.D. BUILDERS,
Through its Sole Proprietor Mr.Deepak Pandurang
Pawar for M/s.S.K. Builder,
Having office at:
001/A, Building No.3, Om Elegance,
Opp.Infant Jesus School,
Chincholi Bunder Road, Malad West,
Mumbai 400 064. .......Opponent(s)
BEFORE:
Mr.Justice S.P. Tavade - President
Ms.S.T. Barne - Judicial Member
For the Complainant(s) : Advocate Vinod Kumar Chabla
For the Opponent(s) : None.
ORDER
th
(13 July 2022)
Per Hon'ble Mr.Justice S.P. Tavade - President:
(1) The complainants were in need of accommodation. Hence, they contacted opponent. The opponent had started his project in the name and style as „Deepak Heights‟ on Plot bearing CTS No.227/15, 402 and 403 of Village 1 CC/16/879 Malad (South) at Malad West, Mumbai 400 064. Complainants contacted opponent and decided to book flat in the project of the opponent. The opponent issued allotment letter in favour of the complainants in respect of Flat No.504 on 5th floor, area admeasuring 690.62 sq.ft. Carpet in the proposed and prospective project named as "Deepak Heights". The complainants paid Rs.2,00,000/- to opponent by way of cheque. Thereafter, the complainant paid Rs.8,00,000/- and Rs.13,08,800/- by way of cheques drawn on Union Bank of India, Goregaon (East) Branch and thus, the complainants paid total amount of Rs.23,08,800/- to the opponent. It is contended that the total consideration of the Flat was Rs.76,96,000/- which was agreed between the complainants and opponent and that the complainants would pay remaining amount of consideration of Rs.53,87,200/- as per schedule reflected in the allotment letter. The complainants also agreed to pay interest @21% per annum in case of delay in payment of instalments. It was agreed that the opponent would complete the project within three years from the date of agreement and handover possession of the booked flat to the complainants. The complainants used to make enquiry with the opponent regarding progress of the project, but, there was no progress. Hence, the complainants visited site of the project and found that the work of construction was not started. Hence, the complainants met opponent in order to know the reason for inordinate delay. But, the opponent always prolonging the matter with one reason or the other. Ultimately, the complainants came to know that the opponent had given fake and false promises one after another. Hence, they demanded refund of their amount along with interest @21% per annum. The complainants contended that, the opponent is intentionally, willingly and deliberately prolonging the project in order to achieve wrongful gain and to cause wrongful loss to the complainants. It is contended that, the Complainants had met opponent and shown their willingness to continue in the project in question with the same terms qua agreed value, specifications and dimensions, provided, if the opponent agreed and consented to pay rent to 2 CC/16/879 the tune of Rs.6,00,000/- for 20 months from January, 2015 to August, 2016 with alternate arrangement of accommodation or to pay rent with 10% enhance after one year till completion and delivery of possession of the booked flat. But, the opponent failed to fulfil the said promise. Due to the acts of the opponent, the complainant no.1 was disturbed. He developed acute diabetes and mental stress. Hence, complainants have filed this complaint.
(2) The complaint was admitted and notice was issued and it was duly served to the opponent, but, opponent remained absent. Hence, the complaint proceeded ex-parte against the opponent. The complainants filed affidavit of evidence and produced the documents on record.
(3) On going through the complaint, evidence on record and documents, it appears that the complainants had booked a Flat No.504 on 5th floor, area admeasuring 690.62 sq.ft. Carpet in proposed and prospective project viz. „Deepak Heights‟ on Plot bearing CTS No.227/15, 402 and 403 of Village Malad (South) at Malad West, Mumbai 400 064. The said project was of the opponent. The opponent had issued allotment letter dated 19/12/2011, which is at page No.C/18 of the complaint compilation in favour of the complainants. On the basis of the said letter the complainants had paid amount of Rs.2,00,000/- by way of Cheque No.026794, dated 03/11/2011 to opponent. Thereafter complainants had paid Rs.8,00,000/- by way of Cheque No.026795, dated 05/12/2011 and Rs.13,08,800/- by way of Cheque No.026796, dated 19/12/2011 drawn on Union Bank of India, Goregaon (East) Branch to the opponent. Thus, the complainants paid total consideration amount of Rs.23,08,800/-. The complainants have produced on record copies of the cheques issued in favour of the opponent, similarly, the bank statement showing the payment made to the opponent to the extent of Rs.23,08,800/-. The complainants have also produced on record allotment letter wherein the schedule of payment is given. The complainants were 3 CC/16/879 agreed to the said conditions.
(4) It is averred by complainant no.1 that there was delay in construction.
Therefore, he visited the site and came to know that the project was not continued by the opponent. Hence, the complainants met opponent and made enquiry about the project. Opponent gave false and vague reasons for delay in the project. Hence, the complainants demanded refund of money or alternate accommodation. But, the opponent failed to repay the amount as well as failed to give possession of the flat booked. It is also proved by the complainants that the opponent had agreed to pay rent of Rs.30,000/- per month for twenty months. But, said promise was also not fulfilled by the opponent. Hence, the complainants had issued notice dated 25/07/2016 through Advocate calling upon the opponent to refund the amount paid to it. But, opponent failed to repay the amount. The complainants have proved that they have booked Flat No.504 on 5th floor, area admeasuring 690.62 sq.ft. Carpet in proposed and prospective project viz „Deepak Heights‟ on Plot bearing CTS No.227/15, 402 and 403 of Village Malad (South) at Malad West, Mumbai 400 064. Opponent had issued allotment letter which shows that the opponent had received part consideration of Rs.23,08,800/- from the complainants by way of cheques. The opponent failed to provide booked flat to the complainants and also failed to refund the amount received. Therefore, the opponent is guilty of deficiency in service as well as unfair trade practice. Opponent is also guilty for beach of provisions of MOFA for not executing the Agreement for Sale and not handing over possession of the booked flat. Therefore, we proceed to pass the following order.
ORDER
(i) Complaint is hereby partly allowed.
(ii) It is hereby declared that the opponent has indulged in deficiency in service as well as unfair trade practice as per provisions under the 4 CC/16/879 Consumer Protection Act, 1986.
(iii) Opponent is hereby directed to execute Sale Agreement in favour of the complainants and handover possession of Flat No.504 on 5th floor, area admeasuring 690.62 sq.ft. Carpet in proposed and prospective project viz „Deepak Heights‟ on Plot bearing CTS No.227/15, 402 and 403 of Village Malad (South) at Malad West, Mumbai 400 064, after receipt of balance consideration from the complainants within a period of six months from the date of this order;
In the alternative, at the option of the complainants, the opponent is hereby directed to handover possession of another flat of same size in any other project of the opponent after payment of balance consideration.
In the alternative, the opponent is hereby directed to refund to the complainants the amount of Rs.23,08,800/- along with interest @12% per annum from the date of receipt of respective payment.
(iv) Opponent is further directed to pay to the complainants amount of Rs.3,00,000/- by way of compensation for mental agony and physical harassment and Rs.25,000/- towards costs of litigation.
(v) Copies of this order be furnished to the parties.
[Justice S.P. Tavade] President [Ms.S.T. Barne] Judicial Member emp 5