State Consumer Disputes Redressal Commission
Mr. Sanjay K Jain & Anr. vs A. A. Estates Pvt Ltd & Ors. on 14 February, 2013
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. CC/13/20
1. Mr. Sanjay K Jain
L- 486 AWHO Sector
14, Raghunath Vihar,
Kharghar, Navi
Mumbai - 410210
Thane
Maharashtra
2. Mrs Anjali S Jain
L 486 AWHO, Sector
14, Raghunath Vihar
Kharghar Navi
Mumbai - 410210
...........Complainant(s)
Versus
1. A. A. Estates Pvt Ltd
Developers, Off/AT
RNA Corporate Park, Next To Collectors Office, Kalanagar,
Bandra (East) Mumbai- 400051
Mumbai
Maharashtra
2. Mr. Anubhav Anilkumar Aggarwal
Director of OP No1,
RNA Corporate Office, Kalanagar, Bandra (East)
Mumbai -400 051
Maharashtra
3. Mr Vaibhav
Dy Manager - Sales of OP No 1 Off/at RNA
Corporate Park, Next To Collectors Office, Kalanagar,
Bandra (East)
Mumbai - 400051
4. Mr. Ashok Pujari
Asstt. Manager Sales of OP No 1 Off/at RNA
Corporate Park, Next To Collectors Office Kalanagar,
Bandra (East)
Mumbai 400 051
............Opp.Party(s)
BEFORE:
HON'BLE Mr.Justice S.B.Mhase
PRESIDENT
HON'BLE MR. Narendra Kawde MEMBER
HON'BLE MR. S.B.Sawarkar MEMBER
PRESENT:
Mr.Vijay Badgujar, Advocate
Proxy for Singhania Legal Services, Advocate for
the complainants.
ORDER
Per Justice Mr.S.B. Mhase, Honble President Heard Mr.Vijay Badgujar, Advocate Proxy for Singhania Legal Services, Advocate for the complainants.
2. This is a complaint filed by the complainants through Power of Attorney holder seeking a declaration that opponents are guilty of deficiency in service and unfair trade practice as per provisions of the Consumer Protection Act, 1986 in respect of the flat booked by the complainants and the complainants, therefore, claimed an amount of `19,93,000/-. They further claim an amount of `3,33,187/- by way of interest @ 18% p.a. on the amount of `19,93,000/- from the date of payment till 31/12/2012. By way of harassment and mental agony `10 Lakhs have been claimed and `3 Lakhs have been claimed towards costs of the complaint.
3. The complainants have stated in the complaint that the complainants had booked the flat on 10th floor being flat No.1001, B wing and had paid amount of `5 Lakhs on 20/02/2012 and also paid `5 Lakhs and `12,875/- on 22/02/2012. They had also paid amount of `5,57,178/- on 20/02/2012. On 02/03/2012 they paid `4,12,381/-
to the opponent and thus, according to them they have paid total amount of `19,93,000/-. Now grievance of the complainants is that opponents are not having permission to construct tenth floor and, therefore, they want refund of money. They have stated in the complaint that opponents have misrepresented to the complainants that they have permission to construct the tenth floor and believing their statement complainants had booked the flat and therefore, according to them the opponents have indulged into unfair trade practice. Therefore, they have filed the present complaint.
4. It is to be noted that the complainants are purchasers and therefore, it is their duty to find out whether the opponents/builder have a particular permission to construct the tenth floor. Not only that as per the provisions of Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 while entering into such type of transaction, the complainants are entitled to ask for building permission, commencement of certificate and title deed and the builder is under an obligation to show and supply these documents to the complainants. Therefore, instead of believing in the verbal representation made by the Opponents, the complainants ought to have asked for this information and the documents from the opponents and thereafter they should have parted with the money. Therefore, we cannot see that the complainants while entering into the transaction had taken due diligence in seeing whether opponents are having necessary permission to construct tenth floor.
5. At a later stage, no doubt, it is revealed that the opponents had not having such permission and therefore, they are asking for refund of money. It is their contention that the contract is not enforceable at law on their part and therefore, they are asking for refund of money. What we find that we have to consider the deficiency of services. Here in the present matter, complainants are neither asking for possession nor asking for direction to the opponents/builder to obtain necessary permission and to construct the tenth floor and deliver possession of the flat as per the agreement. On the contrary, they want to rescind the contract and get the money back. Consumer Protection Act, 1986 cannot be used for rescinding the contract or for terminating the contract. We have to consider deficiency of service and try to see that those deficiencies are cured. Even if we see the provisions of Section 14 of Consumer Protection Act, 1986, abundantly it is clear what types of relief we can grant. In the present matter, relief for return of money is claimed for the contract which is not performable and therefore, it is not a consumer dispute. Therefore, we refrain to entertain the complaint. No doubt the complainants may have other alternative remedy in the Civil Court. Therefore, complaint is hereby rejected in limine.
No order as to costs. Copies of the order shall be furnished to the parties.
Pronounced Dated 14th February 2013.
[HON'BLE Mr.Justice S.B.Mhase] PRESIDENT [HON'BLE MR. Narendra Kawde] MEMBER [HON'BLE MR. S.B.Sawarkar] MEMBER dd.