State Consumer Disputes Redressal Commission
Smt.Shilpa Ismail vs Shri Nemchand Chedda, Director Of ... on 21 November, 2007
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI Date of filing : 18/11/1998 CONSUMER COMPLAINT NO. 422 OF 1998 Date of order : 21/11/2007 Smt.Shilpa Ismail thru her Constituted Attorney Shri Mohamed Ismail, R/at B-I, Ferreira-Annex, Sitla Devi Temple Road, Mahim, Mumbai 400 016. Complainant V/s. Shri Nemchand Chedda, Director of M/s.Preet Sonal Investment and Finance Co. Pvt. Ltd., C-4, Big Splash, 1st floor, Sector No.17, Vashi, Navi Mumbai-400 705. Opposite Party Corum : Shri P.N. Kashalkar, Honble Presiding Judicial Member
Smt. S.P. Lale, Honble Member Present: Mr.Umar Kazi, Advocate for the complainant.
Mr.Khan, Advocate for the O.P.
- : ORDER :-
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member This complaint is filed by Smt.Shilpa Ismail through Her Constituted Attorney Shri Mohamed Ismail against the builder/developer Shri Nemchand Chedda, Director of M/s.Preet Sonal Investment and Finance Co. Pvt. Ltd. of Navi Mumbai alleging deficiency in service on the part of O.P. She pleaded that O.P. is the builder and developer and carrying out construction activities in the name and style of M/s.Preet Sonal Investment and Finance Co. Pvt. Ltd. in Navi Mumbai. The O.P. was to construct building Nos.24, 25, 26 at Sector 15, C.B.D. Belapur, Navi Mumbai in the name and style of Oceanic Terraces.
In 1995, she booked a flat in the above Project No.C-71 admeasuring 1000 sq.ft. approximately. The O.P. subsequently changed her flat to B-602 without her consent for lumpsum consideration of Rs.20 Lakhs. The complainant initially paid Rs.2 Lakhs by cheque and O.P. confirmed having received the same amount of Rs.2 Lakhs by letter dated 09/02/1995. The O.P. then by letter dated 09/02/1995 further demanded Rs.10 Lakhs from the complainant within period of 10 days to confirm booking of the flat and promised to issue allotment letter after receipt of said Rs.10 Lakhs. The complainant was working in Prime Broking Co. Ltd., Lower Parel, Mumbai. She applied for loan of Rs.11,50,000/-. The aforesaid Company granted loan of Rs.10,40,000/-. The Company informed the complainant that since the builder has requested for sum of Rs.10 Lakhs, the Company therefore sent a cheque bearing No.201062 dated 24/02/1995 for sum of Rs.10 Lakhs in favour of the O.P. Xerox copy of the cheque is attached to the complaint. The complainant had to execute relevant documents in favour of her Employer/Company in order to secure her loan. The O.P. by its letter dated 01/03/1995 confirmed having received the said amount of Rs.10 Lakhs. In the said letter he confirmed that till the date he had received amount of Rs.12 Lakhs from the complainant. The O.P. promised to send detailed allotment letter. So far the complainant had not received the same. The complainant pleads that with malafide intentions the O.P. failed and neglected to execute an Agreement of Sale, which is normal practice even after receipt of Rs.12 Lakhs. The complainant had visited the site as promised by the builder, but there was no construction activity in progress. Even after 3 years, she did not find any reasonable progress in the construction. She was disappointed to observe that the construction of the building by O.P. was yet to commence though she was promised by O.P. that the Project would be completed as early as possible. Ultimately on 10/10/1998, she sent a letter through her Advocate Mr.Umer Kazi, which is at Annexure-6. The O.P. received her Advocates letter and acknowledged receipt of the same. Despite receipt of letter, O.P. failed and neglected to reply her Advocates letter. She pleaded that in this fashion, more than 100 poor purchasers have been duped of their lifetime savings. Under the circumstances, the complainant pleads that O.P. has no intention to give possession of the said flat as agreed within stipulated time and therefore she asked for refund of Rs.12 Lakhs with interest @ 12% p.a. till filing of the complaint and also demanded amount of Rs.1 Lakh towards compensation for mental agony. She has given cheque numbers and amount in Para 13 of the complaint and prayed for passing of award.
The O.P. filed written statement and generally denied all the allegations made by the complainant and tried to lay blame on the CIDCO of Navi Mumbai, the Government Authority, who is in the development activity of city at Navi Mumbai. According to the O.P., CIDCO had promised them to give certain plots, but they backed up their promise and therefore O.P. had invoked jurisdiction of Section 11 of Arbitration and Conciliation Act, 1996 and approached the Honble High Court for appointing Arbitrator to resolve the dispute between O.P. and CIDCO. That Petition is pending in the High Court. The O.P. has pleaded that because of unfair trade practice committed by the CIDCO they could not complete the construction within time. Then O.P. pleaded that some lesser area of land has been given by the CIDCO and they had formed Committee of purchasers under whose guidance the Project floated by the O.P. would be completed. They pleaded that they were not liable to return the money with interest to the complainant. The O.P. further pleaded that within one or two months, Plans would be approved by the Navi Mumbai Municipal Corporation and as soon as they get approval, O.P. would start the construction of the flats and complete the same within reasonable time. It pleaded that since now the project would be handled by the Committee of purchasers of the Oceanic Terraces, the construction would be completed and complainant would be in a position to get possession of the flat booked by her in the said Project. The O.P. further pleaded that due to the reasons beyond the control of the O.P. they could not give possession of the flat to the complainant.
On the basis of these pleadings, we thought it fit to place this matter before the Lok Adalat, but it was found that the parties were not in a mood to compromise. Hence on 26//09/2007 the matter was heard. We heard Advocate Mr.Umar Kazi for the complainant and Advocate Mr.Khan for the O.P. The following points would arise for our determination. The points and our findings thereon are as under :-
POINTS FINDINGS
1. Does complainant prove that she booked a flat Yes in the Project of O.P. and paid Rs.12 Lakhs as per cheques and despite payment of Rs.12 Lakhs O.P. has not till filing of the complaint completed the Project and given possession of her flat she had booked?
2. Whether O.P. is guilty of deficiency in service, even Yes on the point of execution of Agreement in her favour though O.P. had received amount of Rs.12 Lakhs?
3. What amount of compensation the complainant is As per final order.
entitled to ?
REASONS The complainant has filed affidavit in evidence, various letters and correspondence on 17/08/2001. The O.P. has also filed affidavit in evidence of Mr.Nemchand Chheda on 06/03/2001 and documents have also been placed on record by the O.P. Looking to the letters placed on record, we are fully convinced that this is a clear-cut case of deficiency in service on the part of the builder. Letters at Exhibit-1to6 clearly point out that the complainant has paid total amount of Rs.12 Lakhs by cheques and this fact has been confirmed by M/s.Preet Sonal Investment & Finance Co. Pvt. Ltd. through its Director by sending letter at Annexure-5 dated 01/03/1995. Despite receipt of this amount and despite receipt of Advocates Notice at Annexure-6 dated 10/10/1998 no steps have been taken by the O.P. to hand over possession of the flat or to refund the amount. Moreover, what is surprising is the fact that even the construction was not started till the complainant approached this Commission by filing this complaint. Even on 26/09/2007 it was not the case of Advocate Mr.Khan that his client has constructed the flat and they are ready to give possession of the same. What is pertinent to note the fact that despite receipt of payment of Rs.12 Lakhs, O.P. has not executed Agreement for Sale of flat in favour of the complainant. This, itself is a statutory deficiency of service on the part of O.P. besides contractual obligations to perform under the contract. Under Section 4 of the Maharashtra Ownership Flats Act, 1963 on receipt of nearly 20% of total cost of flat, O.P./builder is duty bound to executive Agreement of Sale in favour of flat purchaser and then only to accept remainder amount of consideration. This statutory provision contained in the Maharashtra Ownership Flats Act, 1963 is also violated in a brazen manner by the O.P. There is no dispute that the amount of Rs.12 Lakhs has been received by the O.P. and till today O.P. has not informed that he is in a position to give the flat to the complainant. So, ex facie there is deficiency in service on the part of O.P. in not starting construction and leave alone to give possession of the flat booked by the complainant to her and he is utilizing the huge amount of Rs.12 Lakhs paid by the complainant to his Company long back. Therefore this is a fit case wherein the award has to be passed to give refund of amount of Rs.12 Lakhs with interest @ 10% p.a. We are also of the view that the O.P. is liable to pay compensation of Rs.1 Lakh reasonably demanded by the complainant in her complaint. In fact, we would have awarded far more compensation for mental agony and harassment the complainant has suffered because of non-performance of obligations by the O.P. But, then the complainant restricted her claim of compensation at Rs.1 Lakh and therefore, we find it just and reasonable in the circumstances obtainable. We therefore record our finding on Point Nos.1&2 in affirmative and pass the following order :-
-: ORDER :-
1.
Complaint is allowed.
2. O.P. is directed to refund amount of Rs.12 Lakhs to the complainant with interest @ 10% p.a. from the date of respective payments till the realization of entire amount.
3. O.P. is further directed to pay Rs.1 Lakh as compensation to the complainant for mental agony and harassment the complainant was subjected to for non-performance of statutory as well as contractual obligations.
4. O.P. is further directed to pay Rs.10,000/- to the complainant towards cost of this complaint and bear its own cost.
5. This order shall be complied with within a month from the date of receipt of the order.
6. Copies of the order be furnished to the parties.
(S. P. Lale) (P.N. Kashalkar) Member Presiding Judicial Member dd.