National Consumer Disputes Redressal
M/S. Kay Jay Construction Co. Pvt. Ltd. vs Daulat Alwani on 4 May, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 153 OF 2015 (Against the Order dated 23/01/2015 in Complaint No. 17/2014 of the State Commission Goa) WITH IA/1381/2015,IA/1473/2015,IA/3900/2016 1. M/S. KAY JAY CONSTRUCTION CO. PVT. LTD. THROUGH ITS MANAGING DIRECTOR, MR. HARESH KOTWANI, NO. 5, NATIONAL HOUSE, 27, RAGHUNATH DADJEE STREET, FORT, MUMBAI-400001 MAHARASHTRA ...........Appellant(s) Versus 1. DAULAT ALWANI 301, 8/F EVERWELL GARDENS, 1 SHEUNG HONG ST. HOMITIN, KIN, KON-KONG, THROUGH MR. NANDU ASRANI, SPENCER CROSS ROAD, BLOOMSBURY APARTMENTS, FRAZER TOWN, BANGALORE ...........Respondent(s) FIRST APPEAL NO. 154 OF 2015 (Against the Order dated 23/01/2015 in Complaint No. 18/2014 of the State Commission Goa) WITH
IA/1381/2015,IA/1473/2015,IA/3900/2016 1. M/S. KAY JAY CONSTRUCTION CO. PVT. LTD. THROUGH ITS MANAGING DIRECTOR, MR. HARESH KOTWANI, NO. 5, NATIONAL HOUSE, 27, RAGHUNATH DADJEE STREET, FORT, MUMBAI-400001 ...........Appellant(s) Versus 1. RAMESH MELWANI UNIT B, 27TH FLOOR, BLOCK-2, ELEGANT TERRACE, NO. 36, CONDUIT ROAD, MID LEVELS HONG KONG THROUGH MR. NANDU ASRANI, SPENCER CROSS ROAD, BLOOMSBURY APARTMENTS, FRAZER TOWN, BANGALORE ...........Respondent(s) FIRST APPEAL NO. 155 OF 2015 (Against the Order dated 23/01/2015 in Complaint No. 19/2014 of the State Commission Goa) WITH IA/1381/2015,IA/1473/2015,IA/3900/2016 1. M/S. KAY JAY CONSTRUCTION CO. PVT. LTD. THROUGH ITS MANAGING DIRECTOR, MR. HARESH KOTWANI, NO. 5, NATIONAL HOUSE, 27, RAGHUNATH DADAJEE STREET, FORT, MUMBAI-400001 ...........Appellant(s) Versus 1. VINOD TALREJA VILLA 21-A, STRRET 2 HATTAN, 3 EMIRATES HILLS, DUBAI, U.A.E. THROUGH NANDU ASRANI, SPENCER CROSS ROAD, BLOOMSBURY APARTMENTS, FRAZER TOWN, BANGALORE ...........Respondent(s) FIRST APPEAL NO. 156 OF 2015 (Against the Order dated 23/01/2015 in Complaint No. 20/2014 of the State Commission Goa) WITH IA/1381/2015,IA/1473/2015,IA/3900/2016 1. M/S. KAY JAY CONSTRUCTION CO. PVT. LTD. THROUGH ITS MANAGING DIRECTOR, MR. HARESH KOTWANI, NO. 5, NATIONAL HOUSE, 27TH RAGHUNATH DADAJEE STREET FORT, MUMBAI-400001 ...........Appellant(s) Versus 1. LAKHPAT KALWANI 301 AL SAFA BUILDING, BUR DUBAI, UNITED ARAB EMIRATES, THROUGH MR. NANDU ASRANI, SPENCER CROSS ROAD, BLOOMSBURY APARTMENTS, FRAZER TOWN, BANGALORE ...........Respondent(s) FIRST APPEAL NO. 157 OF 2015 (Against the Order dated 23/01/2015 in Complaint No. 21/2014 of the State Commission Goa) WITH IA/1381/2015,IA/1473/2015,IA/3900/2016 1. M/S. KAY JAY CONSTRUCTION CO. PVT. LTD. THROUGH ITS MANAGING DIRECTOR, MR. HARESH KOTWANI, NO. 5, NATIONAL HOUSE, 27, RAGHUNATH DADAJEE STREET, FORT, MUMBAI-400001 ...........Appellant(s) Versus 1. RAMESH MOORJANI 502, ADCB RESIDENTIAL BUILDING, BUR DUBAI, DUBAI, UNITED ARAB EMIRATES, THROUGH MR. NANDU ASRANI, SPENCER CROSS ROAD, BLOOMSBURY APARTMNENTS, FRAZER TOWN, BANGALORE ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON'BLE MR. PREM NARAIN, MEMBER For the Appellant : Mr. Amar Dave, Mr. Rohan Dheman & Mr. Ashish Virmani, Advocates For the Respondent : Mr. Hari, Mr. Sanjeev Tyagi & Mr. Praveen Bhatia, Advocate Dated : 04 May 2016 ORDER PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER All these appeals arise out of single order of State Commission involving common question of law; hence, decided by common order.
2. These appeals have been filed by the appellant against the order dated 23.1.2015 passed by the Goa State Consumer Disputes Redressal Commission, Panaji (in short "the State Commission) in CC No. 17 to 21 of 2014 - M/s. Kay Jay Construction Co. Ltd. Vs. Daulat Alwani, M/s. Kay Jay Construction Co. Ltd. Vs. Ramesh Melwani, M/s. Kay Jay Construction Co. Ltd. Vs. Vinod Talreja, M/s. Kay Jay Construction Co. Ltd. Vs. Lekhpat Kalwani & M/s. Kay Jay Construction Co. Ltd. Vs. Ramesh Moorjani by which, complaints were partly allowed.
3. Brief facts of the case are those complainant/respondent were allotted flats by OP/appellant on different dates at different sale price as shown below:
CC No. & name of complainant Dates of Power of attorney Flat Nos.
Date of letters of allotment Amount paid Date of receipts Date of legal notices CC17/14 Daulat Alwani 5/6/12 C-11 4/1/07 18,49,650 1,30,000 35,000 5,000 19/3/09 15/1/14 CC18/14 Ramesh Melwani 19/6/12 B-24 13/12/06 24,39,558 2,60,000 40,000 19/3/09 15/1/14 CC 19/14 Vinod Talreja 14/6/12 C-12 06/10/07 22,40,700 65,000 40,000 25,000 19/3/09 15/1/14 CC20/14 Lakhpat Kalwani 30/5/12 A-13 13/12/06 18,59,102 65,000 35,000 19/3/09 15/1/14 CC21/14 Ramesh Moorjani 30/5/12 A-11 25/3/07 12,36,470 40,000 25,000 1,00,000 19/3/09 15/1/14
4. Inspite of payment of sale price, OP failed to deliver possession in time as executed between the parties. Alleging deficiency on the part of OP, complainants filed separate complaints with prayer that OP may be directed to deliver possession of allotted flat with occupancy/completion certificate and to execute sale deed transferring flat along with proportionate undivided rights in the land in the property of Joia Do Mar Project and further asked payment of interest and compensation. OP resisted complaints and submitted that flats were completed in the year 2008 and complainants were asked to take possession, but they did not take possession. It was further submitted that complainants are not consumer and they invested money in the flats for earning profits. Complainants are living abroad. It was further submitted that complaints are barred by limitation and OP never sold flat along with proportionate undivided rights in the land. It was further submitted that some amount was still outstanding with the complainants and there was no deficiency on their part and prayed for dismissal of complaint. During pendency of complaints, possession of flats was handed over to complainants by OP on 8.11.2014. Learned State Commission after hearing both the parties allowed complaints and directed OP to execute sale deed with proportionate undivided rights in the said property surveyed under No. 362/12 at Calangute against which, these appeals have been filed.
5. Heard learned Counsel for the parties finally at admission stage and perused record.
6. Learned Counsel for the appellant submitted that inspite proof that complainants do not fall within purview of consumer and inspite of complaints being barred by limitation and inspite of no agreement for transferring proportionate land of the flat, learned State Commission committed error in allowing complaints; hence, appeals be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, appeals be dismissed.
7. Learned Counsel for the appellant submitted that learned State Commission observed in its order that complainants purchased apartments not for their own use or residence, but for re-sale as a matter of investment to earn profits and; so, they are not consumers, but in the light of observations made in para 8 of the judgment observed that by handing over possession of the apartments, OP has waived such an objection. Perusal of record reveals that apartments were booked in the year 2006-07 and on the basis of e-mail communication dated 27.10.2010 by Complainant Ramesh Melwani, email communication dated 12.5.2011 by complainant Vinod Talreja and e-mail communication dated 26.8.2011 by complainant Ramesh Moorjani it was observed that complainant had not booked apartments for their residence, but it was investment for earning profits. Learned Counsel for the appellant has not brought to our notice any such e-mail communication by complainant Daulat Alawani and Lakhpat Kalwani and in such circumstances, there is nothing on record to prove that Daulat Alwani and Lakhpat Kalwani booked apartments as investment for earning profits. As far e-mail communication by Mr. Ramesh Melwani is concerned, he only wanted to know current market price of the apartment after 3 years of booking and possession was to be handed over in the year 2008. A person can certainly sell property after his purchase if it does not suit him and merely by enquiring current market price of the apartment for the purpose of sale it does not amount booking of apartment for commercial purposes. No doubt, this communication has not been made by complainant Ramesh Melwani to OP, but has been made to Kush Kotwani in which he has stated that at the time of purchasing apartment he explained to Mr. Ramesh and Mr. Nandu that his intention was only for investment purposes and only on this basis, it cannot be presumed that booking of apartment was for earning profit. In the same way, email communication dated 12.5.2011 by Mr. Vinod Talreja reveals that he intended to sell apartment after 3½ years and asked for quoting price to OP by which it cannot be inferred that apartment was booked for investment purposes. As far e-mail communication dated 26.8.2011 by Mr. Ramesh Moorjani it can be inferred that he bought apartment to make money and even after 4 years he did not find headway or profit. Learned Counsel for the appellant has placed reliance on judgment of Hon'ble Apex Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute - (1995) 3 SCC 583, Birla Technologies ltd. Vs. Neutral Glass & Allied Industries Ltd. - (2011) 1 SCC 525 in which it was held that if a person has bought goods for commercial purpose, he does not fall within purview of consumer. We agree with the law laid down in the aforesaid cases, but except to the case of Ramesh Moorjani. Cases of other complainants are not covered under the expression goods purchased for commercial purposes. Learned Counsel for the appellant has also drawn our attention towards e-mail communication between authorized representative Mr. Nandu Asrani and OP before 2012 to prove that investment was made for commercial purpose and OP offered possession in the year 2008 itself. Admittedly, power of attorney has been executed by complainants in favour of Mr. Nandu Asrani in the year 2012 and if any communication was made between OP and Mr. Nandu Asrani before receiving power of attorney that communication does not bind to the complainants because whatever transpired between Mr. Nandu Asrani and OP was no communication made by Mr. Nandu Asrani on behalf of the complainants. Learned State Commission rightly observed that as possession was given by OP to the complainants on 8.11.2014 during pendency of complaints, objection of OP stands waived. When learned State Commission asked Counsel for OP whether OP would be interested in taking back possession of the apartment if OP's contention regarding complainant not consumer is upheld, learned Counsel for OP has not shown any interest in taking back possession rather submitted that possession was offered in the year 2008 meaning thereby during pendency of complaint OP has accepted part prayer of the complainant, learned State Commission has not committed any error in holding complaint maintainable before Consumer Fora.
8. Learned Counsel for the appellant has placed reliance on judgment of Hon'ble Apex Court in Aurohill Global Commodities Ltd. Vs. Maharashtra STC Ltd. - (2007) 7 SCC 120 in which it was observed that there can be no waiver of right unless the person who is said to have waived is fully informed as to his rights and with full knowledge about the same he intentionally abandons them. It was further observed that question of waiver would not arise against a person who is not a party to the case. We agree with the law laid down by Hon'ble Apex Court, but it does not help to the appellant as appellant consciously handed over possession of apartments to the complainants even after taking objection in written statement and thus waived its objection regarding non-maintainability of complaint before learned State Commission.
9. Learned Counsel for the appellant further submitted that complaints were barred by limitation; even then, learned State Commission committed error in allowing complaints. In support of his contentions he has placed reliance on judgment of Hon'ble Apex Court in (2009) 5 SCC 121 - State Bank of India Vs. B.S. Agriculture Industries (I) in which it was held that if complaint is barred by time, yet decided on merits, the Forum would be committing an illegality. We agree with the law laid down in aforesaid case, but it does not help to the complainants. In the case in hand, possession was to be handed over long back, but possession was not handed over till filing of complaints and nothing on record to suggest that OP any time apprised the complainants to take possession of apartment and possession was handed over during pendency of complaints before learned State Commission. Limitation continues till receiving possession of booked apartment and in such circumstances, complaints were within limitation and learned State Commission has not committed any error in allowing complaints.
10. Learned Counsel for the appellant submitted that inspite of no agreement for transferring proportionate land of the apartment, learned State Commission committed error in directing OPs to execute sale deed with proportionate undivided rights in the land. Learned Counsel for the appellant admitted that except allotment letters no buyer agreements were executed between the parties. Perusal of letter of allotment reveals that particular apartment was allotted by OP to the complainant for a particular consideration in which it was stated that sale deeds and registration can be executed on mutual convenience time alternatively at the time of possession. These allotment letters do not reflect that super structure was sold without proportionate rights in land. Learned Counsel for the appellant has drawn our attention towards other State Apartment Ownership Act which include percentage of undivided interest of each apartment owner in common area facility and land of the building and at the same time has also drawn our attention towards proposed Goa Real Estate (Promotion, Control and Development) Bill 2010 in which owner has been defined as owner of apartment having undivided interest in common areas and facilities and land. He submitted that as this Act has so far not been passed in Goa; so, complainants are not entitled to proportionate right in land of the apartments. This argument is devoid of force because an apartment cannot be without land and once apartment has been sold it includes proportionate right in the land of apartment and common facility area because if proportionate right in land are not given to the apartment owners and if whole building collapses, apartment owners will be left with no remedy of reconstruction as land of apartment stands vested in the owner of land which may not be permitted. Learned State Commission has not committed any error in passing impugned order.
11. In the light of aforesaid discussion, we do not find any illegality in the impugned order and all appeals are liable to be dismissed.
12. Consequently, Appeals filed by the appellants against the order dated 23.1.2015 passed by the learned State Commission in CC No. 17 to 21 of 2014 - M/s. Kay Jay Construction Co. Ltd. Vs. Daulat Alwani, M/s. Kay Jay Construction Co. Ltd. Vs. Ramesh Melwani, M/s. Kay Jay Construction Co. Ltd. Vs. Vinod Talreja, M/s. Kay Jay Construction Co. Ltd. Vs. Lekhpat Kalwani & M/s. Kay Jay Construction Co. Ltd. Vs. Ramesh Moorjani are dismissed with no order as to costs.
......................J K.S. CHAUDHARI PRESIDING MEMBER ...................... PREM NARAIN MEMBER