PRESENT

          Complainant in person.                                                           

         Opponent Absent.  

                                      ORDER

(Per- Mr. S. D. MADAKE, Hon’ble President. )

1. Complainants have filed present complaint for declaration that the opposite party for Unfair Trade practices and violation of terms and conditions of contract, for refund of amount and compensation.
2. Brief facts of the complaint are summarized as under –

In January, 2009 MH & AD Board the advertisement in newspaper for allotment of 3863 tenements in different parts of Greater Mumbai for various types of categories. Applications were invited. Complainant made an application for allotment of a flat in High Income Group (HIG) under reserved category of “Ex” (Ex-Serviceman) plan code 237 for location VERSOVA ANDHERI (WEST). After scrutinized all documents MH & AD Board issued a provisional offer letter to applicant (i.e. Complainant No. 2, ) on 21/11/2009.

3. It is case of complainant that as per procedure towards payment of cost of flat, the allottee is required to make payment as under (total cost of allotted flat in this case is Rs. 56,24,000/-).

1. 25% within 30 days from date of POL (Provisional Offer Date). In this case from 21/11/2009 to 20/12/2009 Allottee (i.e. Complainant) paid this amount of Rs. 14,06,000/- on 25/11/2009.
2. Bank had sanctioned the loan of Rs. 34,00,000/- in principle to the complainant.
3. 75% cost of flat i.e. Rs. 42,18,000/- was to be paid within go days from the date of Provisional Offer Date i.e. 21/11/2009 to 18/02/2010. Allottee (i.e. Complainant) decided to raise / arrange it as under:

1. Rs. 34,00,000/- lump sum from bank by 15^th February 2010.
2. Rs. 8,18,000/- under own arrangement (Demand draft for this was made on 09/10 February 2010 to be deposited with designated bank account of MH & AD Board. 

4. It is case of complainants that, having prepared the D. D. for Rs. 8,18,000/- and presented to marketing cell on 10/02/2010 for endorsement on challan of designated bank account the endorsing clerk (code 237) refused to endorse the same saying the Provisional Offer Date issued is on hold for eligibility of allottees for reserved category Ex-Serviceman (Ex.). Home Loan lending bank has informed to complainant that on visit of their official to marketing department for verification of Provisional Offer Date and NOC he was informed that allotment is under dispute and Provisional Offer Date may get cancelled or words to that effect. Bank on their past has asked for the clearance from MH & AD Board / Marketing Department to issue of sanctioned loan amount of Rs. 34,00,000/-.
5. It is case of complainants that, MH & AD Board issued a show cause notice to complainants dated 16/02/2010. Complainants submitted their reply to show cause notice on 02/03/2010 debating the misconception on the issue by marketing department complainants also pleaded for resultant delay being caused towards payment cost of flat and seeking additional period for this process.
6.  In the meantime complainants have made numerous correspondence to marketing department requesting clearance, NOC to bankers which went unheard, not to mention of various in person visits of various concerned officers. The issue mentioned in show cause notice kept hearing till end of June 2010 for reasons best known to opposite party. Finally, Chief Officer Mumbai board cleared the eligibility of allottee. However, marketing Department issued fresh No Objection Certificate (NOC) to Bankers only on 15/07/2010.
7.  Thus as per the Information contained in Information Boucher, to NOC for application to Home Loan is issued on allottees having paid 25% consideration. The period of payment of this sum is 30 days from Date of Provisional Offer Date and total period is 90 days, logically 60 days thereafter (i.e. from Date of NOC).
8.  In this manner in the present case as NOC was delayed till 15^th July 2010 and earlier NOC was nullified by Marketing Department due to hold on Home Loan processing and payment. In that event it is but fair and natural that 60 days from 15^th July 2010 is mandatory for allottees to make payment of remaining 75% of cost of flat (i.e. 15^th July 2010 to 12^th September 2010).
9. It is case of complainant that, as fresh NOC issued on 15^th July 2010, necessitate reprocessing the application afresh including fresh charges required to be paid for this by applicant. Complainants were thus forced by Opposite Party to incur this additional charges.
10.  However, complainants hasten up this proceeding and arranged for payment of Rs. 34,00,000/- on 23/08/2010 much before the logical target date. The marketing department / MH & AD Board issued a memo dated 09/09/2010 raising a demand for payment of Rs. 2,36,019/- as interest for delayed payment beyond 90 days from the date of Provisional Offer Date i.e. 21/11/2009, which comes by 18/02/2010 onward. Complainants paid the sum under protest with Direct Marketing on 13/09/2010.
11.  Allotment letter and Possession Letter were issued and the allottee thereafter took possession of allotted that. Thus the act on the part of MH & AD Board. Marketing Department is illegal, unjustifiable and cannot sustain the test of reasons. Allottees were forced this interest amount for no fault of theirs.
12.  Complainants thereafter had visit to Director Marketing in person and explained to him futility and illegality of levy of this interest amount. The expressed this helplessness saying he has no power to waive off the interest and advised complainants to make an application to higher authorities. Accordingly, complainants made an application dated 18/11/2010 addressed to higher authority of MH & AD Board. More than one year has gone but no action seems to have been taken by the concerned department and higher authorities.  Hence present complaint for declaration, refund the amount of Rs. 2,36,019 and compensation.
13. Opposite party, resisted the claim of complainant and submitted that the complainant is not entitled to claim the reliefs as claimed by him for simple reason that the flat in question is allotted to one Mr. Sursh Sudam Nemane and hence, this opposite party fails to understand that as to what cause of action has accrued in favour of the complainant No. 1.
14. Opposite party admitted that after the cancellation of Provisional Allotment Letter dated 21/11/2009, Complainant No. 2 was declared as eligible by Appellate Authority. As per rule, Complainant and ought to have paid the balance amount of 75% within 90 days, but he has not paid thus the MH & AD Board has rightly levied the interest charges on the Complainant No. 2.
15. Opposite Party submits that, the MH & AD Board published in newspaper for allotment of 3863 tenements. If this being so, then in that event the complainant ought to have been filed against the board and this opposite party. Hence the present complaint is not maintainable for want of necessary and proper party to this complaint.
16. Opposite Party submits that, complainant has paid 25% of the cost of said flat within stipulated period i.e. one month from the date of issue of provisional offer letter. However, the remaining 75% amount of the said flat is not paid within 90 days from the date of issuance of the provisional Allotment Letter and which is delayed by almost 274 days. As such the MH & AD Board has rightly levied the interest amount of Rs. 2,36,019/- as per rules. Lastly opposite party prays that the present complainant deserves to be dismissed with compensatory costs.
17. In view of rival pleadings of the parties, following issues are arise for our determinates and same are reproduced before along with findings and reasons stated against each of them as follows:

18. To substantiate the claim complainant have filed a Booklet of MH & AD Board Information Brochures at Annexure “A”, a provisional offer letter (POL) at Annexure “B”, NOC to Bankers – First vide Annexure “C”, Letter from bankers vide Annexure “D”, show cause notice by MH & AD Board vide Annexure “E-1”, reply to show cause notice vide Annexure “E-2”, Communicates to MH & AD Board by complainants vide Annexure “F-1&2”, NOC to Bankers second vide Annexure “G”, Demand of interest by MH & AD Board vide Annexure “H”, payment receipt of Interest vide Annexure “I”, refund application to MH & AD Board vide Annexure “J” and submission to Chairman MH & AD Board on refund vide Annexure “K”.
19. In defence opposite party filed Affidavit of evidence and copy of Information branches on record.
20. Heard both parties.

As to Issuances A to F

Subject matter and evidences involved in Issue Nos. A to F are interlinked and interconnected to each other.To avoid repetition of evidence, all issues are discussed herewith together.

21. Initially, we would like to discuss whether the complainant is the consumer of the opposite party. Opposite party strongly resisted the claim on the ground that no cause of action has accrued in favour of the complainant No. 2 hence the suit is liable to be dismissed for misjoinder of parties.
22.  It is admitted fact that the flat in question is allotted to the complainant No. 2. Admittedly, complainant No. 2 is party to present complaint as far as complainant No. 2 is concerned, he is father of the complainant No. 2. It is pertinent to note that complainant No. 2 executed power of attorney in favour of his father i.e. Complainant No. 1 in respect of the flat in question. It is admitted fact that complainant No. 1 died on 27/09/2014 during pendency of present complaint.
23.  In such a circumstances having presence of complainant No. 2 in present complaint as necessary and proper party, the objection raised by the opposite party in regard to misjoinder of necessary party have no any base. The opposite party failed to point out in regard which prejudice they had been caused due to addition of complainant No. 1 as party to present complaint. Secondly, complainant No.1 is father of Complainant No. 2 has executed Power of attorney in favour of complainant No. 1. Both the complainant have the same interest in the subject matter.
24.  As per section 2(d) of the Consumer Protection Act, 1986 ‘Consumer’ means any person who hires or avails of any services for consideration which has been paid or promised or partly paid and party promised. In the case on hand, complainant No. 2 took possession of flat in question from opposite party for a consideration of Rs. 56,24,000/- present dispute is in regard to refund of levy of interest. The claim is strongly resisted by opposite party. Hence, complainant came into ambit of consumer and dispute in question exclusively covers the definition of consumer dispute.
25. It is an  admitted fact that 25% of the cost of said flat was paid by complainant within a stipulated period i.e. within 30 days from the date of provision offer letter. In this case from 21/11/2009 to 20/12/2009 the complainant paid this 25% amount on 25/11/2009. However, the remaining 75% amount of the said flat, which is to be paid within a period of 90 days from the date of issuance of provisional offer letter is paid on 23/08/2010.
26.  As per opposite party it is delayed by 274 days. It is admitted fact that the provisional offer letter is issued to the complainant No. 2 on 21/11/2009. However, subsequently, the allotment of the complainant No. 2 came in dispute and the same was cancelled. The complainant No. 2 thereafter approached the Appellate Authority and got declared eligible.

27.  As per provisional offer letter (POL), complete payment was to be paid within 90 days from the date of POL. In this case from 21/11/2009 to 18/02/2010 i.e. 25% within 30 days and reminder within the next 60 days (total 90 days). Accordingly, complainant have made payment of 25% i.e. 14,06,000/- on 25/11/2009 it means complainant have paid 25% amount within stipulated period. This fact admitted by the opposite party.
28.  MH & AD Board (Opposite Party), unilaterally stopped the process in the first week of Feb. 2010, informing the complainants orally, that no further payments will be accepted as the POL is under hold and the matter is with higher authorities for decision. The bank pay order Rs. 8,18,000/- presented on 10/02/2010 have not been accepted by the bank due to POL is under dispute. Bankers on their part told to complainant that sanctioned loan amount cannot be disbursed without clearance of MH & AD Board.
29.  After lapse of 06 months, the marketing department issued a fresh no objection certificate to bankers dated 15/07/2010 withdrawing the earlier dated 01/12/2009. The complainant first loan application was  time barred being more than 06 months old being applied on 01/12/2009 with earlier NOC. Bankers returned the loan documents filed to the borrower on 16/05/2010 stating  him to reapply after getting clearance from MH & AD Board. Issue of fresh NOC is termed by Opposite Party as being clearance. Therefore  reprocessing was resorted and complainant had to suffer unnecessary harassment by paying the cost of processing a fresh.
30. The bankers sanctioned the loan and an amount of Rs. 34,00,000/-was disbursed and deposited with MH & AD Board on 23/08/2010 thus making the full payment towards the cost of allotment of flat. It means complainant have paid 75% amount within 90 days from the issuance of fresh NOC by Marketing Department dated 15/07/2010 the complainants have paid 75% amount on 23/08/2010. There is no delay of 274 days as alleged by opposite party.
31. The complainants have suffered economic loss, agony due to negligence and deficiency of service on the part of opposite party. Hence imposing the interest amount Rs. 2,36,019/- by opposite party is not legally and equitably justifiable.    
32. The very object of Act is to provide the better protections to the consumers and for that purpose provision of redressal forum come into existence. In the present case alleged delay of 274 days as per opposite party is not on behalf of complainant but it is outcome of negligence of opposite party.
33. Complainant has satisfied that he is a consumer and present case is maintainable against opposite party.
34. The opposite party is guilty of being deficient in providing proper services to its customer, therefore complainant is entitled for declaration as prayed for.

The opposite party is liable to refund amount of Rs. 2,36,019/- levied illegitimately on complainant. The claim of the complainant as to impose interest of 13.5% p.a. is in our opinion exorbitant. However, due to deficiency in service and delay in legitimate right of complainant of occupation of allotted flats and considering mental agony, the opposite party is liable to pay compensation to the complainant.

35.     In the result we pass the following order.

                                         O R D E R

1.       RBT Complaint case No.65/2012   is Partly Allowed.

2.       It is hereby declared that, opposite party is engaged in unfair trade practices.

3.       The opposite party is directed to refund amount of Rs. 2,36,019/- (in words Rupees Two Lacs Thirty Sex Thousand Nineteen only) to the complainant, alongwith interest @ 6% p.a. from the date of receipt of the amount by the opposite party.

4.       The opposite party is directed to pay compensation of Rs. 25,000/-  and cost of Rs. 10,000/- to the complainant.  

5.       Copy of this order be sent to both parties.