For Complainants : Adv. Shri. Gandhare
For Opponent : Adv. Shri. Patil
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Per : MEMBER, Smt. Sujata Patankar
//JUDGMENT//
(1) The facts giving rise to the complaint briefly stated are as under:-
It is the case of the Complainants that the Complainants had booked flat in the Building H, Flat No.701, on the 7th floor in the said scheme and the total area of the said flat is 1253 sq.ft. which includes Master Bed Room, 2 Bed Rooms, Hall, kitchen, Living room with terrace, Dining etc. Two and half BHK flat. It is also agreed to take covered Car Park. The total consideration of the said flat is fixed at Rs.40,22,516/-. At the time of the booking of the said flat, in the month of November 2007, it has been specifically agreed between Opponent and Complainants that only booking amount will be given at the time of booking and within 18 months, Opponent had agreed to deliver vacant and peaceful possession of the said flat to Complainants and that before taking possession, Complainants will give total balance consideration to Opponent. This fact is admitted by Opponent while negotiating the transaction in respect of the above mentioned flat. Therefore no agreement to sale was executed between Complainants and Opponent. On 19th November 2007, Complainants had booked the flat and gave Opponent booking amount of Rs. 5,88,377/- by a cheque drawn on Canara Bank, Chinchwad Branch, bearing No. 377422. It is also further submitted that Opponent had given receipt No. 26 on the same day in respect of booking of flat. Opponent had agreed to give possession of the abovementioned flat within 18 months from November 2007. Therefore agreement to sale was not executed between Complainants and Opponent. By the end of April 2008, i.e. within 18 months Opponent had not given possession of the said flat to Complainant. According to the Complainants since last 8 months, there was no progress in the construction work on the site. Subsequently Opponent had changed the flat of Complainants from 701 to 804 in the said scheme. Without doing construction work within time, Opponent had illegally demanded balance consideration to Complainants and Opponent are sending unnecessary letters to Complainant. It is the contention of the Complainants that as no agreement to sale was executed between the parties, i.e. Complainants and Opponent, therefore Opponent have no right in law to ask for interest on the balance consideration. As Opponent has completely stopped the construction work at the site, therefore Opponent has committed breach of the oral terms and conditions of the agreement. It is also further contended that by sending legal notice by RPAD dated 1/6/2009, Complainants have cancelled the booking of the flat which was booked with Opponent and demanded to refund the amount of booking within 15 days from the date of receipt of notice. Instead of refunding the amount of the Complainant, Opponents are sending the letters to the Complainant. On all these grounds and as stated specifically in the complaint application, the Complainants have demanded to direct the Opponent to give the said booking amount of Rs.5,88,377/- of flat with the interest thereon. The Complainants have filed separate affidavit in support of the complaint application. The Complainants have also filed list of documents comprising xerox of booking form dated 19/11/2007, receipt given by Opponent to Complainants of Rs.5,88,377/- dated 19/11/2007, the Opponent Scheme the Metropolitan costing rate paper of total apartment cost, proposed plan of the Scheme and proposed flat sketch and plan given to Complainants by Opponent, notice sent by Complainants through Advocate by RPAD dated 1/6/2009 to the Opponent, acknowledgment of the legal notice by the Opponent etc..
(2) In pursuance of the notice of appearance issued by this Forum, the Opponent has appeared and filed its written statement. In their written statement it is stated that the Complainants have suppressed material facts. It is the contention of the Opponent that the total costs of the flat which is the subject matter of the dispute is Rs.42,12,746/-.As per Section 11 of the Consumer Protection Act, this Hon’ble Forum is having jurisdiction to entertain the complaints, where the value of the goods or services and the compensation if any does not exceed Rs.20,00,000/-. In view of this, Forum is not having the jurisdiction to try, entertain and decide the present complaint. The complaint should have been filed before the Sate Consumer Dispute Redressal Forum, Mumbai, which is the appropriate Forum, having pecuniary jurisdiction to try, entertain and decide the present complaint. The complaint is not within limitation as per the Consumer Protection Act. The Complainants are not consumers within the meaning of Section 2 (d) of the Consumer Protection Act, and therefore the Complainants have no locus standi to file the present complaint. By virtue of the application form, the Complainants applied for booking of flat No. 701 dt.19/11/2007. Lateron as per the request of the Complainants the flat was changed to 804 on the 8th floor. The Complainants paid an amount of Rs.5,88,377/- by cheque No.377422 drawn on Canara Bank, Chinchwad Branch towards application money. The Opponent submitted their terms and conditions and also schedule of payment given in booking form as per booking form, the Complainants have specifically made aware about his schedule of payment. It was never so agreed that the remaining entire amount shall be payable at the time of booking, the Complainants are trying to create false evidence by making such false contentions. The Opponent further stated that on perusal of list of documents the Complainants have deliberately not annexed the later part which clearly mentions the terms and conditions of allotment as the Complainants are sure that if such terms are filed before this Hon’ble Forum, the Hon’ble Forum will decide the entire case against them. This is a clear example of suppression of material facts. The Opponents are producing herewith the booking form with separate list of documents which will falsify most of the alleged claims of the Complainant. The Opponent states that the schedule of payment as agreed and the amounts as per the stage of construction which the Complainants were liable to pay as per table mentioned in para (vi) of the written statement. This table shows that more than 21 reminders have been sent to the Complainants calling upon them to pay the installments which become due as per progress of the construction on the site. This shows that after the booking amount the Complainants have not made a single rupees towards consideration payment in respect of said flat and therefore the Complainants themselves are defaulters. It is the contention of the Opponent that the Opponents were entitled as per condition No.10 of the terms and conditions of allotment to terminate the allotment however the Opponent sent reminder letters on several dates but the Complainants have even failed to reply to the reminder letters. The Opponent as on the date of filing of the complaint, the Complainants are liable to deposit an amount of Rs.34,51,232/- towards balance amount and Rs.8,24,934/- towards interest. It is pertinent to note that the Complainants as per the terms of the allotment letter, have no right to cancel the allotment. In the instant case, the Opponents are showing reason of No progress in work, as the reason to cancel the booking. The Opponents are producing architects certificate to show that the work at the site in moving in a very fast pace. The Opponent states that even it is presumed for the sake of arguments that the Complainants are entitled to refund then the Complainants must be made liable to pay interest on the due amounts. The remaining amount may be directed to be refunded after reduction of 25% of booking amount paid or Rs.1,00,000/- whichever is higher. Thus an amount of Rs.1,47,094.25/- paise is liable to be deducted from the booking amount paid and at the most may be entitled to get refund of an amount of Rs.4,41,251.75/- paise as per clause No. 10 of the application form. But this calculations should not be treated as an admission on the part of the Opponents, that they are ready to refund the amount. Hence the Opponent prayed that the complaint may kindly be dismissed with cost. The say is filed alongwith affidavit. As also the Opponent has filed documents with list i.e. application form, booking form, receipt of payment by the Opponent to the Complainant, 31 demand letters by Opponent to the Complainants alongwith courier receipts
(3) The Complainants have filed affidavit in support of evidence. The contents made by the Opponent in the written statement are not admitted by the Complainant. It is the contention of the Complainant that there is no any demand of the Complainants for change of flat. The Opponent had not given the possession of flat within 18 months from November 2007 as agreed by the Opponent. Therefore there is no agreement to sale was executed between the Complainants and the Opponent. Without doing construction work in time, the Opponent had illegally demanded balance consideration to the Complainants by sending demand letters.
(4) On perusal of the entire proceedings, pleadings, documentary evidence, written and oral arguments by both the parties, the following points arouse for our consideration.
Points Answers
1. Whether the Opponent has rendered
deficiency in service to the Complainant? … Yes.
2. What order ? … As per final order.
REASONS :-
(5) In the written statement of the Opponent the Opponent has raised the point of pecuniary jurisdiction. In this case, the Complainant has demanded the amount of Rs.5,88,377/-. Therefore this Hon’ble Forum has jurisdiction to entertain the present complaint application.
(6) The Complainants have paid an amount of Rs.5,88,377/- on 19/11/2007 by cheque to the Opponent towards part/final payment against allotment of 2½ BHK Appt. No. 701 Bldg. No.H as per exh.6/2. The Complainants have filed receipt dtd.19/11/2007 with complaint application. The Opponent has not denied the receipt and also amount paid by Complainants to the Opponent in their written say and affidavit. Hence it is undisputed fact that the Complainants have paid the amount of Rs.5,88,377/- to the Opponent for part payment against allotment of the flat. Therefore in our opinion, the Complainants are consumers of the Opponent.
(7) After perusal of the documentary evidence on the record it is the case of the Complainants that the Complainants had booked the flat in the Building H flat No.701 on seventh floor, total area 1253 sq.ft. for the total consideration of Rs.40,22,516/- and therefore the Complainants have paid an amount of Rs.5,88,377/- to the Opponent as a part payment for consideration of flat on 19/11/2007. It is the contention of the Complainants that there is no any agreement to sale was executed between the Complainants and the Opponent. The Complainants were signed booking form given by the Opponent and as per the booking form the Opponent had agreed to give possession of said flat within 18 months from November 2007 to the Complainant. As against this the Opponent states that as on the date of filing of the complaint, the Complainants are liable to deposit an amount of Rs.34,51,232/- towards balance amount and Rs.8,24,934/- towards interest. As per the terms of the allotment letter, Complainants have no right to cancel the allotment because the Opponents are producing architect certificate to show that the work at the site is moving in a very fast pace. The Complainants have not paid remaining consideration as per the terms and conditions of allotment mentioned in the booking form. As also the Opponent further stated that more than 21 reminders have been sent to the Complainants for payment of installments which became due as per the progress of the construction on the site. After the booking amount, the Complainants have not made a single rupee for remaining consideration in respect of said flat and therefore the Complainants themselves are defaulters. It is also the contention of the Opponent that the Opponents were entitled as per the condition no. 10 of the terms and conditions of allotment to terminate the allotment, however the Opponents have shown great level of tolerance by not terminating the allotment on the contrary the Opponents have sent reminder letters but the Complainants not paid any consideration to the Opponent. After perusal of the complaint application and say filed by the Opponent it is clear that the Complainants have paid the amount of Rs.5,88,377/- to the Opponent in the year 2007 and after that the Complainants have not paid any remaining amount to the Opponent. There is no any documentary evidence on record which shows that there is no any correspondence by the Complainants to the Opponent regarding termination / cancellation / refund of money till 1/6/2009. The Complainants paid the amount of Rs.5,88,377/- on 19/11/2007 to the Opponent and sent legal notice by Advocate M.S. Gandhare on 1/6/2009 at first time. It means that after 18 months from the date of booking, the Complainants are demanding their amount from the Opponent. There is no any documentary evidence on record which shows that it is obligatory on the Opponent to give possession to the Complainants within 18 months from the date of booking. Hence the contention of the Complainants about possession within 18 months is not considerable.
(8) The Opponent sent reminders to the Complainants for payment of remaining consideration. In our opinion, when the Complainants have not paid total consideration within stipulated time or as per the terms and conditions given in the application form. It is obligatory on the Opponent to terminate the contract as per the condition No. 10 of the terms and conditions. But in this case, the Opponent stated in their written statement that without termination the Opponent sent reminder letters from the year 2008-2009 to the Complainant. Thereafter also the Complainants have not paid remaining consideration to the Opponent and the Complainants also sent demand notice to the Opponent in the year 2009.
(9) After perusal of the documentary evidence filed on record by both the sides, it is crystal clear that the Opponent retained the money of the Complainants from 2007 till today with them. It is mandatory on the Opponent to execute the agreement under the provisions of Maharashtra Ownership Flats Act. But there is no any agreement executed between the Complainants and the Opponent on record, failing which the Opponent retained the money of the Complainants from 2007 till today with them. When there is demand of money made by the Complainants to the Opponent, the only option left to the Opponent to refund the money to the Complainants as per their demand. But in this case, without any reason the Opponent retained the money of the Complainants with them after demand by the Complainants. In our opinion, the Opponent has not refunded the amount of the Complainants as per demand by the Complainants, which amounts to deficiency in service on the part of the Opponent.
(10) After perusal of documentary evidence on record the terms and conditions mentioned in application form are totally made in favour of Opponent. Therefore in our opinion, the Complainants are liable to recover the amount of Rs.5,88,377/- from the Opponent alongwith interest. The Opponent retained the money of the Complainants till today with them therefore the Complainants are entitled to recover the amount of Rs.5,88,377/- alongwith 9% interest from the date of filing of this complaint application i.e. 29/1/2010 till realization thereof from the Opponent.
(11) The Complainants have filed this complaint application against the Opponent to recover the amount of Rs.5,88,377/- alongwith interest and therefore, the Complainants have sustained cost of proceeding and therefore, in our opinion, the Complainants are liable to recover the amount of Rs.2,000/- from the Opponent towards cost of proceedings.
(12) With the aforesaid discussion, we proceed to pass the following order :-
// ORDER //
(i) The complaint is partly allowed.
(ii) The Opponent is directed to
pay to the Complainants an amount of Rs.5,88,377/- (Rs. Five Lacs. Eighty Eight Thousand Three Hundered & Seventy Seven Only ) alongwith interest thereon @9% p.a. from 29/1/2010 till realization thereof
(iii) The Opponent is directed to
pay an amount of Rs.2,000/- to the Complainants.
(iv) The Opponent is directed to pay the aforesaid amounts to the Complainants within a period of (30) days from the date of receipt of this order.
(v) Certified copies of this order be supplied to all the parties free of costs.
