Per Shri Dhanraj Khamatkar, Hon’ble Member On behalf of Mr.Hemang Harshvadan Vyas, Mrs.Hansa Harshvadan Vyas and Mr.Harshvadan Bhogendraprasad Vyas (hereinafter referred to as ‘complainants’) the Consumer Welfare Association has filed complaint under the Consumer Protection Act, 1986 against Gharonda Construction Pvt. Ltd., Mr.M.S.A. Dalvi, Director, Gharonda Construction Pvt. Ltd., and Renu Co-operative Housing Society (hereinafter referred to as ‘opponents’) on 08/02/2010. The complaint was registered as consumer complaint No.19/2010. 2. The facts leading to this complaint can be summarized as under :- There was an Agreement of Sale on 09/09/2003 with the opponents for flat bearing No.10 on 5th floor, A-wing in a building to be constructed and known as ‘Yogi Smruti” situated at 85, Park Road, Vile Parle (East), Mumbai-400 057. As per agreement, area of the flat is 625 sq.ft. carpet area and amount of consideration is `28 Lakhs and possession of the flat was to be handed over on or before 31/05/2004. The complainants contended that opponents wanted an amount of `7 Lakhs in cash and as the complainants were not having cash amount it was decided to pay the amount to nominee of opponent Nos.1&2 by cheque. Accordingly, a sum of `7 Lakhs was paid by the flat purchasers to one Mr.B.N. Patwa vide cheque No.642932 dated 09/09/2003 drawn on Dena Bank, Vile Parle (East) Branch and thus, the total consideration for said flat comes to `35 Lakhs. 3. It is contended by the complainants that they have paid `24,50,000/- in six installments which comes to 87.5% of total cost of the flat plus `7 Lakhs paid to nominee of the opponent Nos.1&2 Mr.B.N. Patwa and after payment of this amount, the agreement for sale was executed by the opponents. As per chart given by the complainants amount of `31,50,000/- has been paid and they have attached the receipts for amount of `24,50,000/- and given the particulars of the amount of `7 Lakhs paid by cheque No.642932 drawn on Dena Bank, Vile Parle (East) Branch to opponents’ nominee Mr.B.N. Patwa. The remaining amount i.e. `3,50,000/- was to be paid at the time of taking possession of the flat. Apart from this payment, the complainants have paid an amount `2,12,270/- towards stamp duty and `30,000/- as registration charges and `1,400/- as miscellaneous charges. 4. It is contended by the complainants that because of various problems, opponent Nos.1&2 could not start construction. After persistent follow-up and mediation, opponents sent a reply dated 23/06/2007 admitting therein that they were facing certain problems, but construction had now commenced. Copy of said letter is also annexed and marked as ‘Exhibit-D’. In the said letter, opponent Nos.1&2 asked the complainants to bear with the delay or take their moneys back along with interest @ 8% p.a. By their letter dated 24/05/2008 opponent Nos.1&2 informed the complainants that construction could not start as per the schedule because of circumstances beyond their control, but it will commence soon. Again by letter dated 21/08/2008 opponent Nos.1&2 had informed to the complainants that stop work notice issued by the Municipal Corporation, Greater Mumbai had been withdrawn. They also informed that civil construction work will start after the monsoon season is over. The complainants requested the opponents vide their letter dated 07/10/2008 to provide a temporary alternate accommodation of their choice on Park Road at Vile Parle (East), or pay interest @ 18% p.a. and compensate them for the agony caused because of undue delay in construction of the building and in giving possession of the flat. As the opponent Nos.1&2 had not responded to the letter, they have sent a reminder on 07/11/2008. In response to the letter dated 07/11/2008 opponent Nos.1&2 informed the complainants vide letter dated 11/12/2008 admitted the fact that the work had not started yet and the same will start within a period of two weeks and the opponents also offered to compensate the flat purchasers by providing free extra usable area equivalent to 10% carpet area. The complainants had sent a legal notice on 28/03/2009 which was replied by letter of Advocate of opponent Nos.1&2 dated 30/04/2009. In the reply, opponent Nos.1&2 denied the allegations made by the complainants, but admitted the delay and stated that the work was in progress and the possession would be handed over soon. As the complainants could not get possession, they have filed consumer complaint with following prayers :- “The complainants, therefore, prays :- (a) that the opposite parties be jointly and severally directed to construct and hand over to the flat purchasers the possession of Flat No.10 on the 5th floor of “A” Wing in “Yogi Smruti” situated at 85, Park Road, Vile Parle (East), Mumbai 400 057 within a time bound period; OR ALTERNATIVELY (b) the opposite parties be jointly and severally directed to provide to the flat purchasers alternative accommodation by paying for and purchasing and registering a flat of similar size in the same locality (i.e. at Park Road in Vile Parle (East), as per the choice of the flat purchasers; (c) that the opposite parties be jointly and severally directed to pay interest at 12 per cent per annum on the amount of `31,50,000/- paid for the flat, the interest being computed for the period of delay, i.e. from 01/06/2004 onwards till actual realization; (d) that the opposite parties be jointly and severally directed to pay compensation of `50/- per day of delay for the mental harassment caused by the failure to hand over possession of the flat as per the agreement; (e) that costs of the complaint be granted; and (f) for such further and other reliefs and/or directions as this Hon’ble Commission may deem fit and proper.” 5. Notices were served on the opponents. Opponent No.3 remained absent though duly served and hence, complaint proceeded in absence of written version of opponent No.3. Opponent No.2 had filed written version on behalf of opponent Nos.1&2 raising preliminary objection. It is contended by opponent Nos.1&2 in their written version that there is no deficiency on their part and they have acted in accordance with the terms and conditions of the agreement of providing a flat. They further alleged that the complainants are guilty of suprresio veri and suggestio falsi and seeking reliefs which cannot be agitated by the complainants as the reliefs sought for by the complainants tantamount to the complainants seeking orders from this Commission directing the opponents to act in violation of the terms and conditions of the agreement of sale executed between the parties. It is further contended by opponent Nos.1&2 that complaint involves detailed and disputed question of facts which is evident from simplicitor perusal of the complaint and the reliefs claimed therein. 6. Opponent Nos.1&2 denied that they have accepted `7 Lakhs as black component for said flat as alleged by the complainants and put the complainants to strict proof thereof. They have admitted that they have received amount of `24,50,000/- and not `31,50,000/- as alleged by the complainants and put the complainants to strict proof thereof. They have admitted receipt of `24,50,000/- and also admitted that balance amount of `3,50,000/- is to be paid at the time of taking possession of the flat. Opponent Nos.1&2 had stated that because of various hurdles faced by them, they failed to start construction. They have admitted that complainants had written various letters to them. Opponent Nos.1&2 had agreed to pay interest @ 8% p.a. on actual consideration amount paid, if the complainants opt to cancel the agreement and even today they are ready and willing to return the said amount to the complainants with 8% p.a. interest if they are not willing to wait for some time. Opponent Nos.1&2 denied contents of Para 10 of the complaint in toto. Opponent Nos.1&2 had denied receipt of letters dated 07/10/2008 and 07/11/2008 of the complainants. However, they have admitted that they have sent letter dated 11/12/2008. However, they denied that they offered to compensate the flat purchasers by providing free extra usable area equivalent to 10% of carpet area as alleged and put the complainants to strict proof thereof. 7. Further the opponent Nos.1&2 shown their readiness and willingness to give a flat to the complainants, if they are willing to wait till completion of the project or else they have stated that they are ready and willing to refund the amount paid to them with interest @ 8% p.a. as per the agreement. They further stated that they never denied possession of the flat as and when ready. Opponent Nos.1&2 have also stated that complaint is not filed in time. Opponent Nos.1&2 further stated that right from beginning they are suffering at the hands of some of the members of opponent No.3/Society and they have to initiate legal proceedings against them and opponent No.3 as well as against the Municipal Corporation in the City Civil Court and because of said litigations, project was delayed. Opponent Nos.1&2 further stated that they are ready and willing to refund amount of consideration with agreed rate of interest as and when the complainants demanded the amount. 8. The complainants had filed copy of order dated 13/10/2011 passed in Civil Application No.160/2011 in First Appeal No.928/2011, wherein the Hon’ble High Court has directed respondent Nos.1&2 i.e. present opponent Nos.1&2 to apply for modification of the ad-interim relief after making compliance with clause 3 of the order dated 07/07/2011. From the said orders, it is seen that opponent Nos.1&2 had to comply certain directions given by the High Court and they have not complied the same. 9. Both the parties were directed to file their evidence on affidavit. The complainants had filed their affidavit and closed their evidence. Opponent Nos.1&2 had also filed their written version on affidavit and apart from this they have not filed any evidence. Opponent Nos.1&2 were directed to file copy of the order of the High Court and also to send copy of the stay order to the Authorised Representative of the complainants. On 14/09/2011 both parties were directed to file their respective brief written notes of arguments as per Regulation 13(2) of Consumer Protection Regulations, 2005 and exchange copies thereof with each other at least a fortnight prior to the next date. On 29/06/2012 opponents remained absent. A.R. of the complainants had completed his arguments. On 12/07/2012 A.R. of the complainants had filed documents pertaining to Ready Reckoner of the prices in the vicinity of area where the flat in complaint situated published by the Government. It was taken on record. On 12/07/2012 opponents and their Advocate remained absent. Their representative one Mr.Rashid requested for adjournment and adjournment was granted subject to costs of `2,000/-. On 19/07/2012 Advocate for the opponent Nos.1&2 was present. However, he did not pay the costs and hence, matter was adjourned to 20/07/2012. On 20/07/2012 matter was heard and closed for orders. 10. We have gone through the complaint, written version filed by the opponents, evidence filed by both the parties on affidavits and pleadings of the Advocate and Authorised Representative. 11. This is a very interesting case. Admittedly, the complainants had booked a flat bearing No.10 on the 5th floor of A-wing in a building to be constructed by the opponent Nos.1&2 and known as “Yogi Smruti”. Area of the flat booked was 625 sq.ft. carpet area and the total consideration of the flat was `28 Lakhs and possession of the same was to be handed over on or before 31/05/2004 as per clause 32 of the said agreement. It is the contention of the complainants that they have totally paid `31,50,000/- towards consideration of the flat. Opponent Nos.1&2 admitted payment of `24,50,000/-. It is the contention of the complainants that apart from this `24,50,000/- they have paid an amount of `7 Lakhs as black component of said flat and as they were not having black money, they have paid `7 Lakhs to one Mr.B.N. Patwa vide cheque No.642932 dated 09/09/2003 drawn on Dena Bank, Vile Parle (East) Branch. Opponent Nos.1&2 have simply denied payment of an amount of `7 Lakhs. However, it is a denial simplicitor. On the contrary, the complainants have given a name of person to whom they have paid the amount and the cheque number and date and name of the Bank. In their written version, opponent Nos.1&2 have only denied the payment. However, they have not denied their relationship with Mr.B.N. Patwa and whether they have ultimately received the payment. In view of details of the payment given by the complainants, it was encumbered on the opponent Nos.1&2 to come with denial with specific evidence. In view of specific denial and in view of details given by the complainants, we hold that an amount of `7 Lakhs has been received by the opponent Nos.1&2 from the complainants through their representative. In one word, opponents have received payment of `31,50,000/-. Agreement of Sale is at page-19 of the complaint compilation and said agreement is executed on 09/09/2003. As per the agreement, clause (k), amount of `3,50,000/- being a balance amount of purchase price to be paid by the purchasers to the promoter on or before the promoter handing over possession of the flat to the purchasers and as per clause-32 of said agreement, promoters were to hand over possession of the flat on or before 31/05/2004. 12. At page-45 of the complaint compilation, there is a letter dated 03/07/2007 written by opponent Nos.1&2 informing that “As promised the work has already started. However, still, we are facing same problems from some of the members of the society. Under these circumstances, we request you to bear with us for some more time or take your consideration amount with interest @ 8% p.a. In this regard your attention is drawn to Para 31 and please inform us within two weeks from receipt of this letter to arrange for your payment. In default, we presume that you have agreed to bear with us for some more time.” At page-46, there is a letter dated 24/05/2008 wherein the opponent Nos.1&2 have informed the complainants that “we are in process of obtaining start work letter from Municipal Corporation, Building Department, Bandra, Mumbai. As soon as we get the consent, we shall start our work and inform you accordingly. In the meantime, please bear with us that the work could not be started as per schedule because of circumstances beyond our control.” On page-47 of the complaint compilation, there is a letter written by opponent Nos.1&2 dated 21/08/2008. Letter gives a reference of meeting dated 03/08/2008 and the letter further states that the opponent Nos.1&2 have handed over a copy of withdrawal of stop work order issued by Municipal Corporation, Greater Mumbai in the opponent Nos.1&2 favour. The letter further states that the Society i.e. opponent No.3 has requested them to start the civil work after the monsoon season is over. Hence, we look forward to start civil work as soon as rainy season is over. At page-51 of the complaint compilation, there is a letter dated 11/12/2008 which states that “Unfortunately we have failed to provide you said flat till date which was supposed to have been provided by 31/05/2004.” It further states that “You have been repeatedly asking for interest from the date of payment paid towards consideration till the date of giving possession of the flat. We hereby make our commitment to give extra free usable area i.e. 10% of carpet area in place of payment of interest without any extra payment.” The letter further states that opponent Nos.1&2 herein categorically informed the complainants that the work on the site will start within two weeks from today. In the written version, opponent Nos.1&2 have denied the facts that they have written these letters and it is only a simplicitor denial. 13. From perusal of aforesaid letters written by the opponent Nos.1&2 to complainants, it is clear beyond doubt that they have promised the complainants from time to time that they are going to make the construction. 14. Opponent Nos.1&2 have taken a stand that there was a dispute between the Housing Society to whom the land belongs and the builder/promoter and there was a civil litigation. In support of their contention, they have filed a copy of High Court order dated 07/07/2011 wherein the Hon’ble High Court has recorded that it is obvious that unless compliance is made with the terms and conditions incorporated in the letter, the respondent Nos.1&2 could not proceed with the construction on the basis of impugned decree. The respondents in the aforesaid appeal before the High Court are the present opponent Nos.1&2. Again there is a copy of order dated 13/10/2011 passed by the High Court. Here also the Hon’ble High Court Judge recorded that it will be open for respondent Nos.1&2 to apply for modification of ad-interim relief after making compliance of clause (3) of the order dated 07/07/2011. From these orders, it is clear that as opponent Nos.1&2 had not complied with the order of the High Court, they could not start the construction. 15. From the aforesaid facts, it will be clear that complainants have booked the flat and paid the amount of `31,50,000/-. However, opponent Nos.1&2 failed to construct the building and to hand over possession after accepting remaining amount. No doubt, there is civil litigation between the parties. However, opponent Nos.1&2 have assured the complainants vide their letters that they are going to start the construction. The reasons given for the delay in handing over the possession is the civil litigation between opponent Nos.1&2 and opponent No.3/Housing Society. Looking into the letters subsequently written by opponent Nos.1&2 to the complainants, it proved deficiency in service on the part of opponent Nos.1&2. From perusal of the orders of the High Court also it is seen that they have failed to comply with the orders of the High Court. 16. In their written version, opponent Nos.1&2 had taken a stand that as per terms and conditions of the agreement, clause 31 which reads as - “In case, by any reason beyond the control of developer, the developer is unable to give possession of flat to the buyer, the developer shall refund full consideration of said flat No.10 on 5th floor, together with interest @ 8% p.a. after said flat is sold by the developer to new buyer with effect form the date of receipt of the money from the purchaser.” This provision states that if the situation is beyond the control of developer i.e. present opponent Nos.1&2 and from the facts of the case, we observe that possession is delayed because of civil litigation. However, opponent Nos.1&2 have time and again impressed upon the complainants that they are going to start the construction work. As regards civil litigation, from perusal of the orders of the High Court, we find that compliance is not made by opponent Nos.1&2 and hence, they could not start the construction. 17. The complainants have booked a flat in the year 2003, made the payments from 09/05/2003 to 09/09/2003. In the last 7 or 8 years, prices of the real estate have nearly increased by 4to5 times of the prices prevalent at the time of booking of the flat. Seeing the conduct of opponent Nos.1&2, we find that they have not initiated process for termination of the agreement. On the contrary, time and again they have tried to assure the complainants that they are going to construct the flat and handing over the possession to the complainants. It will be unfair and unjust to pass the order relying on the condition of the agreement to return the amount with interest @ 8% p.a. The complainants have filed a copy of Time of India, Property Market Value prepared on the basis of Magicbricks.com which are calculated and based on property listings on magicbricks.com as on 08/06/2012 as well as current market value of the flat as per Department of Registration & Stamps, Government of Maharashtra as per Exhibits- B&C. The statement filed by complainants showing market value of the flat is as per Department of Registration & Stamps, Government of Maharashtra, Pune. The area of the flat is 625 sq.ft. and it converts to 58.0645 sq.mtrs. Equivalent built up area comes to 69.6780 sq.mtrs. Rate per square metre is `1,25,300/- and total current market value of the flat comes to `87,30,653/-. The complainants have relied on the decisions of the National Commission in the case of Veena Khanna V/s. Ansal Properties & Industries Ltd. & Ors., III (2007) CPJ 185 (NC) and Distt. Manager, Telephones, Patna & Anr. V/s. Dr.Tarun Bharthuar & Anr., I (1992) CPJ 47 (NC). 18. Complainants have provided a copy of Ready Reckoner to the opponents. However, opponents had not filed their say on that. 19. We have gone through the authorities cited by the complainants. In the case of Veena Khanna V/s. Ansal Properties & Industries Ltd. & Ors., III (2007) CPJ 185 (NC), wherein the National Commission observed that “Counsel for the appellant submitted that complainant was ready and willing to take possession of the flat but there was unusual delay on the part of builder to construct the flats and when the building was not constructed as per contemplated time period, but was under construction. Further, the National Commission also observed that Consumer Fora is not governed by adversary system procedure, but it is to hold inquisitorial proceedings, the State Commission ought not to have look only to the prayer made by the complainant, but ought to have looked into the substance of the matter and at the defence of the opposite parties. The National Commission further observed that direction for delivery of the possession of the flat ought to have been passed and for delay in delivering the possession, adequate compensation should have been awarded. The National Commission further observed, therefore, that there are two alternatives – (a) one is to give adequate compensation for delay and to direct opposite parties to hand over possession of alternative flat in the vicinity of the area where the flat was allotted to the complainant; (b) or to pay adequate compensation to enable the complainant to purchase a new flat of the same area in the same or similar locality. Learned A.R. of the complainants had produced a copy of judgement of the National Commission in the case of Distt. Manager, Telephones, Patna & Anr. V/s. Dr.Tarun Bharthuar & Anr., I (1992) CPJ 47 (NC), wherein the National Commission has observed that “reliefs which the Consumer Fora can grant are specified in Section 14 of Consumer Protection Act, 1986. As per Section 14(1)(d) of Consumer Protection Act, 1986, it is for the Consumer Fora to pay appropriate amount by way of compensation to a consumer for any loss or injury suffered by him due to negligence of the opposite parties. In other words, it is not mandatory or obligatory on the part of the complainant to ask for a specific relief and the Consumer Fora are not debarred from granting reliefs not prayed for by the complainant in the complaint. 20. The facts and circumstances of the aforesaid authorities are similar to the facts and circumstances of the case in hand. In a present case, the complainants had booked a flat, paid the amount more than consideration of the flat. Opponent Nos.1&2 had informed the complainants several times that they are going to start the construction. However, construction could not be carried out. Opponent Nos.1&2 had tried to take a plea that because of civil litigation they could not start the construction. In support of their contention they have filed copies of the order dated 07/07/2011 and 13/10/2011 of the Hon’ble High Court. Perusal of the same shows that opponent Nos.1&2 have not taken steps as directed by the Hon’ble High Court and hence, they could not start the construction. Within last 6to7 years, rate of the properties in the area has increased in 3to4 folds. The complainants had produced copy of Ready Reckoner specifying rates of the flat in the vicinity of the building to be constructed and considering the area, it comes to `87,30,653/-. From the aforesaid facts, we come to the conclusion that there is deficiency in service on the part of opponent Nos.1&2 and unfair trade practice also and the complainants are entitled for the flat of carpet area admeasuring 625 sq.ft. as per the agreement. Opponent Nos.1&2 should provide alternate flat of carpet area admeasuring 625 sq.ft. in the same vicinity or to pay an amount of `87,30,653/- to the complainants. We hold accordingly and pass the following order :- -: ORDER :- 1. Complaint is allowed. 2. Opponent Nos.1&2 are directed to provide an alternate flat admeasuring 625 sq.ft. carpet area in the same vicinity or to pay an amount of `87,30,653/- to the complainants. 3. Opponent Nos.1&2 should pay costs of `25,000/- to the complainants and bear their own costs. 4. Opponent Nos.1&2 should comply with the order within a period of 30 days, failing which this amount will carry interest @ 12% p.a. till realization of the amount. 5. Copies of the order be furnished to the parties. Pronounced Dated 14th September 2012. |
