PRESENT:-
Complainant absent
Opponents by Adv. Mohit Bhansali
ORDER
(Per- Mr. S. S. Vyavahare, Hon’ble President.)
1) The complainant has filed this complainant under Section 12 of the Consumer Protection Act, against the opponents for getting compensation and unfair trade practice on its part.
2) Facts giving rise to the present complaint in short are as under.
3) Opponent No.1 is company registered under provisions of Company Act having its office on the address mentioned in the complaint. Opponent No. 2 to 6 are the directors of opponent No.1. The opponent No.1 deals in construction business.
4) The complainant resides at Govandi, Mumbai. It is the contention of the complainant that, the opponents were carrying out construction project at Village- Mankhurd, in pursuance to their agreement with Roma Banjara Tanda C.H.S. to develop their property under Slum Redevelopments Authority. As per the said agreement the opponents were to build salable building. It is the contention of the complainant that since he was in need of residential flat he has agreed to purchase flat No. C-201 admeasuring 405 sq. feet carpet area for Rs.9,72,000/- in said building. The complainant has also paid advance amount. It is the contention of the complainant that he has also paid Rs.2,91,000/- towards 15% of cost price since it was insisted by the opponents. Accordingly the registered agreement of sale was also executed. However, thereafter the opponent though agreed to issue NOC so as enable complainant to obtain bank loan has avoided to issue NOC which the complainant was requiring for his loan proposal. With the result though the complainant has applied for loan of Rs.6,00,000/- were also sanctioned to him for want of NOC he could not withdraw the loan amount. Thereafter inspite of repeated request the opponent did not issue NOC as required by the complainant and calling upon the complainant to pay further installment of the flat. Further the opponents had informed the complainant for creating third party interest in his flat. According to the complainant the alleged act on the part of the opponents amounts to unfair trade practice. Therefore complainant has filed this complaint and claimed for getting direction to the opponents to issue NOC and to restrain the opponents for giving possession of this flat to third party. The Complainant also prays for compensation of Rs.5,93,000/- and expenses of the complaint.
5) The opponents have resisted the complaint by filing their written statement wherein they have contended that complainant’s complaint is false, frivolous and not based on true facts. The opponent have denied all adverse allegations made by the complainant in respect of unfair trade practice and have stated that the complainant has filed this false complaint in order to blackmail the opponents. While admitting the booking of residential flat as well as consideration of said flat the opponents categorically deny that the construction they were carrying out was on free sale basis. They also deny that the complainant was induced by them for purchase of said flat. The opponents also deny payment of any advance by the complainant. They also deny that they were not ready to execute agreement of ale unless 15% of price of the flat has been paid by the complainant. According to them they never compelled the complainant to pay 15% of price of the flat. The registered agreement of sale executed by them to the complainant in respect of his flat is not denied by the opponents. According to the opponents they were not aware of the fact whether complainant was to raise a loan for purchase of the flat. They also deny that they have agreed to issue NOC to complainant in respect of his loan proposal. The opponents also deny that only after the executing of agreement the complainant has applied for getting loan. According to opponent though as per the terms and condition of the agreement of sale the possession of the flat was to be handed over on or before Augst-2006. It was agreed between the parties that in case of any delay which is beyond the control of opponents the opponents are not liable for consequences. The opponent further states that, due to various reasons which are the beyond the control of opponent the construction was delayed. However, complainant never took any objection for he same. However, the complainant has made consistent default in making further payments towards the price of the flat as per agreement. Therefore repeatedly complainant was called upon to pay remaining installments. Inspite of giving sufficient chances since the complainant could not pay the installments; the opponent had left no alternative than to cancel the booking of the flat of the complainant. While doing so the opponents also offered Rs.2,91,000/- to the complainant. However, even thereafter as per the request of the complainant again time was given to the complainant to make the further payment. However, since the complainant could not pay the installments the booking of the complainant was terminated. Therefore there is no unfair trade practice on the part of the opponents. Hence, the opponents pray to reject the complaint.
6) On respective contentions of the parties following points arise for our considerations. Our findings are recorded against the same.
POINTS
- Does the complaint prove that the opponent indulged in unfair trade practice in respect of transaction of his residential flat at Mankhurd? Not proved.
- Whether complainant is entitled to get relief & compensation? No.
- What order? As per final order.
REASONS
Admitted Facts
7)The booking of flat No. 201 by the complainant in a construction project of the opponent at , the cost of the said flat and Rs.2,91,000/- paid by the complainant towards the price of the flat is not disputed. It is also not disputed position that on 10/08/2006 the registered agreement of sale was also entered into between complainant and opponent in respect of said flat. It is not disputed position that the opponents have called upon the complainant to pay further installments of said flat as mentioned in Schedule-2 of the agreement. It is not disputed position that application for interim relief made by the complainant for restraining the opponent from creating third party interest in the said flat has been turn down by this forum order dated 22/09/2009.
8)The complainant after filing the complaint and application for interim relief did not filed his evidence affidavit, written arguments. The application for interim relief seems to have been hotly contested by the complainant. However, since, said application came to be rejected because of third party interest already created by the opponents and therefore perhaps the complainant seems to have lost his interest in the complaint.
9)As against this opponent in support of their written statement have filed their evidence affidavit, written arguments. At the time of oral arguments also the complainant could not make present. Therefore the arguments of the opponent counsel were heard.
10)After going through contents of complaint first of all it is seen that complaint who has admittedly paid Rs.2,91,000/- towards the price of the flat has also entered into agreement of salethat too with registered documents. Thereafter complaint could not make any payment towards the price of the flat. To justify the nonpayment of further installments the complainant has tried to state in the complaint that, the opponents who have agreed to give NOC to the complainant so as enable him to raise bank loan has failed to issue NOC. It is the contention of the complainant that he has applied to the Bank of India for getting loan. The sanctioned letter issue by Bank of India for sanctioning a loan of Rs.6/- filed by the complaint does not show anywhere that, said sanction of loan was subject to submission of NOC from the opponents. Clause No. 11 of the said letter shows the list of the documents which Bank of India has directed the complainant to produce. Clause No. 11 does not show even remotely that the bank has asked the complainant to produce the NOC from the opponents. Even the complainant has not produced any documents to show that NOC from the opponent was condition precedent for raising loan. Even there is no letter filed by the complainant from Bank of India stating that for want of NOC from opponent they are cancelling the loan granted to the complainant. Moreover, the agreement of sale in respect of flat in dispute also does not show anywhere the opponent has agreed to issue NOC to the complainant so as enable him to raise bank loan. In our considerate opinion the sanction letter issued by Bank of India that itself goes to show that Rs.6,00,000/- were sanctioned to the complainant and therefore the story put forth by the complainant that for want of NOC he could not raise the further amount is too hard to accept.
11)As against this the contention of opponent in written statement that the complainant was consistent defaulter for payment of installments has been fortified by the request letter of the opponent to pay further installment of flat as per schedule-2 of the agreement, cancellation letter of the flat and refund of Rs.2,91,000/- to the complainant. Moreover, the contention of the opponent that, of cancellation of booking of complainant’s flat on 25/10/2006 the complainant has again approached them and has assured to make payment and therefore opportunity was given to him on 12/12/2006, 12/01/2007 to pay further installments. However, since the complainant could not pay the installments the booking of the complainant was again cancelled on 12/11/2007. Said contention of the opponent has gone unchallenged as complainant did not bother to his evidence affidavit and written arguments. Moreover, it is also seen from record that, the opponent has already created third party interest in the flat of the complainant which has been fortified by agreement of sale executed by the complainant and one dated 22/01/2009. The agreement of sale executed between complainant and opponents show that failure on part of purchasers to make further payment of the flat then the flat owner has right to terminate the booking of the flat purchasers. Therefore the cancellation of booking and creation of third party interest in the suit flat cannot be deprecate especially when the complainant himself did not bother to file his evidence affidavit also.
12)Though an attempt has been made by opponent to show that the booking of flat by the complainant was for the investment purpose and therefore he does not come within the definition of consumer, we do find any substance in these arguments since the pleading of written statement is totally silence about this submission. Therefore we do not accept eh same.
13)Since the complainant himself remained absent and did not file his evidence affidavit, so also the cancellation of booking of the complainant’s flat cannot be depreciated we do not find any unfair trade practice on the part of opponents. We therefore we decide point No. 1 & 2 in negative and proceed to pass following order.
ORDER
Complaint is dismissed.
No Order as to cost.
