Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
It is the case of alleged deficiency in service on the part of the builder/developer-M/s.Anamika Real Estate Pvt. Ltd. (hereinafter referred to as ‘builder’) for not handing over the flats agreed to be purchased by the complainant-Mrs.Daxa P. Khandhar for use of herself and her family members. In all four combined flats bearing Nos.B-201&202, B-401&402, B-601&602 and B-1301&1302 from a building known as “Benzer Tower”, behind Bhor Industries, Next to Asha Nagar, Borivali (East), Mumbai, were agreed to be purchased by the complainant. Each combined flats is having area of 1475 sq.ft. (built-up) and each combined flats is agreed to be sold for `15 Lakhs. Agreements were accordingly entered into between the parties. It is further alleged by the complainant at the inception itself that the complainant paid all the consideration. However, possession of the flats is not delivered to the complainant, as agreed. It is also alleged that in the meantime, the builder has inducted third party purchasers, namely; opponent Nos.4,5&6. Opponent No.3 is an Ad-hoc Committee of the flat purchasers. Before the arguments were advanced, it is submitted on behalf of the complainant that she did not want to prosecute the consumer complaint as against opponent Nos.3to6 and filed pursis accordingly. Thus, the complaint is pressed as against the builder and its Director-Mr.Nitin Mehta only.
2. The builder (opponent No.1) and its Director-opponent No.2-Mr.Nitin Mehta filed their joint written version dated 09/10/2010 and resisted the consumer complaint. According to them, the agreements with the complainant stood terminated as per their clauses Nos.9, 11 & 12. It is also alleged that the complainant is an investor and as such she is not a consumer. Point of limitation is also raised. The consideration received is not specifically denied by them. They tried to support and save the rights of subsequent purchasers-opponent Nos.4to6 by claiming them as bonafide purchasers for value. Complainant filed her own affidavit dated 23/09/2010 in evidence. Opponent-builder failed to file any affidavit in evidence as per provisions of Section 13(4) of the Consumer Protection Act, 1986.
3. In the instant case, the builder came with the case of termination of contract as per certain clauses of the agreements, supra. These agreements are not placed before us. Copy of agreement produced by the complainant is also incomplete document and particularly, pages Nos.6to27 are missing. Date of termination of said agreements is not mentioned and it is also not established that said termination notice is served upon the complainant. Therefore, contention of the builder that they validly and legally terminated the agreements, cannot be believed.
4. As earlier pointed out receipt of total consideration amount is not specifically denied by the builder. They only refer to the possibility that it was highly improbable that the entire consideration is paid in lump sum at the inception itself, but in view of material placed on record and particularly, the contention of the complainant-Mrs.Daxa Khandhar, we find the complainant did establish the fact of payment of entire consideration of each combined flats to the builder.
5. In the instant case, admittedly, the builder had inducted subsequent purchasers for value. In a consumer complaint, we could not balance the equities between the first purchaser and subsequent purchasers. Moreover, such issue does not survive before us since the complainant do not prosecute these subsequent purchasers. Opponent No.4-Adhoc Committee is not a legal person. The complainant by filing pursis also did not want to prosecute the complaint against it.
6. However, the scenario remained unchanged and of which the complainant is well aware. In view of parting with the possession of the flats, it is now very difficult and not possible to get back the possession of the flats (in a consumer complaint). But, the deficiency in service on the part of the builder is well established since they failed to hand over possession of the flats. Even, if their case of termination of the agreements, for the sake of argument, is upheld; still deficiency in service on the part of the builder for not refunding the consideration paid is also well established. In the given circumstances, we find awarding compensation equivalent to the refund of consideration along with interest @ 18% p.a., as claimed, would meet the ends of justice. Therefore, relief in terms of clause 18(a) of complaint can be allowed.
7. The complainant also claimed additional compensation of `5 Lakhs. However, no evidence is led to justify the same. Interest awarded also covers suitably compensate the complainant in the given circumstances. Under the circumstances, claim of `5 Lakhs for mental agony and harassment, inconvenience is not granted by way of additional/separate compensation.
8. As earlier recounted, the builder tried to raise issue of limitation. But we find here that since possession was not given and (on alleged termination) the consideration paid is yet to be refunded, the cause of action remains continuous and therefore, objection of limitation does not survive. Similarly, as far as issue raised by the builder that the complainant is an investor does not survive in view of material placed on record, particularly, because the builder prima facie, failed to establish its such case.
9. For the reasons stated above, we hold accordingly and pass the following order :-
-: ORDER :-
1. Complaint is partly allowed.
2. Opponent No.1-M/s.Anamika Real Estate Pvt. Ltd. & opponent No.2-Mr.Nitin Mehta jointly and severally do pay `64,36,520/- along with interest @ 18% p.a. from the date of complaint till its realization.
3. Complaint as against opponent Nos.3to6 stand dismissed.
4. Opponents to bear their own costs and opponent No.1-M/s.Anamika Real Estate Pvt. Ltd. & opponent No.2-Mr.Nitin Mehta jointly and severally to pay `25,000/- as costs to the complainant.
5. Copies of the order be furnished to the parties.
Pronounced
Dated 29th February 2012.
