PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding the deficiency in service and unfair trade practice against the Opposite Parties as the Opposite Parties have cancelled the booking of the Flat No.A/703 on frivolous ground of non-payment of the amount.
2) The facts of the case as stated by the Complainant are that the Opposite Party No.1 is a proprietary concern and it is in the business of construction of buildings. It is a promoter and developer. Opposite Party No.2 is its proprietor. In the month of July, 2009, the Complainant approached the Opposite Parties at proposed project of N.G. Sterling Building, at Mira Road (E). Believing the representation of the sales staff of the Opposite Parties, the Complainant booked flat No.703, A-Wing, 7th floor of the N.G. Sterling building for total consideration of Rs.23,66,000/-. The Complainant paid an amount of Rs.51,000/- to the Opposite Party by cheque as an earnest money. Balance consideration was to be paid on demand by the Opposite Parties as per progress of the work of the building upon production of architect’s certificate. The Opposite Party issued allotment letter dtd.28/07/09 in favour of the Complainant and he was called upon to make payment of Rs.3,03,900/-. Accordingly the Complainant paid this amount vide cheque dtd.03/08/09 (Receipt dtd.30/07/09).
3) The Complainant took steps for registration of Agreement for Sale in February, 2010, but Opposite Parties started avoiding the registration of the Agreement for Sale. He has expended approximately Rs.1 Lac on his visit to India for registration of this Agreement but because of non cooperation of the Opposite Parties he could not get the registration of the Agreement of Sale of the above said flat. Thereafter, in October, 2009, the work at site of the building was stopped for about 7 months. In April, next year this work was resumed. The Complainant tried to register the Agreement for Sale but the Opposite Party delayed the same. The Complainant wished to make further payment to the Opposite Party for the flat. He also wanted to avail the loan facility for the purchase of the said flat. However, in absence of registered Sale Deed, he could not avail the same. Therefore, it was prayed by the Complainant that the Opposite Party be directed to execute the Sale Deed.
4) On 23/04/2010, the Complainant received the letter dtd.21/04/2010 from the Opposite Party demanding Rs.1,50,850/- towards plinth work. In fact the Complainant had made payment towards plinth. Even he had made excess payment. In order to avoid any dispute, the Complainant sent a cheque of Rs.1,35,000/- drawn on H.S.B.C. Bank and another cheque drawn on Oriental Bank for Rs.15,000/- both dtd.25/04/2010. The family members tried to give the above cheques to the Opposite Parties but Opposite Parties refused to accept the cheques and also not cooperated to register the Sale Deed. Ms. Komal, the staff of the Opposite Parties told the Complainant that the Opposite Party No.2 had instructed the staff not accept payment from the purchasers of the building.
5) The Opposite Party vide their letter dtd.05/05/2010 informed the Complainant that “in absence of the non-payment under agreement, the flat stands cancelled.” However, the Complainant had been offered payment within 15 days from the demand letter dtd.21/04/2010 but the Opposite Party did not accept the cheques. It is further stated by the Complainant that after receipt of the cheques dtd.25/04/2010 alongwith letter dtd.21/05/2010, the Complainant was informed by the Opposite Party that since November, 2009, the property prices have increased. They have decided to cancel the booking made prior to November, 2009. If the Complainant wants to save booking of flat No.703, then he should either make payment of entire balance consideration amount of Rs.20,11,100/- within 15 days or make fresh booking, at present property rates. The Complainant showed his inability.
6) It is also alleged that the Opposite Parties have not taken any steps to form Cooperative Society of the flat purchasers as per MOFA and did not maintain the separate account. It is also alleged by the Complainant that as per MOFA, the promoter, before accepting advance payment or deposit, to enter into agreement and agreement to be registered and such Agreement for Sale shall be in prescribed form. In spite of rigorous efforts on his part, Opposite Parties did not register the agreement.
7) The Complainant further stated that he came to know that Opposite Parties have issued similar letters to several other flat purchasers in N.G. Sterling building. It is further stated that the cheques dtd.25/04/2010 were returned by the Opposite Parties alongwith their letter dtd.24/05/2010 and cancelled the booking of flat No.A/703.
8) It is submitted by the Complainant that he has made the payment as per the demand of the Opposite Parties and also ready to pay the further payment, but Opposite Parties did not follow the provisions of the MOFA and thus, indulged in the unfair trade practices.
9) It is alleged by the Complainant that thus, the Opposite Parties demanded the money when it was not due and thereafter they have not accepted it when offered by the Complainant. This is the gross deficiency in service on their part as well as they have indulged into unfair trade practice as they have not registered the Agreement for Sale even after accepting payment from the Complainant.
10) The Complainant in para 31 of the complaint has made the following statement -“The Complainant has not made out case for not registering the Agreement for Sale and canceling the allotment.” This is an absurd statement. It is not known, what the Complainant want to convey from this statement (sentence).
11) It is alleged by the Complainant that due to the deficiency in service and unfair trade practice by the Opposite Parties, the Complainant has undergone severe tension, mental agony and trauma.
12) It is further alleged that till 21/04/2010, Opposite Parties have constructed the building in question upto plinth level and the payment was done by the Complainant till this stage of the construction. On 21/04/2010 this amount was not due and payable. Therefore, it is prayed by the Complainant that the Forum to declare that the Complainant was not liable to make this payment as per requisition made by the Opposite Parties by letter dtd.21/04/2010 as it is bad in law. Similar is the case of letters of the Opposite Parties dtd.24/05/2010 & 05/05/2010.
13) It is further prayed by the Complainant that the Opposite Parties be restrained permanently from creating third party interest in respect of Flat No.A/703, N.G. Sterling Building. It is also prayed that the Opposite Parties be directed to accept the payments from the Complainant as per slab wise progress in the construction of the N.G. Sterling building. The Opposite Parties are also to be restrained from charging any interest on delay payment as the Opposite Parties have themselves refused to accept the payment.
14) The Complainant has also prayed for special damages, damages for travelling, mental agony, cost of the complaint, etc.
15) In para 43 of the complaint, the Complainant has stated that the Complainant values his claim at Rs.7,50,000/- for the purpose of Court Fees & jurisdiction.
16) The Complainant has attached the xerox copies of the following documents in support of his complaint –
Earnest money receipt, Letter of the Opposite Party dtd.28/07/09, Receipt dtd.30/07/09, Letter of the Opposite Party dtd.21/04/2010, Cheque dtd.25/04/2010, Letter dtd.05/05/2010 from Opposite Party to the Complainant, Letter dtd.21/05/2010 from the Complainant to Opposite Party, Letter dtd.24/05/2010 from Opposite Party to Complainant.
17) The complaint was admitted. Notices were served on the Opposite Parties. The Complainant has also filed an interim relief application praying that the Opposite Parties, their servants, officers, agents and all persons claiming through them be restrained from creating third party interest in respect of Flat No.A/603, N.G. Sterling, Mira Road (E), Dist. Thane. It is also prayed that the Opposite Parties be directed to execute Sale Deed Agreement for Sale in respect of the Flat No.A/703, N.G. Sterling and also cooperate for registration of the same before the concerned authorities.
18) Show-cause Notice of the above said application for interim relief was also served on the Opposite Parties but Opposite Parties did not file their say to third application. Hence, an interim order was passed restraining the Opposite Parties from creating third party interest in Flat No.A/703. (the Complainant has wrongly mentioned the Flat No.A/603 instead of A/703 in the above said application seeking interim relief).
19) The Opposite Parties filed their written statement wherein they denied each and very allegation mentioned in the complaint. It is specifically stated that the Complainant being in Dubai has neglected to perform his part in the Agreement and he ahs not come to India for registration of the Agreement nor responded to any call/demand letter of the Opposite Parties. By letter dtd.28/07/2009, the Complainant was called upon to execute the Sale Agreement and pay the stamp duty but he did not respond to the said letter and belatedly misinterpreted. It is also clarified by the Opposite Parties that the plinth level construction was completed till 25/09/09. This can be seen from letter dtd.01/10/09. The Complainant has falsely stated that the plinth level work was done on or about 21/04/2010. They also denied that the Complainant sent or offered two cheques of Rs.1,50,000/- towards the demand letter of the Opposite Parties. It is the contention of the Opposite Parties that due to non-payment & non-response of the Complainant the booking was cancelled.
20) It is further contended that by the Opposite Parties that the Complainant has not even paid the stamp duty for registration of the Agreement. The Opposite Parties have admitted that they sent a letter dtd.28/07/09 demanding Rs.3,03,900/- to be paid on or before 08/08/09 and Rs.1,00,910/- before 24/07/09 and on payment of these amounts the Complainant can proceed for Sale Agreement. The plinth work was completed on or before 25/09/09 and the amount due was not paid by the Complainant till 21/04/2010. Therefore, a letter was issued on 24/07/09 wherein time of 15 days was given. But as the payment was not received, Opposite Parties cancelled the booking by its letter dtd.05/05/2010 for that the demand letter for Rs.1,50,850/- was sent to the Complainant on 21/04/2010 after a long waiting but the Complainant did not pay the said amount. Hence, his booking was cancelled.
21) Finally the Opposite Parties have prayed that the Complainant is not entitled to any relief hence, no relief be granted to the Complainant.
22) We heard the Ld.Advocates for both the parties and our findings are as follows –
The Complainant has booked Flat No.A/703, in 7th floor, N.G. Sterling building, Mira Road for total consideration of Rs.23,66,000/-. He paid Rs.51,000/- to the Opposite Parties as an earnest money. It is the contention of the Complainant himself that the value of the subject matter i.e. Flat No.A/703, is Rs.23,66,000/- which is more than Rs.20,00,000/- the pecuniary limit of this Forum as per Section 11 of the Consumer Protection Act. The subject matter of this case is the Flat No.A/703 the value of which is Rs.23,66,000/-, which is beyond the pecuniary jurisdiction of this Forum. In para 43 of the complaint the Complainant has mentioned the value of the claim is Rs.7,50,000/-. The basis of this valuation is not explained by the Complainant. Hence, the value of the claim cannot be taken as Rs.7,50,000/-. The consumer dispute is regarding the above said flat No.A/703, the value of which is Rs.23,66,000/-Section 11 of the Consumer Protection Act, is reproduced as below –
(1) Subject to the provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the vale of the goods or services and the compensation, if any, claimed [[does not exceed rupees twenty lacks]].
23) Therefore, taking into consideration, “the provision of the above Sec.11 and the facts of the case, this Forum does not have the pecuniary jurisdiction to entertain this complaint. In view of this other issues do not survive. We hold accordingly and pass the following order -
O R D E R
i. It is hereby directed that, for want of pecuniary jurisdiction, the complaint bearing No.200/2010 be returned to the
Complainant, for presenting the same before the Consumer Fora, having jurisdiction.
ii. In given circumstances, there shall be no order as to costs.
iii. Certified copies of this order be furnished to the parties.
