Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member
Both these complaints have been filed by the complainant-Yusuf Ismail Agwan alleging deficiency in service on the part of opponents-M/s.Rockline Constructions Company. According to the complainant he was originally residing at B-2, Jamuna Amrut Co-op. Housing Society, Near 24 Karat Multiplex, S.V. Road, Jogeshwari (West), Mumbai-400 102. He was in dire need of larger residential accommodation due to increase in size of the family and therefore, he approached the opponents in last week of January 2006, visited the site of opponents where only piling work was going on. Representative of the opponents informed him that the construction was going on and possession of the flat would be given on or around three years period. Complainant then decided to purchase two flats each of two bed room, hall & kitchen. Consumer complaint No.202/2011 has been filed in respect of flat No.1407 and consumer complaint No.203/2011 has been filed in respect of flat No.1408. According to the complainant, after much negotiation he had booked two flats with opponents. Representative of the opponents told the complainant to pay 15% of said two flats as earnest money. Thus, as per request of the opponents on 28/02/2006 he booked flat Nos.1407 & 1408 on 14th floor, ‘C’ wing, each flat having carpet area 769 sq.ft. in building known as “RoyalHeights”, Near Milat Nagar, Andheri (West), Mumbai for agreed consideration of `42 Lakhs for each flat. The complainant thus paid amount of `13 Lakhs by cheque No.58703 dated 28/02/2006 in favour of opponents. Said amount included 15% amount for said flat No.1407 as well as another flat No.1408. The complainant submitted that booking amount was given on 28/02/2006 but opponents avoided to issue allotment letter to the complainant. Representative of the opponents falsely assured not to worry about allotment letter. The complainant also found that construction of the opponents was going on in a very slow speed, but complainant believed in reputation of the opponents and kept following him for issuance of allotment letters, it ultimately issued to him on 08/06/2006 thereby confirming that the complainant has being allotted above mentioned flats. Said allotment letter is at Exhibit-B of each complaint. The complainant pleaded that after issuance of confirming allotment letter dated 08/06/2006 complainant was specifically informed that balance payment will have to be made as per progress of the work and that builder will be issuing demand letters as the progress proceed. Opponents did not send any letter informing about progress of the construction, but in the second week of February, 2008 complainant received letter dated 07/02/2008 from office of the opponents that work of the opponents was stopped because of dispute between M/s.Poonam Builders and others and due to legal problems, opponents were not in a position to continue with the construction work and therefore, under the circumstances, complainant could collect the amount paid by him together with statutory interest and in the event complainant decide to continue with the opponents, opponents shall not be responsible to pay any claim or payment made by the complainant in that behalf. Exhibit-C is the said letter dated 07/02/2008. Complainant submits that opponents had thus given option to the complainant either to continue with him with the project or to take the amount back cancelling the booking. But complainant decided to continue with the project and simply informed the opponents to take note about change of his address by letter dated 29/02/2008. He waited for the opponents to continue with the construction and to complete it. The complainant addressed a letter dated 18/02/2011 to the opponents and tried to deliver said letter to his representative by hand delivery but the letter was not taken by the person sat at the site of the opponents. Ultimately, complainant sent letter dated 18/02/2011 by registered post to the opponents regarding his grievances about non-completion of the project. He further addressed another dated 23/02/2011. The complainant had in the said letter placed true and correct facts and mentioned therein that he would have required to be in regular touch with him for forwarding payment in respect of two flats as per progress of the construction. Thus, according to the complainant, he has not committed any breach of the agreement and he was willing and ready to make payment for purchase of said flats. The complainant however, received a letter from opponents through their Advocate for the first time raising false contention that no legal rights of any nature have been come into existence and allotment letter was an inchoate arrangement and thereby, opponents dishonestly made an attempt to back out from the agreement. Said letter is marked as Exhibit-G. The complainant pleaded that in spite of false and frivolous letter dated 23/03/2011 sent by Advocate of the opponents, he wrote another letter dated 11/04/2011 and put correct facts. Opponents have not demanded any money and he was looking for the progress being made at the construction work. Opponents sent another letter through their Advocate dated 28/04/2011 raising false and frivolous contentions that complainant was trying to extract money from opponents by pressurizing them. The complainant denied that he had ever made any default in payment. He had booked flats on 28/02/2006 and he had received letter in February 2008 that the construction was stopped and he may withdraw or continue with the project and he had opted to continue with the project of the opponents. Opponents remained conveniently silent and did not inform the complainant about payment he was required to make and he did not send any demand notice to the complainant and had raised false and frivolous letters. He therefore prayed that both complaints should be allowed and opponents should be directed to construct flat Nos.1407 & 1408 situated in C wing on 14th floor, each flat having carpet area of 769 sq.ft. in the building known as “Royal Heights”, Lokhandwala Link Road, Near Milat Nagar, Andheri (West) and to give vacant and peaceful possession of the same to the complainant. He also prayed that opponents should be directed to execute agreement of sale in respect of both the flats in favour of the complainant with two car parking. He also prayed that he will be given compensation of `1,50,000/- towards mental harassment since his money has been withheld by the builder and he had not started construction. He also prayed for `1 Lakh towards the amount incurred by the complainant for residing in leave and licence basis.
2. Opponents filed written version and contested the complaints. Opponents pleaded that there is no service being provided by the opponents to the complainant as falsely contended by the complainant. Opponents also took up the plea that said complaints are barred by limitation under Section 24-A of Consumer Protection Act, 1986, because they had cancelled booking of the complainant on 07/02/2008 and present complaints have been filed in July 2011. So, it was not filed within two years nor complaints are supported by any delay condonation application. Opponents pleaded that complainant had not made further payments. Therefore, they were silent after giving booking amount. Opponents therefore pleaded that they had cancelled the booking of the complainant on 07/02/2008 itself and asked him to take back the amount, but complainant did not take back the amount and filed these false and frivolous complaints to extract money.
3. Both the parties filed affidavit evidence and documents. They also filed brief notes of arguments. We heard submissions of Advocate Mr.Manoj Mhatre for the complainant and Advocate Mr.S.B. Prabhawalkar a/w. Mr.Atul Daga, Mr.Amit Mehta & Mr.G. Sabharwal i/b. M/s.Mahimtura & Company for the opponents.
4. Along with affidavit, the complainant has filed allotment letter and some documents have been filed which includes cheque of `13 Lakhs given to opponents. There is allotment letter at Exhibit-A in each complaint which confirms that opponents allotted a flat No.1407 and 1408 having 769 sq.ft. carpet area for total consideration of `42 Lakhs each and complainant paid `13 Lakhs to the opponents and balance as per progress of the construction. Then there is a letter sent by the opponents to the complainant at Exhibit-C dated 07/02/2008 informing that there was dispute between the M/s.Poonam Builders and others and they were unable to procure relevant permission as a result of which they are facing delays to commence the work of their project. Hence, they requested the complainant to come and collect the amount paid by him with statutory interest after seeking prior appointment. In the event he decided to continue with them they shall not be responsible to pay any interest on such amount nor shall be responsible for any claims or demands made by them on that behalf. So, this letter is not a cancellation letter, per se, this letter gives option to the complainant either to continue with the project with conditions stipulated or withdraw from the project by taking back his money with statutory interest. The complainant sent letter dated 29/02/2008 and informed the opponents about change of address for further communication. He also gave email address. Then there was letter dated 18/02/2011 sent by complainant to the opponents that he had paid total `13 Lakhs towards flat Nos.1407 & 1408 in C wing allotted to him. He informed the opponents that they had not commenced the construction nor they had informed him about payments to be made and he called upon the opponents to send schedule of payment of every stages of construction to enable him to make payment accordingly. To this, letter was sent by Advocate of the opponents, who told the complainant that agreement was an inchoate agreement and they could not continue the construction of the said flats and as such he requested the complainant to meet Mr.Thomas, Account Manager of their client at their office and collect principal amount with interest calculated from date of payment till 07/02/2008. It is this letter which prompted complainant to file these complaints. These exchanges of letters are admitted by both the parties. Thus, we are finding that there is a complainant who has booked flat Nos.1407 & 1408 with the opponents in C wing building to be known as “NG Royal Heights”, Andheri (West) and he had paid `13 Lakhs towards flat Nos.1407 & 1408. The flats have not been constructed and moneys have been utilized by the opponents for their other project and now complainant has been told to take back `13 Lakhs from their Account Manager Mr.Thomas with interest till 07/02/2008. Thus, we are finding that this a clear-cut case of deficiency of service on the part of opponents.
5. Opponents had accepted the amount of `13 Lakhs from the complainant in the year 2006 and till 2011 neither they had constructed the flats nor they had demanded any money informing the complainant the progress made in the construction. The allotment letter itself stipulates that payment should be made by the allottee as per progress of the construction. Since there was no letter from the opponents, complainant waited for receipt of letter informing progress made in the construction of the building. When nothing is happened in 2008 one letter sent by the opponents giving option to the complainant either to withdraw or to continue with the project though delayed, but in that case he was cautioned that if he continue with them, they will not be liable to pay extra interest on the amount paid by him. The complainant continued with them in the hope that they would construct the building and he would get flats, but nothing happened and in 2011 opponents informed the complainant by letter dated 23/03/2011 that he should take back his moneys with interest @ 12% p.a. as they could not complete the construction. In the light of these facts, complaints have been filed alleging deficiency in service on the part of opponents. There is deficiency in service on the part of opponents and there is no doubt about it. But before proceeding further, we have to address on the point of limitation.
6. It was contended by Advocate Mr.Prabhawalkar that complaints as filed are absolutely barred by limitation because his client by letter dated 07/02/2008 had called upon the complainant by sending letter that construction of the building had been stopped because of dispute between M/s.Poonam Builder and others. M/s.Poonam Builders were facing legal dispute and they were unable to procure permission and therefore, they could not commence construction of the building in near future. Under the circumstances, the complainant was requested to come and collect the amount paid by him together with statutory interest seeking prior appointment and in the event he decided to continue with them they shall not be responsible to pay interest nor any claim made by him on such behalf. Since this letter is giving option to the complainant either to continue with the project or to withdraw from the project by taking back his money with statutory interest, this letter cannot be said to be a letter to refuse to construct the building. They had simply mentioned that they were facing some difficulties and it would take long period to complete the construction. In this view of the matter, complainant continued with the project, but ultimately he received letter dated 23/03/2011 sent by Advocate of the opponents asking complainant to collect his money back from Account Manager Shri Thomas i.e. the principal amount with interest @ 12% p.a. till 07/02/2008. It is this letter which gave cause of action to the complainant to file consumer complaints. In the circumstances, we hold that complaints as filed by the complainants are within limitation and there is no merit in the contention of Advocate Mr.Prabhawalkar that complaints as filed are barred by limitation.
7. Now complainant has asked for two reliefs, one relief is for direction for possession of the flats and another direction to opponents to execute agreement of sale in respect of flats allotted to him as per allotment letter dated 08/06/2006. In our view both these prayers could be allowed. In the circumstances, we are of the view that these complaints can be allowed partly and opponents can be directed to give vacant possession of flat Nos.1407 & 1408 of C wing, each flat having 769 sq.ft. carpet area in a building known as “NG Royal Heights”, Andheri (W), Mumbai, on complainant tendering remaining balance amount of consideration in respect of both the flats. Possession shall be given as soon as opponents obtained Completion Certificate and Occupation Certificate from the local authority. Opponents will have to be directed to execute agreement of sale in respect of both the flats in favour of complainant. Agreement of sale shall be executed within one month from the date of receipt of the order. Since project is delayed considerably, complainant is entitled to get compensation of `1 Lakh in each complaint for mental harassment he suffered right from 2006 till today. Besides he is also entitled to `25,000/- as costs in each complaint. Besides that in our view complainant will have to be given interest on the amount of `13 Lakhs (since he has paid combined booking amount of `13 Lakhs for flat Nos.1407 & 1408). Complainant is entitled to get interest @ 6% p.a. on the amount being utilized by the opponents from the date of payment till handing over possession of both the flats by the opponents. Hence, we pass the following order :-
-: ORDER :-
1. Both consumer complaints are partly allowed.
2. Opponents are directed to give vacant and peaceful possession of the flat Nos.1407 & 1408 (admeasuring 769 sq.ft. carpet area of each flat) situated in “C” wing on 14th floor in the building known as Royal Heights Lokhandwala Off Link Road, Near Milat Nagar, Andheri (West), Mumbai-400 058 on complainant tendering remaining balance amount of consideration in respect of both flats. Possession of the flats shall be given as soon as opponents obtained Completion Certificate and Occupation Certificate from the Local Authority.
3. Opponents are further directed to execute Agreement of Sale in respect of both the flats bearing Nos.1407 & 1408 in favour of complainant. Agreement of Sale shall be executed within one month from the date of receipt of the order.
4. Opponents are further directed to pay interest @ 6% p.a. on the amount `13 Lakhs to the complainant (Complainant paid this amount jointly for both flats) from the date of payment till handing over possession of both the flats by the opponents.
5. Opponents are further directed to pay `1 Lakh to the complainant as compensation in each complaint for mental harassment suffered by the complainant right from 2006 till today.
6. Opponents are also directed to pay `25,000/- in each complaint to the complainant towards costs of litigation.
7. Copies of the order be furnished to the parties.
Pronounced
Dated 11th October 2012.
