Filed on : 04/03/2008 Decided on : 29/05/2010 Duration : 02 year 02 months 25 days BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM COLLECTOR OFFICE, ROOM NO. 214, IIND FLOOR, THANE) Com no. 496/2007 Shri Madan Gajanan Waghchawde R/at. A/104, Swastik Apartment, Nr. Shivshena Shakha, Thane 400 601. Com. No. 497/2007 Shri. Sandeep Prabhakar Guram Smt. Vijaya Prabhakar Guram R/at 903, Abhishek Heights Opp. C.K.P. Hall, Kharkar Ali, Thane(W) 400601. Com. No.498/2007 Shri. Umesh Raosaheb Pawar Patil Smt. Pratibha Umesh Pawar Patil R/at 102, Ganesh Darshan Eduljee Rd., Charai, Thane(W) 400 601. Com. No. 499/2007 Shri. Rajesh Yeshwant Patil Through Power of attorney Shri. Yeshwant Baliram Patil R/at Block no.14, New Police Line no.5, Opp. Siddhi Hall, Thane(W) 400 601. Com. no. 500/2007 Shri. Anil Madhukar Laul Smt. Kavita Anil Laul R/at. 1-B-1, Adarsha Nagar, Kalbad Rd., Thane(W) 400 602. Com. No. 501/2007 Shri. Shriram Yeshwant Nijsure Shri. Yashwant Abaji Nijsure R/at B-1/302, Vikas Complex, Castle Mill Compound, Thane 400602. Com. No. 502/2007 Smt. Damayanti Devendra Dand R/at 3, Alhad, Oswal Park, Pokhran Rd., No. 2, Thane (W) 400602. Com. no. 503/2007 Smt. Saghamitra Madan Waghchawde Shri. Madan Gajanan Waghchawde R/at A/104, Swastik Apart, Nr. Shivshena Shakha, Thane 400 601. Com. No. 504/2007 Shri. Rajesh Yeshwant Patil through Power of attorney holder Shri. Yeshwant Baliram Patil R/at. Block no. 14, New police line no.5, Opp, Siddhi Hall, Thane(W) 400 601.
.. 2 .. Com. No. 505/2007 Shri. Manoj Mahipal Bhoota Shri. Mahipal Chandmal Bhoota R/at 22/3, Bandhu Smruti, Chendani Koliwadam, Nakhwa compound Thane(W) 400601. Com. No. 125/2008 Shri. Vitthal Mallu Chavan Smt. Vasanti Vitthal Chavan R/at F-2/301, Rutu Park, Thane(W) 400 501. ..Complainant V/s. M/s. Shree Ganpatey Developers 1. Shri. Anil K. Revankar IRIS 'B' Wing, Flat no. 1403 Unnati Garden, Opp. Devdaya Nagar, Thane (W) 400 606. 2. Shri. Sudhir Revankar IRIS 'B' Wing, Flat no. 802 and1002, Unnati Garden, Opp. Devdaya Nagar, Thane (W) 400 606. 3. Shri. Jeetendra D. Bhanushali Gulmohar Building, 'C wing, Flat no. 613, 6th floor, Hill Garden Complex, Off. Tikujini Wadi, Kokanipada, Manpada, Thane(W) 400607. 4. Shri. Geljibhai B. Patel Flat no. 404A, 4th floor, Ravi Estate, Opp, Devdaya Nagar, Off. Pokhran Rd., no. 1, Vartak Nagar, Thane (W) 400 606. 5.India Lead Ltd., through its director Shri. Anil K Revankar IRIS 'B'Wing, Flat no. 1403 Unnati Garden, Opp. Devdaya Nagar, Thane (W) 400 606. ..Opponent
CORUM : HON'BLE MEMBER : MRS. BHAVANA PISAL HON'BLE MEMBER : MR. P. N. SHIRSAT Complainant through Adv. R.B.Kulkari Opponent through Adv. M/s Bhave and Company J U D G E M E N T (29th May 2010) HON'BLE MEMBER : MRS. BHAVANA PISAL. 1. These above numbered complaints are filed respectively by Mr.S.M.Waghchawde, Mr.Sandip P.Guram. Mr.V.R.Pawar Patil, Mr.Ragesh Patil, Mr.Anil Laul, S.Y.Nijsure, Mr.D.D.Dand, Mr.S.M.Waghchawde, Mr.Rajesh Patil, Mr.Manoj Bhoota, Mr.V.M.Chavan. Against Shri. Ganpatey developers and others for conveyance and the possession of their respective flats booked in the Opponents project of Vakratund Residency at Pachpakhadi area in Thane City. .. 3 .. These flat purchasers/Complainants in above numbered complaints had booked their respective flats with Shree Ganpatey developers and Indian Lead Company had granted development rights to M/s. Shree Ganpatey developers in respect of the plot of land in owned at Pachpakhadi Thane. The India Lead Company had obtained exemption and had obtained sanction for development plan and issued commencement certificate for the proposed construction of the residential flats. All the Complainants had paid the substantial amount towards part consideration of the flats they had booked with Shree Ganpatey developers which is also shown in the following chart. The Opponent was suppose to hand over the possession till 31/03/2006 in all the cases. Particulars of the complaint Nos. 496/2007 to 505/2007 and complaint no. 125/2008. Complaint no. and name of the Complainant | Complainants flat no. Bldg. No. at Vakratund Residency, pachpakhadi, Thane | Dt. of agreement | Consideration amount in Rs. | Amt. Paid so far in Rs. to Opponent | 496/2007 S.M.Waghchawde | Flat no. 501-B Bldg. No. B. | 16/11/04 | 10,47,618/- | 7,74,632/- | 497/2007 Sandip P. Guram, | Flat no. 503, Bldg. No. A. | 03/08/04 | 17,82,200/- | 8,01,990/- | 498/2007 U.R.Pawar Patil | Flat no.1401-B Bldg. No. C
| 14/09/05 | 18,71,500/- | 16,50,000/- | 499/2007 Rajesh Y. Patil | Flat no.801-B Bldg., no. B | 15/09/05 | 11,87,500/- | 8,10,127/- | 500/2007 Anil M. Laul | Flat no. 502, Bldg. No. B | 18/02/05 | 17,19,300/- | 17,19,300/- | 501/2007 S.Y.Nijsure | Flat No. 902, Bldg. No.A | 21/03/04 | 19,43,700/- | 8,01,990/- | 502/2007 D.D.Dand | Flat no. 203, Bldg no. B | 22/08/04 | 19,79,800/- | 16,82,830/- | 503/2007 S.M.Waghchawde | Flat No.501-A, Bldg. No. B | 16/11/04 | 10,76,992/- | 10,31,227/- | 504/2007 Rajesh Y.Patil | Flat No. 801-A Bldg. No. B | 15/09/05 | 15,67,500/- | 15,31,625/-
| 505/2007 Manoj M. Bhoota | Flat no. 303, Bldg. no. A | 18/07/04 | 19,43,700/- | 8,74,665/- | 125/2008 V.M.Chavan | Flat No. 403, Bldg. No. A. | 09/12/04 | 15,47,700/- | 5,70,000/- |
.. 4 .. 2. Meanwhile State Bank of India had given public notice in daily Newspaper 'Times of India' on 17/07/2006 whereby told to the general public that the property lying at survey nos. 31/1, 97/1, 97/2, 97/3 and 97/5 belonging to the Indian company had been mortgaged with them alongwith SBI. SBI, CIBL Bank of Baroda and SBI was leaders of consortium of lenders and the said land has been mortgaged to these banks and banks have every right to sell the land for enforcing their right to recover dues from the Indian lead company and since the devlopers had not disclosed this fact to the flat purchasers and shown the clear title they were by public Notice cautioning the public at large that they have clear right of mortgage over the said land and they have every right to sell the said land to recover their dues from the Indian lead company also as a creditors. The grievances of the Complainants are against Shree Ganpatey Developer and its partners and the Indian lead company. All the Complainants need to have possession of their respective flats which was going to be constructed by the Opponent of the said mortgage piece of land for which Complainants are also ready to pay the remaining balance amount from the total consideration prize of the flats. They also demanded to conveyance deed of the said plot from the Opponents on persual of M.O.V. dt.22/06/2005 Complainant learnt that the land was nortgaged to the SBI.
3. Opponent no. 1, 2, and 5 has contested the matter by filing their written statement on dt.18/08/2008 in which they have denied all the allegations and averments made in the respective complaint. Prima face they are out of pecuniary juridiction of this Forum and that the Complainant has not adduicial sufficent documentary evidence and Complainant are themselves defaulters in payment of their amounts due against the suit flats. They also deny that there was a triparte Agreement involved in the said piece of land. Opponents have informed that they have filed the writ petition 189/2009 in the High Court and Hon'ble High Court has given directions to these Opponent no. 5 to file an affidavit as regards to the third party rights created by it in the said property. Opponent no. 1 and 2 also handed over their responsibility by giving development rights to construct the project i.e Vakratund Residency to one Mr. Arun Mohan Joshi on taking 'No Objection' by these .. 5 .. Complainants. But Complainants have failed to make him (AMJ) Party to this proceeding and now the matter is referred to AAIFR. Indian lead Ltd., before BIFR u/s 15 (1) of SICA was declared as Sich Industrial Company and regarding the property include 'Vakratund Residency' the Hon'ble High Court in their order stated that Opponent no. 5 shall not deal with dispose off, create third party or part with the possession of the property of the Opponent no. 5 company.
4. The Forum has gone through all the records placed before us i.e affidavits filed by both the parties, evidence, written statement of Opponent, written arguments and only question before us is:- Whether there is a deficiency in service on part of the Opponent? We answer this question 'affirmatively' for the following reasons. REASONS All the Complainant is complaint no. 496/2007 to 505/2007 and 125/2008 has paid the substantial amount (shown in chart) towards part consideration of their respective flats which they had booked with Shree Ganpatay Developers as per their agreement schedule and Opponent has to handover the possession of these flats till 31/03/2006 to these Complainants. But failed to do the same as they unable to complete the construction on this mortgage land of Pachpakhadi, Thane. The Complainants were misleaded about the title clearance so here we say 'Buyers beware' as the 'Search “ was necessary on their part. Our findings are as per the dispute in the said property which is the subject matter of this complaint is pending before Hon'ble High Court and AAIFR we could not interfere but the flat purchasers had already paid the cost of their respective flats to the Opponent no. 1 and 2 and also Opponent received this amounts but unable to contruct so as failed to handover the possession of their respepctive flats to the Complainants as per their agreements which continueous the casue of action and contractual obligation on part of Opponent. Hence we are at the opinion that, Opponent shall give them same premises or another flats of the same consideration amount discription and area mentioned in the agreements in the similar or same vicinity to their respective Complainants and according the chart .. 6 .. Complainant should pay the balance amount to Opponent. We pass the following order. O R D E R 1.Complaint no.496/2007, 497/2007, 498/2007, 499/2007, 500/2007, 501/2007, 502/2007, 503/2007, 504/2007, 505/2007, and 125/208 is partly allowed and Opponent shall pay the cost of filing this complaint Rs.2,500/-(Rs. Two Thousand Five Hundred Only) to each of the Complainant separately and bear their own cost. 2.The Opponents shall jointly and severally liable and are directed that they shall provide the respective flats as per the agreement and if not possible then Opponent can provide another flats with the same discription and area in the another similar or same vicinity to all the Complainants and Complainant shall pay the balance amount accordance with the chart mentioned earlier on page no. 3 of this order to the Opponents. Opponent shall comply this order within 3 months from the receipt of the copy of this oder. Or 2. If the Complainants are ready and willing to accept the money paid by them against the consideration amount of their respective flats and with their consent. The Opponent shall refund the amount paid by the respective Complainants as per mentioned in the earlier chart in this order with 12% interest to be paid on those refund amount from dt.31/03/2006 till realisation and Opponent should comply this order within three months from receipt of the copy of this order and if failed to comply Opponent shall pay 3% additional penal interest. 3. Opponent shall pay Rs. 2,000/-(Rs. Two Thousand Only) for mental Agony to each of the Complainants. 4.Certified copies be furnished to the parties free of charges.
THANE DATE : 29/05/2010
(MR. P. N. SHIRSAT) (MRS. BHAVANA PISAL) MEMBER MEMBER |
