DCDRC/MS/ CC/380/2014

                                                                      Date of Admission -  05/11/2014

                                                                     Judgement Dated –19/03/2024

Mrs. Neela Pratap Pawar,

3, Om Shiv Ashish, Chakravarty Ashok Road,

Ashoknagar, Kadivali (East),

Mumbai – 400101.                                               ……….. Complainant  

V/s.

.

1. M/s. Zirkon International,

    (Through its Director),

    703, Ruby Crescent Business Boulevard,

    Chakravarty Ashok Road, Ashoknagar,

    Kadivali (East), Mumbai – 400101.                 ………… Opposite Party No. 1

2. Om Shiv Ashish Co-Hsg. Society,

     (Through its Chairman),

      8, Om Shiv Ashish, Chakravarty Ashok Road,

      Ashoknagar, Kadivali (East),

     Mumbai – 400101                                        ………… Opposite Party No. 2

Before        - : Hon’ble Smt. Samindara R. Surve , President

                       Hon’ble  Shri.  Sanjay S.  Jagdale, Member,

                       Hon’ble  Shri. Sameer S. Kamble, Member

                      For Complainant  -  Adv. Niketan Nakhawa

                      For Opposite Party  no. 1 –  Adv. Mane

                      Opposite Party no. 2 – Ex-parte

JUDGMENT

PER : Hon. Smt. Samindara R. Surve, President

 1.         The present Complaint has been filed by the Complainant under section 2(d) of the Consumer Protection Act, 1986 against the Opposite Party no. 1 builder and the Co-operative Housing Society  as the Opposite Party no 2, inter alia seeking refund of amount of Rs.7,34,400/- paid by her as part consideration towards the purchase of a flat, along with the compensation, cost etc.

2.            The brief facts of the present Complaint are as under;
a.     The Complainant is a flat owner of and residing in Opposite Party no.2 Society since 25th June, 1978 namely Om Shiv Ashish Co-operative Housing Society. The case of the Complainant is that since the said building was in dilapidated conditions and beyond economical repairs, the Opposite Party no.2 entered into an Agreement for re-development with the Opposite Party no. 1 on 31st December, 2011, which was duly registered with the sub registrar of assurance on 3rd January, 2012. the Complainant stated that although in the said locality, the permission for construction was limited to four floors only, however the Opposite Party no.1 concealed the true facts and by misrepresentation executed the re-development Agreement with the Opposite Party no 2.

b.   The Complainant thereafter on account of the re-development of the said building in addition to the original flat in which she was residing  in the same building, which was proposed to be developed approached the Opposite Party no. 1 for purchase of an additional flat in the same building, wherein the re- development was to be carried out and from her retirement  dues paid a sum of Rs. 7,34,400/- on 23rd February, 2012, which was demanded by the Opposite Party no.1 for purchase of an additional flat on the first floor in the same Society premises

c.   The Opposite Party no. 1 vide its letter dated 19th September, 2011 addressed to the members of Opposite Party no.2  Society called upon them to handover vacant possession of the individual flats before executing the said Agreement of re- development. The Complainant by her letter sought a copy of the redevelopment agreement, requisite plans and designs from the Opposite Party no.2.

d.    The Complainant also stated that the said re development was not progressed and there was a delay on part of the Opposite Party no.1, therefore she addressed several letters to the Opposite Party no .1 seeking refund of the part payment made by her towards the purchase of the additional flat in the society building after re development. The letters of the Complainant were neither replied nor complied with the demand made therein by the Opposite Party no.1. The Opposite Party no. 1 did not obtain the permissions for construction of the re development project resulting in termination of the  re-development Agreement executed between Opposite Party no.1 and 2. And since the Opposite Party no.1 has not returned the said money paid towards part payment of new flat to the Complainant,  the present Complaint has been filed by her seeking refund from the Opposite Party no .1.

3.             On admission of the Complaint and insurance of notice, the Opposite Party no.1 appeared through its Advocate and filed its Written Statement, inter alia taken the defence that the re- development Agreement was executed between the Opposite Party no. 1 and 2 and there is no separate contract executed between the Opposite Party no.1 and the Complainant. The Opposite Party no.1 has also contended that the Opposite Party no.  2 Society had made no grievance against Opposite Party no.1. The Opposite Party no.1  also contended that the Complainant has tried to hold the Opposite Party no.1 responsible for the entire delay caused in redevelopment of the building, which is not justified and therefore the Complaint is required to be dismissed. The Opposite Party no.1 has also denied the locus of the Complainant to file the present Complaint before this Commission thereby contended that there is no individual contract executed by it with the Complainant and the Complainant is only the intending purchaser of a flat. The Opposite Party no.1 has also contended that the Complainant has not purchased entire new flat but sought to purchase part of the extended space, which was coming adjacent  to her flat, which Complainant was getting from the allotment system and the amount paid by her was towards the said extra space and not for the new flat.

4.              The Opposite Party no. 1 has also contended that  the Complaint does not come within the purview of this Commission and therefore needs to be dismissed.  The Opposite Party no. 1 also contended that the Agreement of re- development is still subsisting between Opposite Party no.1 and 2 and it has submitted the revised plans for re-development to the concerned authority and there is a delay on part of the concerned authorities to grant the permissions for construction. The Opposite Party no .1 has also contended that since there is no separate Agreement executed between it and the Complainant, therefore the Opposite Party no.1 has not undertaken any service to be provided to the Complainant, hence the Complaint cannot be file under Consumer Protection Act and the Complainant is merely a intended purchaser. The Opposite Party no.1 has also contended that since the Municipal Corporation and Ministry of defence have not granted it permission to construct the said building, it could not develop the same and therefore there is no deficiency in service as contemplated by the Complainant. The Opposite Party no.1 has also contended that the amount towards the extra space paid by the Complainant was just the advance and not the payment of the entire amount and that she was aware of the status of the subject project. The Opposite Party no.1 submitted in  its written statement and written argument and sought to refund the entire amount of advance given by the Complainant with the simple interest. The Opposite Party no.1 has also contended that due to the fault of the concerned authorities in granting permissions for construction of the said  project it should not be made liable and  sought dismissal of the present Complaint. The Opposite Party no.2 did not appear and contest the claim of the Complainant. Hence the proceedings were conducted ex-parte against it.

5.                The parties have filed their affidavit of evidence and documents, their respective written arguments. This Commission considered the written arguments as well as oral arguments advanced and framed the following Points for determination.

                                                     Findings

6. As to the point no 1 -                The Complainant has admittedly paid a sum of Rs.7,34,400/-  to the Opposite Party no.1 on 23rd February, 2012. The Complainant  in support of her claim has produced a receipt dated 12/02/2012 issued by the Opposite Party no.1, wherein the Opposite party no.1 specified the area and the proportionate amount in respect thereof. The Complainant along with her affidavit of evidence has also produced the allotment list allotting the flat number 102 and flat number 103 in the society of the Opposite Party no. 2 in the name of the Complainant. The Opposite Party no.1 has admitted the receipt of the said part payment of Rs. 7,34,400/- from the Complainant. We therefore observed that the Complainant is a bonafide purchaser of the said flat from the Opposite Party no.1 and for that purpose availed the service of the Opposite Party no.1 for the consideration paid by her. We therefore observed that the Complainant is a Consumer under section 2 (1) (d) of the Consumer Protection Act, 1986 & the Opposite Party no. 1 is the service provider.

7. As to the point no 2. -                   The Opposite Party no.1 admittedly accepted a sum of Rs. 7,34,400/-  from the Complainant and agreed to allot a flat in the new building to her. The Complainant resides within the jurisdiction of this commission and sought refund of the money paid by her to the Opposite Party no.1 towards the booking of flat in the new building to be constructed by the Opposite Party no.1,  in the same society since the Complainant is the Consumer being the bonafide purchase and the Opposite Party no.1 being the  service provider, and the present dispute between the Consumer and the service provider, this Commission has jurisdiction to try and entertain the present Complaint.

8. As to the point no.3 -              The Opposite Party no.1 admittedly accepted the amount of Rs.7,34,400/-  from the Complainant.  It is the position that admitted the new building wherein he had agreed to allot a flat to the Complainant is not constructed.  Also in the pleadings, the Opposite Party no.1 has agreed to refund amount to the Complainant with the simple interest however it has not paid it till date. The Opposite Party despite agreeing to give a flat in the newly constructed building to the Complainant it has not constructed it.  As well as despite admitting to repay the said amount it has not paid,  hence,  it has committed and is guilty of deficiency in service.

9. As to point no.4 -                    Admittedly, the Opposite Party no .1 has not constructed and / or redeveloped the subject property and by virtue of delay on part of the Opposite Party no.1, the Complainant has called upon it to complete the construction as well as the Complainant by the letters dated 9th September, 2012, 28th November, 2012, 18th January, 2013 5th April, 2014 and 26th May, 2014 called upon the Opposite  Party no. 1 to refund her the advance amount paid towards the purchase of the said additional flat in the society building after re development, however the Opposite Party no. 1 neither replied nor complied with the demand made therein. Thus, it has committed the deficiency in service and therefore the Complainant is entitled for the compensation towards mental agony and cost. In the circumstances, the Complainant is also entitled for the cost towards legal proceedings.

10. As to point no.5 -                     As far as the relief of declaration as sought by the Complainant in prayer clause (a) with regard to the binding nature of the decision taken between Opposite Party no. 1 & 2  upon the members of the society is concerned, this Commission has no jurisdiction to grant the same as it is concerning touching the business of the society.

11.           Admittedly, the Opposite Party no. 1 has not started with the construction of the redevelopment project and sought to refund money however not paid.  Therefore  the Complainant is entitled for the appropriate relief in this case. From the documents produced by the Complainant obtained from the central ordinance deport Kandivali (East) under RTI provisions with regard to restrictions and prescribed specified limit for construction on the subject land, it is observed that the Opposite Party no .1 without taking any prior permission / sanctions  as required from the competent  authority as directed by the ministry of defence has executed the re-development agreement with the Opposite Party no.2, thereby the Opposite Party no.1 concealed the true facts. The circular in this regard was issued in the month of May 2011 and the re-development Agreement  was executed in the month of December 2011, it is therefore observed that the Opposite Party no.1 has adopted unfair practices by concealing the said facts from the Complainant  as well as the Opposite Party no. 2

11.                The Complainant being the senior citizen who had invested  her retirement dues  with Opposite Party no.1 in a hope that she would get a separate additional flat, however the Opposite Party no.1 did not have any permission to construct or re-develop the said building and dupe the Complainant intentionally, The Opposite Party no. 1 despite admitting to pay the said amount in its pleadings did not pay the same to the Complainant. Therefore the Complainant is entitled for the interest and reasonable compensation towards the mental agony and the harassment suffered by her..

12.                  The present Complaint has been filed in English language and all the pleadings  are filed in English language, the  present judgement is made in English. The  present judgement has been made after discussion and unanimously. We therefore ordered that

ORDER

1.  Complaint no. 380/2014 is partly allowed.

2.  The Opposite Party no.1 is ordered and directed to pay a sum of Rs.7,34,400/- (Rs. Seven Lakh Thirty Four Thousand Four Hundred Only) to the Complainant with interest at the rate of 10% per annum from the date of filing of this Complaint till payment and /or realisation within a period of 60 days from the date of receipt of  this order.

3.  The  Opposite Party no.1 is ordered and directed to pay a sum of Rs. 1,00,000/- (Rs. One Lakh Only) towards the compensation to the Complainant within a period of 60 days from the date of receipt of this order.

4. The Opposite no.1 is ordered and directed to pay a sum of Rs. 25,000/- (Rs. Twenty Five Thousand Only) towards the litigation cost to the Complainant within a period of 60 days from the date of receipt of this order.

5.   Complaint against Opposite Party no. 2 is rejected.

5. The copy of this order to be supplied to the parties free of cost as per rules.