Complaint No. :93/2009 Filed on : 02/03/2009 Decided on : 03/04/2010 Duration : 01 year 01 months 01 day BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM COLLECTOR OFFICE, ROOM NO. 214, IIND FLOOR, THANE) 1.Mr. Virendra Ramdhani Chauhan 2.Sau. Rajdei Virendra Chauhan Both R/at – C/o Dr.Sharma, Nr. Prakashanand School, Indira Nagar, Rd. no. 22, Wagle Estate, Thane(W) Dist – Thane. ..Complainant V/s. 1. Sau Pushpa Shyamkant Shukla The Prop. Of M/s.Ashtvinayak Construction 2. Mr. Shyamkant S. Shukla 5th Floor, MTNL Office, Cury Rd., (E) Mumbai. Both having site office at S. No. 53/3, Opp. Diva Rly. Stn., Diva(East), Dist – Thane. Head off. At Shop no. 5, Q-10. Transit Camp, 90 feet rd., Sion, Mumbai 400 017. ..Opponent
CORUM : HON'BLE MEMBER : MRS. BHAVANA PISAL HON'BLE MEMBER : MR. P. N. SHIRSAT Complainant through Adv. M.S.Tiwari Opposite Party through Adv. S.S.Butala J U D G E M E N T (3rd April 2010) HON'BLE MEMBER : MR. P. N. SHIRSAT 1. This complaint is filed as per section 12 Under Consumer Protection Act 1986 and the brief facts of the complaint are narrated as under:- That the complainants are husband and wife and the Opponent no.1 is the proprietor of M/s.Ashtvinayak Construction, builders and developers and indulged in construction and development activities of the Landed properties and the Opponent no.2 is the husband of the Opposite Party no.1 who has been doing bulk of activities for and on behalf of the Opposite Party no.1. That the Complainants were in need of commercial as well as residential premises. On enquiry from the Complainants the Opponents discloseD that vide Development agreement dt.29/04/2004 from Mr.Bhoir and family the Opponents are carrying on construction activities on the plot of land bearing Survey no. 53, Hissa no. 3 at village Diva within the limits of Thane Municipal Corporation. The Opponents agreed to complete the building on or .. 2 .. before December 2007. The Complainants agreed to purchase a shop bearing shop no.3 on the ground floor area admeasuring about 263 sq.ft. in the name of Complainant no. 2 @ Rs. 2,800/- per sq. ft. for Rs.7,36,400/- and residential flat no.2-A-6 area admeasuring about 450 sq.ft.@Rs.950/- per sq.ft for Rs.4,27,500/- in the name of the Complainant no.1. Accordingly the Complainants had paid the following monetary consideration to the Opponents namely – 1) Cheque no. 69573 dt. 04/09/2004 for Rs.30,000/- Thane Bharat Sahakari Bank 2)Cheque no.555925 dt.23/10/2004 for Rs.20,000/- Union Bank of India. 3)Cheque no.022264 dt. 06/ /2005 for Rs.30,000/- drawn on Thane Bharat Sahakari Bank. 4)Cheque no.22271 dt.11/03/2005 for Rs.50,000/- drawn on Thane Bharat Sahakari Bank. 5)Cheque no.578761 dt. 22/03/2005 for Rs.5,000/- drawn on Union Bank of India. 6)Cheque no.578766, 67 and no.46921 for Rs.1,00,000/- drawn on Thane Bharat Sahakari Bank. 7.Cheque no.46922 dt.02/03/2006 for Rs.25,000/- drawn on Thane Bharat Sahakari Bank. 8.Cash dt. 31/07/2006 for Rs.1,12,500/- i.e.Total consideration for Rs.4,87,500/- The Complainants states that the building constructed by the Opponents is completed but the Opponents neither executed the agreement for sale in favour of the Complainants nor intended to handover the possession of shop no. 3 and flat no. 2-A-6 which has caused harship and harrassment to the Complainant. Therefore the Complainants has issued notice to the Opponents on dt.17/12/2008, the Opponents replied the notice dt.08/01/2009 thereby admitting the receipt of Rs.3,75,000/- and not Rs.4,87,500/- which amounts to deficiency in service. Again on dt.27/01/2009 alongwith 9 other purchasers the Complainants visited the site office of the Opponents but they demanded additional amount @ Rs. 300/- per sq. feet for which the Complainants are not ready since the demand of the Opponents are illegal and baseless. Due to illegal and unlawful acts of the Opponents, the Complainants suffered mentally and physically. Being aggrieved and dissatisfied by the attitude of the Opponents the Complainants has filed the complaint in the forum stating the cause of action took place on 14/01/2008 when the Opponents did not fulfilled their .. 3 .. contractual obligation/promise to handover the possession of the flat and shop. The Complainants are the residents of Thane and the Opponents carried out construction at Diva, Dist Thane, Hence this Forum has teritorrial as well as pecuniary jurisdiction to adjudicate and decide this complaint. The prayer of the Complainants are as follows. 1. To direct the Opponents to receive balance consideration amount from the Complainant and handover possession of shop no.3 ground floor admeasuring 263 sq.ft area and flat no.2-A-6 sq. ft area 450/- duly entering into agreement for sale. or 2.The Opponents to refund Rs.4,87,500/- received by Opponents towards consideration in respect of shop no. 3, ground floor and flat no. 2-A-6 sq.ft. Area 450/- constructed at survey no.53, Hissa no.3 at village - Diva, Dist – Thane alongwith 18% interest p.a w.e.f. 14/01/2008. 3.The Opponents to pay Rs.5,00,000/- to the Complainant jointly and severally towards mental harassment. 4.The Opponents to pay Rs.10,000/- to the Complainants towards legal expenses. 5. Any other reliefs which may deem fit and proper.
2. The Forum has issued notice to the Opponents and the Opponents has filed written statement vide Exhibit no.5 without affidavit vide Exhibit no.6. The Opponents has filed documents vide Exhibit no.7 whereas the Complainants has filed rejoinder vide Exhibit no.6 and written arguments vide 9. The Opponents was not filed written arguments. The contents of the written statement of the Opponents are as follows:- The Opponents no. 2 has no concern with construction activities and he is not project manager. The Complainant has booked shop @ Rs. 3,000/- per sq. feet. The Opponents has not given any promise of delivery of possession before December 2007. The construction work was looked after by Ramakant Shukla and not by Opponent no.2. The Complainants has not followed the schedule of payment slabwise. The Complainants has neither paid the stampduty nor the registration charges. The Complainants are to be paid full payment for shop after completion of 2nd slab. The Complainant were issued notice on dt.October 2005 and in March 2007 for making payments but Complainants ignored the notice. Hence Complainants has no right to claim flat and shop. The .. 4 .. Complainants has not paid Rs. 4,87,500/- but paid duly Rs. 3,75,000/-. The Complainants has not fulfulled contractual obligation whereas the Opponents have not committed any deficiency in service. The Opponents no. 2 is unnecessarily made a party to pressure the Opponent no.1. The Complainants are not entitled for Rs.5,00,000/- damages @ 18% interest pa and cost of Rs.10,000/- as the complaint is false. Hence the complaint be dismissed with Rs.20,000/- compensatory cost of the Opponents.
3. In this complaint, the Complainants has filed docuements, affidavit rejoinder and written arguments. Where as the Opponents has filed written statement without affidavit. The Opponents has not filed written arguments also even though ample opportunity was given to them to file written arguments. In this complaint we have carefully perused the complaint with documents and written arguments filed on record by the Complainants and the written statement filed by the Opponents. In this complaint following question are arises for our consideration which are as under:- A) Whether the Complainant have proved any deficiency in service committed by the Opponents towards the Complainants? Answer – Yes. B) Whether the Complainant are entitled for compensation on acocunt of mental harassment and also legal expenses? Answer - yes for the following reasons:- REASONS A) Explanation: In this complaint it is crystal clear that the Complainants has paid total consideration of Rs.4,87,500/- for purchase of shop no. 3 on ground floor admeasuring 263. sq.ft and flat no. 2-A-6 admeasuring area of 450 sq. ft. @ 950 sq. ft. It is clear that there was privity of contract between the parties and there was a valuable consideration to that effect. The Opponents are also legally bound to fulfill the contractual obligation as per provisions of Maharashtra Ownership Flats Act 1963. The Opponents has filed written statement without affidavit and they have not filed written arguments though they were given ample opportunity to file same but failed. However in the written statement of paragraph no. 3 the Opponent have clearly agreed that they have received Rs.3,75,000/- and not Rs.4,87,500/- from the Complainants. Therefore the Opponents are legally bound to fulfull the contractural obligation of giving the possession of the flat as well as shop, in the building constructed at survey no.53, Hissa no.3 at village, Diva Dist – Thane by accepting the balance remaing amount from the Complainants. .. 5 .. B)Explanation:-The Opponents have accepted substantial amount of Rs.3,75,000/- as stated in their written statement. Still they have not handed over possession of the flat as well as of shop. These acts of the Opponents are nothing but deficiency in service. As the Opponents have not fulfilled their promise to handover possession, the Complainant have suffered mental as well as physical harassment. The Complainants has sufferred financial loss due to irresponsible as well as negligent attitude of the Opponents. Therefore the Complainants has to Knock the doors of the Consumer Forum for redressal of their grievances. Non performance of contractual obligation by the Opponents is not only deficieny in service but it is unfair trade practice which is against the principle of natural justice as well as social justice. We feel the prayer of the Complainants are just and reasonable. With this view we pass the following final order:- O R D E R 1.Complaint no. 93/2009 is partly allowed. 2.The Opponents are ordered to accept balance consideration amount from the Complainants and hand over possession of shop no.3 ground floor, admeasuring 263sq.ft and flat no.2-A-6 admeasuring 450 sq. feet area and enter into an agreement for sale at building constructed at Survey no. 53, Hissa no.3 at Village – Diva, Dist – Thane. Or 3.The Opponents are ordered to refund Rs.4,87,500/-(Rs. Four Lakhs Eighty Seven Thousand Five Hundred Only) received by them from the Complainants for non-fulfilment of contractual obligation of point no.2 alongwith 9% interest p.a w.e.f. 14/01/2008. 4.The Opponents are ordered to pay Rs.10,000/- (Rs. Ten Thousand Only) to the Complainants towards mental harassment. 5.The Opponents are ordered to pay Rs.5,000/-(Rs. Five Thousand Only) to the Complainants towards legal expenses.
.. 6 .. 6.The Opponents are ordered to follow this order jointly and severally within 30 days from the receipt of this order, failing which an additional 3% penal interest p.a shall be payable w.e.f. Passing of this order. 7.Certified copies be furnished to the parties free of charge.
THANE DATE : 03/04/2009
(MR. P. N. SHIRSAT) (MRS. BHAVANA PISAL) MEMBER MEMBER
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