The complainant filed a complaint against the opponents who are developers for refund of the amount paid for booking a flat in their housing project called "Srushti Orbit". The complainant booked a flat and paid installments but the opponents did not execute a registered agreement or obtain necessary permissions. They also did not start construction. The opponents transferred the project to others without informing the complainant. The complainant is seeking a refund as possession is not possible. The opponents argue the complaint is not maintainable but the forum found the complainant is a consumer and the complaint is within jurisdiction of the consumer forum.
The complainant filed a complaint against the opponents who are developers for refund of the amount paid for booking a flat in their housing project called "Srushti Orbit". The complainant booked a flat and paid installments but the opponents did not execute a registered agreement or obtain necessary permissions. They also did not start construction. The opponents transferred the project to others without informing the complainant. The complainant is seeking a refund as possession is not possible. The opponents argue the complaint is not maintainable but the forum found the complainant is a consumer and the complaint is within jurisdiction of the consumer forum.
The complainant filed a complaint against the opponents who are developers for refund of the amount paid for booking a flat in their housing project called "Srushti Orbit". The complainant booked a flat and paid installments but the opponents did not execute a registered agreement or obtain necessary permissions. They also did not start construction. The opponents transferred the project to others without informing the complainant. The complainant is seeking a refund as possession is not possible. The opponents argue the complaint is not maintainable but the forum found the complainant is a consumer and the complaint is within jurisdiction of the consumer forum.
The complainant filed a complaint against the opponents who are developers for refund of the amount paid for booking a flat in their housing project called "Srushti Orbit". The complainant booked a flat and paid installments but the opponents did not execute a registered agreement or obtain necessary permissions. They also did not start construction. The opponents transferred the project to others without informing the complainant. The complainant is seeking a refund as possession is not possible. The opponents argue the complaint is not maintainable but the forum found the complainant is a consumer and the complaint is within jurisdiction of the consumer forum.
Through its Director- 2. Mr.Yogesh Vasant Shelar. 3. Mr.Jayant Chandrakant Waidande. All having office at- Srushti Regency, Gat No.226, At Village Wadebolai, Wagholi, Tal.Haveli, Dist. Pune 411 014. ... OPPONENTS
The Complainant has filed this complaint U/s.12 of the
Consumer Protection Act 1986, against the Opponents who are doing the business of development of land and construction of buildings, as under-
(2) It is the case of the Complainant that after going through the advertisement published by the Opponents in the newspaper regarding their Housing projects namely, “Srushti Orbit” at Kolwadi, Pune, she decided to book her flat in the scheme of the Opponents. Accordingly she booked her flat for which the notarized booking agreement was executed by the Opponents. The Complainant started to pay the monthly installments as the project was declared to be financed with 0% interest. It was assured by the Opponents that they will get the plan sanctioned in two – three months. The flat cost was including MSEB charges, society formation charges etc. Though the Complainant has paid sumptuous amount towards the consideration of her flat, the Opponents did not execute a registered agreement. So also, the Opponents had never taken the N.A. permission and construction permission. Moreover, in the agreement, the date of possession of the flat was not mentioned. After passing the considerable period also when the Opponents did not commence the construction, on demand of the Complainant and other flat purchasers, the Opponents had called for a meeting and requested all the flat purchasers to give some more time for completion of the project. 3 (APDF-9/17)
Though also the construction was not initiated by the Opponents and therefore, the second meeting was called for and at that time some of the flat purchasers claimed back their booking amount from the Opponents. The Opponents issued cheques to some of the flat purchasers but they were bounced for the reason “insufficient funds”. According to the Complainant, the Opponent indulged into unfair trade practice and also there is a deficiency in service by them. The Opponents have also violated the provisions of Maharashtra Ownership of Flats Act (in short, MOFA). The Complainant has observed that though more than sufficient time has been given to the Opponents, they have not initiated the construction of their projects and the likelihood of getting possession has been fogged down. Therefore, the Complainant has decided to claim the amount refund which she had paid for booking and towards installments to the Opponents. The Complainant, therefore, has filed this complaint praying for refund of the amount which she paid to the Opponents with interest thereon, compensation, and cost of the complaint, etc.
(3) By filing the written statement, the Opponents have admitted
that they initiated the project wherein the Complainant has booked her flat and paid the amount to them as contended in the complaint.
(4) The Opponents have stated that the complaint is not
maintainable on the ground of non-joinder of necessary parties, the same is barred by the limitation and considering the nature of the grievance, the suit ought to have been filed in the Civil Court for recovery of the money paid by the Complainant. It is stated that the Opponents were and 4 (APDF-9/17)
are willing to complete the project but could not do so due to unavoidable circumstances. They got the land transferred in their names and obtained the order to convert it into non-agricultural purposes. It is further mentioned by the Opponents that they have already handed over the said project of Srushti Orbit to Mr.Sanjay Kute and Mr.Phadtare with all its rights, title and interest entirely. Mr.Kute and Mr.Phadtare have agreed and promised the Opponents to accommodate all the flat holders who had booked flats with these Opponents. As such, no flat holder shall suffer any loss. Lastly, they prayed for the rejection of the complaint.
(5) The Complainant has filed her rejoinder and the Opponents have filed their evidence affidavit in the complaint.
(6) Perused the complaint, written statement, documents
produced and rejoinder and evidence affidavit etc..
(7) Heard Ld. Adv. Mr. Bhandari for the Complainant and Ld. Adv. Mr. Sant for the Opponents. REASONS:- (8) It is not disputed by the Opponents that they published the advertisement regarding their project “Srushti Orbit” at Kolwadi, Pune, in the year 2012. They have also not disputed that the Complainant has booked her flat in the said project and received the amounts as contended in the complaint. Their defence is that they have transferred the entire project of Srushti Orbit to Mr.Sanjay Kute and Mr.Phadtare with all its rights, title and interest entirely. Mr.Kute and Mr.Phadtare have agreed 5 (APDF-9/17)
and promised the Opponents to accommodate all the flat holders who had booked flats with these Opponents. As such, no flat holder shall suffer any loss. They were willing to complete the project but could not do so due to unavoidable circumstances.
(9) The Complainant had booked flat No.A-307 on 5th floor in
building No.A admeasuring 740 sq.ft. Its total consideration amount was agreed for Rs.20,92,000/- which was including M.S.E.B., society formation, legal and development charges. The Complainant has made part payment of Rs.4,95,000/- to the Opponents.
(10) In view of the contents admitted by the Opponents as
mentioned above, limited points arise for consideration. Ld. Adv. Mr. Sant has submitted that the Complainant has verified all the necessary documents before booking of the concerned flat, and when the agreement was notarized, the Complainant never asked for specific date on which the possession would be given to her. As the agreement is notarized one, it can not be considered as a concluded contract and then also, the Complainant had acted upon the said notarized booking agreement though it is not as per the Maharashtra Ownership of Flats Act (MOFA). As the contract is not concluded one, the Complainant is not the consumer of the Opponents. The complaint filed is without any cause of action and beyond limitation. As the Complainant has prayed for refund of amount only, this Forum has no jurisdiction to conduct the matter as the complaint is purely of recovery nature. The Complainant had to approach the Civil Court for her claim of recovery. The Complainant has not paid the EMI as per the agreement. 6 (APDF-9/17)
(11) Ld. Adv. Mr. Bhandari has argued that the Complainant repeatedly asked the Opponents to execute registered agreement to sale in her favour, however, the Opponents deliberately avoided to do so. By avoiding to follow the legal provisions for registration of agreement, the Opponents have caused deficiency in service. The Opponents even though were not having the NA permission in 2012; they advertised this project and had taken the booking amount from the Complainant. As per the provisions of the MOFA specific date of possession needs to be mentioned in the Agreement and the same is mandatory, the Opponents have violated these provisions. On the basis of this, he contended that the Opponents have indulged in the unfair trade practice and also there is deficiency in service. It is further submitted on behalf of the Complainant that, the Opponents have neither executed registered agreement to sale, nor handed over the possession nor refunded the amount to the Complainant who paid regular installments to the Opponents. Instead of the same, the Opponents have, without intimating the Complainant, transferred the entire project to Mr.Kute and Mr.Phadtare. This behaviour on the part of the Opponents gives continuous cause of action to the Complainant and, therefore, question of limitation does not arise. As on today the agreement made with the Complainant by the Opponents is still in existence and there is not a single step taken by the Opponents in order to erect the buildings wherein the Complainant has booked her flat, the Complainant has no other option than to pray for refund of amount as there is no possibility of completion of the project and getting possession of the flat in the nearing future. In this situation, the Complainant is the 7 (APDF-9/17)
Consumer of the Opponents and there is no need for her to approach to
the Civil Court. This complaint is maintainable before this Forum. In support of his submissions, he relied on some decisions. We have gone through the same.
(12) As the Opponents have published an advertisement
regarding their construction project, considering which the Complainant had approached to them, booked her flat, entered into agreement of sale and paid certain amount to the Opponents with the hope that she will get possession of her flat soon. The Complainant is, therefore, held as the “Consumer” of the Opponents. And, therefore, the complaint is maintainable before this Forum.
(13) As an admitted fact, the Opponents have entered into
agreement with the Complainant but failed to act upon accordingly, there is continuous cause of action. Moreover, for the flats which were to be built on the land situated at Kolwadi, said land is transferred by these Opponents in the name of Mr.Kute and Mr.Phadtare with all the rights of the project without taking permission or without intimating about the same to all the persons who have booked their respective flats with the Opponents. Therefore, it can not be said that these complaint is barred by limitation.
(14) It appears from the record that the Complainant repeatedly
asked the Opponents to register the agreement in her favour regarding her flat. But the Opponents did not pay any heed to her and thereby violated the mandatory provisions of the MOFA. The persuasion by the 8 (APDF-9/17)
Complainant for registered agreement is admitted by the Opponents in
their written statement. In view of the admission of the Opponents, it is crystal clear that the Opponents have not complied with the provisions of MOFA. What are the reasons, for not registering the agreement, those have not been explained by the Opponents, and this itself amounts to the deficiency in service and indulgence of the Opponents in the unfair trade practice.
(15) When the Opponents have admitted that, by acting upon the so called agreement of the Complainant had paid certain amount and the same has been received by the Opponents as part of consideration, that agreement is concluded agreement in our considered view. The Opponents did not produce any documentary evidence on record to establish the fact that irrespective of repeated demands, the Complainant failed to pay the balance consideration amount within stipulated time. On the other hand, from the record and changed circumstances it appears that there is no possibility of completion of the project in nearing future.
(16) It also appears that while accepting the amount from the Complainant, the N.A.permission was not obtained nor the plans were sanctioned by the concerned Authority. So also, the Opponents have transferred the entire project to Mr.Kute and Mr.Phadtare without giving any intimation about the same to the flat purchasers. Apart from that, not starting the construction as assured in the agreements to the Complainant and not refunding her amount on her demand, etc. is the deficiency in service on the part of the Opponents. Considering the same the Forum has arrived to the conclusion that the Opponents are liable to pay the 9 (APDF-9/17)
accepted amount to the Complainant alongwith 12% interest p.a. so also
the Opponents are directed to pay compensation of Rs.50,000/- and cost of Rs.5,000/- to the Complainant.
(17) In view of the above discussion, the Forum proceeds to
pass the order as below- // O R D E R //
(1) The complaint is partly allowed.
(2) The Opponents do pay jointly and severally the
amount of Rs.4,94,838/- (Rs.Four lakh ninety four thousand eight hundred thirty eight only)with interest thereon @ 12% p.a. from the date of the receiving the amount by them from the Complainant till realization thereof.
(3) The Opponents do pay jointly and severally
compensation of Rs. 50,000/- and cost of Rs. 5,000/- to the Complainant.
(4) The Opponents to comply the order within 45 days
from the date of receipt of this order. On their failure, they are liable to pay the interest @15% p.a. instead of 12% p.a.
(5) Copy of this order be given to the parties free of costs.
