Email & Informal agreement are valid – Supreme Court of India

 

Email & Informal agreement are valid – Supreme Court of India

 

Supreme Court on Trimex case – Formality not required under Contract Act    

The Indian Contract Act, 1872: ss.4, 7 – Concluded contract containing arbitration clause – Valid

The  Hon’ble Supreme Court (SC) in the case of “Trimex International FZE Limited, Dubai vs. Vedanta Aluminium Limited, India” in Re (2010) 3 SCC 1”  held that in the absence of signed agreement between the parties, it would be possible to infer from   various documents duly approved and signed by the parties in the form of exchange of emails, letter, telex, telegram and other means of communication.

 
The Hon’ble Supreme Court accepted the unconditional acceptance through emails and held the same to be a valid contract which satisfies the requirements of Section 4 and 7 of the Contract Act 1872 and further it satisfies Section 2(1)(b), 7 of the Arbitration and Conciliation Act 1996.  In the absence of a signed agreement inference can be from documents approved and signed by the parties in the form of exchange emails, letters, telegrams which come within Section 10 and 2(e) of the Contract Act 1972.

Maharashtra Real Estate Regulatory Authority (MahaRERA)

 

Maharashtra Real Estate Regulatory Authority (Maha RERA)

RERA has effectively started functioning in Maharashtra.

Maharashtra Government had established Maha RERA on March 8, 2017 for regulation and promotion of real estate sector in the state, with its headquarters in Mumbai.

The RERA act, lays rules and regulation for the real estate sector. It is aimed to bring in much needed transparency, efficiency, and professionalism that will further strengthen home buyers’ confidence.
 

Gautam Chatterjee appointed first Chairman of MahaRERA 

RERA-Real Estate Regulatory Authority came into effect from May 1, 2017.

Gautam Chaterjee, an IAS Officer, has been appointed the first Chairman of the Maharashtra Real Estate Regulatory Authority (Maha RERA).


First Case to be decided under RERA

In its  first case,  taken up suo moto, the RERA authority imposed penalty of Rs. 1.2 lakhs on Sai real estate consultant firm

In its first decision in a case taken up suo moto,  the Real Estate Regulatory Authority (RERA) norms that have given a big boost to home buyers, a Chembur-based real estate consultant firm has been asked to pay Rs 1.2 lakh as fine for a misleading advertisement of an ongoing construction project.

Penalised under Maharashtra Real Estate Regulatory Authority (MahaRERA) act, Sai Estate Consultant became the first firm to be fined under the act. The Authority’s order, issued on Monday,  stated that the consultant was guilty of advertising a project which wasn’t registered with it at the time of advertising.

Under the new rules, advertising for sale of flats in projects that are not registered with the Authority is considered as a violation under the rules of the regulatory body. The firm, which advertised a project of Haware builders in Thane, has also been asked to withdraw the advertisement and restrain from promoting it in absence of the Authority’s registration.

In addition to the fine, the firm has also been asked to tender an apology. The action comes as result of a complaint, filed in this regard from consumer activist outfit, the Mumbai Grahak Panchayat. “We welcome this bold order, and hope builders and real estate agents learn lessons from it,” the activist outfit was quoted as saying by Indian Express.

The entire decision is available at the following site:

https://maharera.mahaonline.gov.in/Site/Upload/pdf/Legal-Advisor-MahaRERA-Vs-Sai-Estate-Consultant-Chembur-Pvt-Ltd-Suo-Motu-Case-No-1-of-2017-dated-5-06-2017.pdf


Important Links

The MAHARERA site states that even if you have filed a complaint in the Consumer Forum, you can with draw the same, and file the Complaint or application in RERA.

https://maharerait.mahaonline.gov.in/PDF/FAQMergedPDF.pdf

  1. If the buyer wants to file a complaint in Consumer Court, is there any bar under the Act?

Ans: No. As per section 79 of the Act, civil courts are barred from entertaining disputes (suits or proceedings) in respect of matters which Real Estate Regulatory Authority or the adjudicating officer or the Appellate Tribunal is empowered under the Act to determine. However, the consumer forums (National, State or District) have not been barred from the ambit of the Act. Section 71 proviso permits the complainant to withdraw his complaint as regards matters under section 12, 14, 18 and section 19, from the consumer forum and file it with the adjudicating officer appointed under the Act.

Web Site of MahaRERA

Link to the Web site of RERA where you can download the Act, Rules and  other documents.

https://maharera.mahaonline.gov.in/Home/Index

 

 

Public Garden converted into Club House – Chief Justice visits site

 

In a rare action, the Chief Justice of Bombay High Court goes incognito and catches a Builder’s lie.

By Alka Dhupkar, Mumbai Mirror | Updated: May 6, 2017, 08.05 AM IST

Final order likely next month; PIL says garden turned into clubhouse
Justice Chellur was stopped from entering a public park at Cuffe Parade, confirming allegations that the builder had turned it into a private space

A huge land parcel in south Mumbai will be thrown open to public after Manjula Chellur, chief justice of the Bombay High Court, inspected it incognito and found that allegations of a developer taking it over illegally were true.


Justice Chellur posed as a regular Mumbaikar out on a stroll last week when she was prevented by the builder’s security guards from entering the premises, abutting the 32-storey DSK Durgamata luxurious apartments at Cuffe Parade. It comes as no surprise that Justice Chellur, in her observation yesterday, said the premises should be restored as a public open space, and the security of the premises be taken over by the BMC. The matter has been posted for a final hearing next month. The case pertains to the 16,000 sq ft plot on Prakash Pethe Marg where DSK Developers were allowed to construct a gymnasium on 33% of the plot area. The remaining 67% – almost 11,000 sq ft – was to be developed for public usage.

A petition filed in HC by activist Sanjay Kokate said the builder usurped a plot to build a clubhouse, leaving little space for citizens. The petition added that the builder violated several conditions of the agreement with the BMC.

Nearly eight months after the petition was filed, the high court in March this year directed that a technical expert will inspect the plot. While an inspection committee submitted its report yesterday damning the builder, Justice Chellur, who experienced first-hand what hundreds of citizens attempting to access the garden go through, said the plot must be restored as public space immediately.

While representatives of DSK Developers refused to comment on Friday’s verdict, the inspection committee comprising officials of the Maharashtra State Legal Services Authority and the Bombay HC said it found nothing for the public at the premises. In a seven-page report, the committee said, “We did not find any equipment for children to play… no swings, no slides, nor benches there. There was a garden which could, at best, be described as a `landscape garden’, not a recreation garden.”

The report also said there were no signs that said the plot was for public usage. “Entry to the said area is restricted by deploying security guards at the gate. The access way is used by the occupants of the DSK tower for ingress. We were stopped at the entrance by the security guards, and allowed to enter only after disclosing our identities,” the report said.

Petitioner Kokate’s lawyer Yusuf Iqbal Yusuf said the case was a classic example of a public property being converted for personal use. “An independent surveyor appointed by the HC last year prepared a fake report to favour DSK. The chief justice, however, appointed court officers to inspect the premises. Also, in the most proactive manner, the chief justice herself visited the premises without informing anyone and said she was also prevented from entering the premises. The court has now posted the matter to June for passing final orders,” Iqbal said.

 

(Reproduced from Mumbai Mirror.)

 

LG ordered to replace Defective Air Conditioner


In one of my earliest consumer dispute cases filed for defective Air Conditioner in 2012,

the Addl. Consumer Disputes Redressal Forum, Mumbai Suburban District Admin Bldg.,

3rd floor, Nr. Chetana College, Bandra-East, Mumbai-51 has passed its order on 1.2.17

Complaint Case No. RBT/CC/12/93 1.

ANILA GUPTA , BINOY GUPTA
1101, SHIROMANI, RAJ KAMAL LANE, PAREL, MUMBAI-12. ………..Complainant(s)

Versus

  1. SNEHANJALI 1, BONANZA ARCADE, S.V ROAD, AMBOLI, OPP. RAILWAY STATION CROSSING, ANDHERI-WEST, MUMBAI-58.
  2. L G ELECTRONICS INDIA PVT. LTD., PLOT NO. 51, SURAJPUR KASNA ROAD, GREATER NOIDA, U.P.-201306. …………Opp.Party(s)

In the result we pass the following order.

ORDER

 

  1. RBT Consumer Complaint No. 93/2012 is partly allowed.
  2. The Opposite Party No.2 LG Electronics India Private Limited is directed to replace AC Model No.LSA5ZGSN with new AC of same quality and description within two months from the date of receipt of the order.
  3. The Opposite Party No. 2 is directed to pay Rs.10,000/- as compensation for mental angry to complaint No. 1.
  4. No order as to cost.

 Copy of this order be sent to the both parties. [HON’BLE MR. S.D.MADAKE] PRESIDENT [HON’BLE MR. S.V.KALAL] MEMBER

 

Link to the full decision:

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=21%2F608%2FRBT%2FCC%2F12%2F93&dtofhearing=2017-02-01

Appeal

The order is good. But the District Forum has directed LG is replace the old AC with another new one of the same model. This model has been discontinued several years ago.
Further, the Forum has not awarded any interest and costs which is normally done. 
I have therefore preferred appeal in the State Commission.

Happy Ending

LG has agreed to replace the old AC with one of the latest versions and pay compensation of Rs. 10,000.  I will withdraw the appeal.

Builder liable to hand over areas shown open in the original plans (even if the constructions are made with the approval of the Municipal Corporation)

 

Duty of  Builder :

To pay Interest and compensation for delayed possession;  builder liable to hand  over areas shown open in the original plans (even if the constructions are made with the approval of the Municipal Corporation) and that  no fees can be collected for car parking spaces.

 

In CONSUMER CASE NO. 1479 OF 2015

DEVELOPERS TOWNSHIP PROPERTY OWNERS WELFARE SOCIETY
505, Hemkunt Chambers, 89 Nehru Place,
New Delhi – 110 019.                                                         ………..Complainant(s)

Versus

JAIPRAKASH ASSOCIATES LIMITED
Jaypee Greens, Sector -128, Noida – 201 304
Uttar Pradesh. …………………………………………………………….Opp.Party(s)

 

By its order dated 2 May 2016, NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

Decided the following issues.

 

Interest and compensation for delayed possession;  builder liable to hand  handing over areas shown open in the original plans (even if the constructions are made with the approval of the Municipal Corporation) and that  no fees can be collected for car parking spaces.

 

“ 31. This Commission in the case of M/s G.G. Associates & Ors. Vs. Commodore Ravindra Kumar Narad & Anr. Revision Petition No. 1647 of 2014, decided on 16.10.2014, placed reliance on a Ruling reported in Kalpita Enclave Co-op. Housing Society Ltd. Vs. Kiran Builder of the Hon’ble Bombay High Cour t, it was observed that “if the original plans and specifications on the basis of which the persons were persuaded to purchase the flats discloses that certain areas will be kept open it would be clear contravention of the agreement as well as the law if the promoter proceeds to construct additional structure on those places even with the sanction of the Municipal Corporation”.

 

“ FINAL ORDER :

i) It was stated by the counsel for the OP at Bar that they would send offers of possession of allotment within three months from 22.04.2016. There is already huge delay. We accept the offer made on behalf of the OP and direct the OP to handover the possession of the premises in dispute within three months from 22.04.2016 to 21.07.2016, otherwise, it will pay penalty in the sum of Rs.5,000/- per flat / per allottee/allottees, per day, till the needful is done; -15

ii) For the delayed period, the OP is directed to pay interest @ 12% p.a., on the amount(s) deposited by the respective complainants w.e.f. 39 months’ from the date of respective provisional allotment letters, till the actual physical possession as per prayer clause (a), is handed over by the OP. All the necessary documents, common areas and facilities be also provided.

iii) The OP is further directed to provide adequate car parking spaces in the project for the complainants therein and refund the excess amount, if any, collected from the members of the Complainant Society towards car parking slots, with interest @ 12% p.a., from the date(s) of charging, till its realization.

iv) As per law laid down in K.A. Nagamani (supra), we further impose costs in the sum of Rs.50,000/- payable to each of the flat allottee / allottees, total being Rs.5,00,000/-, for all the flat owners. The said amount be paid within 90 days’ from the date of receipt of copy of this order, otherwise, it will carry interest @ 9% p.a., till its realization.

Link to the full decision:

file:///C:/Users/Eleena/Downloads/National%20Commission%20judgement2016-05-02%20(1).pdf

Execution Applications under Section 25 and 27 of the Consumer Protection Act


Execution Applications under Section 25 and 27 of the Consumer Protection Act

What to do if the Opposite Party does not obey the order of the various Consumer Forums / Commissions which have attained finality…..
You have to file Execution Applications under Section 25 and 27 of the Consumer Protection Act

 

In Maharashtra State Consumer Disputes Redressal Commission
Mr Amir Ali Tharani  vs  Mr Rajesh Sukhtnkar decided on 27 September, 2010, the Commission has detailed the difference between these two provisions and the procedure to be followed.

I am giving the gist below…….I am also giving the link to the full decision at the end of this article.


            (j)      While dealing with proceeding under Sections 25 & 27, procedure as provided under Sections 13 & 14 will not be applicable;

           (k)     Proceeding under Section 27 is a criminal proceeding and the said proceeding is required to be dealt with in accordance with the provisions laid down in Section 27 only.  The procedure is a summery criminal procedure to be followed in case of offence and therefore, Chapter XX & XXI which dealt with the procedure of the summery trial of the criminal case will be and shall be applicable in a proceeding under Section 27;

          (l)      It is clarified that the orders passed by the Consumer Fora are no more deemed to be a decree of the Civil Court so as to attract provisions of Order XXI of Code of Civil Procedure.  After the amendment of Section 25, procedure as provided in old Section 25 is not applicable and therefore, the Consumer Fora cannot invoke powers under Order XXI of Code of Civil Procedure for execution of the order; after new Section 25 has been brought on Statute Book dated 15/03/2003 and therefore, neither the Consumer Fora nor the Civil Court can now execute the orders of the Consumer Fora as if they are decrees of the Civil Court as was permissible under the old Section 25;

          (m)    Under Section 27 District Consumer Forum in a composite way is constituted as a Judicial Magistrate of First Class and conferred with the powers of the Judicial Magistrate of First Class and this status and the powers have been given by Section 27(2) by applying non-obstante clause and it is clarified that said non-obstante clause is only applicable in sub-Section (2) of Section 27 by which the Consumer Fora have been declared as a Judicial Magistrate of First Class with conferment of powers as such Judicial Magistrate of First Class.  Had the said non-obstante clause been not there, it would have been necessary for the Consumer Fora to get a status of Judicial Magistrate of First Class and conferment of the powers under Section 11 of Code of Criminal Procedure.  However, in order to avoid such difficulties, the Legislature has directly conferred the powers & status of the Judicial Magistrate of First Class directly by the legislation and for said limited purpose, non-obstante clause has been introduced in Section (2) of Section 27.

            It is to be clarified that offence under Section 27(1) of the Act has been provided under the Special Act, namely, Consumer Protection Act, 1986.  So far as trial is concerned, sub-Section (3) has specifically provided for summary procedure of trial and we held that the procedure as provided under Chapter XX & XXI of Code of Criminal Procedure is required to be followed.  We also clarify that in view of provisions of Section 45 & 6 of Code of Criminal Procedure read with provisions of Consumer Protection Act, 1986 it follows that except and for the purpose, the specific procedure which has been provided under the Consumer Protection Act, 1986 rest of the procedure as may be applicable from the Code of Criminal Procedure shall be followed by the Consumer Fora while dealing with the complaint or application under Section 27 i.e. while sitting and dealing with the application under Section 27 as a Judicial Magistrate of First Class and from that angle, we have analysed the procedure in the earlier part of the judgement.

        The third party application may be permissible in a proceeding under Section 25(1) &(2) as discussed above.  However, third party proceeding is not applicable in case of proceeding under Section 25(3) before the Consumer Fora.  That may be possible while the Collector has taken steps for recovery of the amount as arrears of land revenue under Section 210 of the Maharashtra Land Revenue Code, 1966. So far as proceeding under Section 27 is concerned, there would not be a third party proceeding, since this is a criminal proceeding where the opponent who is a person allegedly committed an offence as provided under Section 27(1).  This a question is to be considered by the Consumer Fora sitting as Judicial Magistrate of First Class composite.

       (n)     There may be multiple execution applications either under Section 25 or under Section 27 depending upon the facts of the case;

 

Link to the full decision:
https://indiankanoon.org/doc/48891284/

 

New Passport Rules – Date of Birth and Only one Parents Name


New Passport Rules  –  
December 23, 2016

  1. In order to streamline, liberalize and ease the process of issue of passport, the Ministry of External Affairs has taken a number of steps in the realm of passport policy which is expected to benefit the citizens of India applying for a passport. The details of these steps are given below:-

    PROOF OF DATE OF BIRTH

  2. As per the extant statutory provisions of the Passport Rules, 1980, all the applicants born on or after 26/01/1989, in order to get a passport, had to, hitherto, mandatorily submit the Birth Certificate as the proof of Date of Birth (DOB). It has now been decided that all applicants of passports can submit any one of the following documents as the proof of DOB while submitting the passport application:

    (i) Birth Certificate (BC) issued by the Registrar of Births & Deaths or the Municipal Corporation or any other prescribed authority whosoever has been empowered under the Registration of Birth & Deaths Act, 1969 to register the birth of a child born in India;

    (ii) Transfer/School leaving/Matriculation Certificate issued by the school last attended/recognized educational board containing the DOB of the applicant;

    (iii) PAN Card issued by the Income Tax Department with the DOB of applicant;

    (iv) Aadhar Card/E-Aadhar having the DOB of applicant;

    (v) Copy of the extract of the service record of the applicant (only in respect of Government servants) or the Pay Pension Order (in respect of retired Government Servants), duly attested/certified by the officer/in-charge of the Administration of the concerned Ministry/Department of the applicant, having his DOB;

    (vi) Driving licence issued by the Transport Department of concerned State Government, having the DOB of applicant;

    (vii) Election Photo Identity Card (EPIC) issued by the Election Commission of India having the DOB of applicant;

    (viii) Policy Bond issued by the Public Life Insurance Corporations/Companies having the DOB of the holder of the insurance policy.

    Report of the Inter Ministerial Committee

  3. A three-member Committee comprising of the officials of the Ministry of External Affairs and the Ministry of Women and Child Development was constituted to examine various issues pertaining to passport applications where mother/child has insisted that the name of the father should not be mentioned in the passport and also relating to passport issues to children with single parent and to adopted children. The Report of the Committee has been accepted by the Minister of External Affairs.

    The following policy changes have been made inter-alia on the basis of the recommendations of this Committee:

    (i) The online passport application form now requires the applicant to provide the name of father or mother or legal guardian, i.e., only one parent and not both. This would enable single parents to apply for passports for their children and to also issue passports where the name of either the father or the mother is not required to be printed at the request of the applicant.

    (ii) The total number of Annexes prescribed in the Passport Rule, 1980, has been brought down to 9 from the present 15. Annexes A, C, D, E, J, and K have been removed and certain Annexes have been merged.

    (iii) All the annexes that are required to be given by the applicants would be in the form of a self declaration on a plain paper. No attestation/swearing by/before any Notary/Executive Magistrate/First Class Judicial Magistrate would be henceforth necessary.

    (iv) Married applicants would not be required to provide Annexure K or any marriage certificate.

    (v) The Passport application form does not require the applicant to provide the name of her/his spouse in case of separated or divorced persons. Such applicants for passports would not be required to provide even the Divorce Decree.

    (vi) Orphaned children who do not have any proof of DOB such as Birth Certificate or the Matriculation Certificate or the declaratory Court order, may now submit a declaration given by the Head of the Orphanage/Child Care Home on their official letter head of the organization confirming the DOB of the applicant.

    (vii) In case of children not born out of wedlock, the applicant for the passport of such children should submit only Annexure G while submitting the passport application.

    (viii) In case of issue of passport to in-country domestically adopted children, submission of the registered adoption deed would no longer be required. In the absence of any deed to this effect, the passport applicant may give a declaration on a plain paper confirming the adoption.

    (ix) Government servants, who are not able to obtain the Identity Certificate (Annexure-B)/ No-Objection Certificate (Annexure-M) from their concerned employer and intend to get the passport on urgent basis can now get the passport by submitting a self-declaration in Annexure-‘N’ that he/she has given prior Intimation letter to his/her employer informing that he/she was applying for an ordinary passport to a Passport Issuing Authority.

    (x) Sadhus/ Sanyasis can apply for a passport with the name of their spiritual Guru mentioned in the passport application in lieu of their biological parent(s) name(s) subject to their providing of at least one public document such as Election Photo Identity Card (EPIC) issued by the Election Commission of India, PAN card, Adhar Card, etc wherein the name of the Guru has been recorded against the column(s) for parent(s) name(s).

  4. Necessary notifications would be soon published in the Official Gazette to give effect to these changes. Instructions are also being issued to the Passport Issuing Authorities in India and abroad on these revised regulations.

  5. The Ministry of External Affairs expects that the above changes in the Passport Rules would further ease the process for passport applicants in getting their Passport. At the same time, it would enable this Ministry to continue to deliver passport related services to the citizens in a timely, transparent, more accessible, reliable manner and in a comfortable environment through streamlined processes and committed, trained and motivated workforce.


New Delhi
December 23, 2016

 

Purchase of two flats does not indicate purchase for Commercial Purpose


Purchase of two flats does not indicate purchase for Commercial Purpose

 

Till recently, it was considered that a person can occupy only one flat. If he purchases
more than one 
 flat, it was presumed that the purchase was for the commercial purpose of investment, and complaints were dismissed. The National Commission has now clarified the law on the subject.

 

Rajesh and Deepa Malhotra along with their sons Rohan and Parvan, all belonging to Gurgaon, booked two villas in Goa which were being constructed by Acron Developers. The villas were booked under two agreements, the first in the name of the parents with one son, and the second in the name of the parents with the other son. The total cost of both the villas was about Rs1.38 crores. Possession was to be given in April 2007.

 

When Malhotras inquired about the progress of the construction, the builder did not furnish this information, and instead threatened to terminate the agreements for non-payment of instalments. The builder also collected various additional amounts. Malhotras filed a complaint before the Goa State Commission against the developer and its directors for a refund of the wrongly collected amounts. The builder contested the complaint.

 

The State Commission concluded that the villas were meant that they were purchased for commercial purpose. It also observed that there were two agreements in different names, so one combined complaint could not be filed for two separate transactions. It dismissed the complaint, and ordered Malhotras to pay Rs.10,000 for misusing the provisions of the Consumer Protection Act.


Malhotras challenged this order in appeal. The National Commission observed that commercial purpose would have to be determined on the basis of the primary motive of trading or business activity for the purpose of making profit. Mere assertion by the builder that the properties have been purchased for commercial purpose is not sufficient. The National Commission also observed that two villas were purchased by the parents, one for each son. Even if a residential house, flat, or villa is let out, it would not amount to commercial purpose. Accordingly, by order dated 5.11.2015 delivered by the Bench of Justice D.K. Jain and M. Shreesha, the National Commission allowed Malhotra’s appeal, held them to be consumers, and remanded the matter back to the State Commission.

 

Link to the full decision:

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FFA%2F1287%2F2014&dtofhearing=2015-11-05

SDO Palghar Arrested by ACB, Thane While Taking Bribe Of Rs 50 Lakhs

 

SDO Palghar Arrested by ACB, Thane While Taking Bribe Of Rs 50 Lakhs

Fri, 25 Nov 2016-09:10am , PTI

 

In one of the biggest bribe cases of bribery, after the demonetisation, the Anti-Corruption

Bureau (ACB), Thane  arrested three persons including the Sub Divisional Officer (SDO) of

Palghar on Thursday for allegedly accepting a bribe of Rs 50 lakhs for giving favourable

ruling in land-related cases.

 

ACB Thane unit arrested SDO Palghar, Shivaji Davbhat (46), Nayab Tehsildar

Satish Manivade (57) and Jayesh Patil (25). Jayesh worked as Davbhat’s driver, an ACB

official said.

 

 

Builder directed to pay interest at the same rate he levied on delayed payment


BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI

                                                   Consumer Complaint No.CC/13/198

Mrs. Shruti Kirti Laddha,

Mr.Kirti Shivchandra Laddha,

Both R/at: 15, Staff Quarters, 2nd Floor, Institute of Chemical Technology, Matunga (E), Mumbai 400 019. …..                                                                                               Complainant(s)

                                         Versus

M/s. G.A. Builders (RNA Corpn. Group Company),

Through its Group Chairman,

Mr.Anil Aggarwal

            and

Managing Director Mr. Anubhav Aggarwal,

Having their office at: RNA Corporation Park, Next to Collector’s Office, Kalanagar, Bandra (E), Mumbai 400 051. ………………….Opponent(s)

 

BEFORE: Hon’ble Mr. Justice A.P. Bhangale, President Hon’ble Mr. Narendra Kawde, Member

For the Complainant: Advocate Mr.Vinay Rathi.

For the Opponent: None.

 

ORDER Per Hon’ble Mr.Narendra Kawde – Member:

(1) Allegations levelled by filing this consumer complaint against the opponent builder developer for failure to deliver vacant and peaceful possession of flat no.1102 on 11th floor, in the project named RNA Sagar, situated at Plot No.57, behind Apna Bazar, Pantnagar, Ghatkopar (East), Mumbai, agreed to have been sold to the complainants for total consideration of Rs.47,15,880/- even though complainants have paid substantial mount of Rs.38,04,488.15. Aggrieved thereby consumer complaint has been filed praying for directions to CC/13/198 2/7 handover legal possession of the Flat and also claimed compensation of Rs.10,00,000/- for mental and physical harassment with costs of Rs.1,00,000/-.

 

(2) It is not in dispute that the complainants have booked flat bearing no.1102 in the project developed by opponent by paying booking amount of Rs.5,00,000/- on 24/12/2009 by cheque bearing no.605889. Subsequently the complainants have paid amount of Rs.17,84,488/- by way of cheque payments which is not in dispute. Thus, the total amount paid by cheque is Rs.22,84,488/- as against the agreed consideration of Rs.47,15,880/-. It is the contention of complainants that amount of Rs.15,20,000/- was paid in cash on 24/12/2009 at the time of issuing the allotment letter. However, opponent did not issue receipt for cash payment alleged to have been paid. According to the complainants even though substantive amount against the agreed consideration is paid and they are willing to pay the balance consideration, yet, for the reasons best known to them, opponents have failed to deliver the possession.

 

(3) Opponents by filing written version tried to defend themselves on the ground that this being a redevelopment project with the co-operative society, the dispute cropped up pertaining to the use of Floor Space Index (‘F.S.I.’ in short) at the behest of co-operative housing society the matter was referred to arbitration and it was decided by the Arbitrator to restrict use of F.S.I. to 2.4 instead of 2.5 as was originally planned. Since it is redevelopment project first preference is for those old occupiers and only surplus flats constructed would have been available for sale. In view of the restrictions for use of F.S.I., construction was limited only to 11th floor instead of 16th floor as originally planned. In view of this CC/13/198 3/7 changed condition opponents are unable to accommodate the complainants to allot flat no.1102 as it was not available for sale. Opponents have always shown their willingness to refund the amount of Rs.22,84,488.15 together with interest @9% per annum under the provisions of Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act (45 of 1963) (hereinafter referred to as ‘MOFA’ in short). However, the complainants have refused to accept the refund and continued to litigate. According to Opponents cost of flat was agreed to Rs.31,95,880/- and not Rs.47,15,880/- as presumed by the complainants. Opponents stoutly denied receipt of cash amount of Rs.15,20,000/- as alleged by the complainants. In view of the developments narrated above the allotment was cancelled and accordingly, complainants were repeatedly informed by e-mails, by letters to take refund of the amount paid as narrated supra.

 

(4) Heard Advocate Mr.Vinay Rathi for the complainant. None appeared for the opponent. We have perused the record and documents relied upon by the parties

 

(5) It is not in dispute that amount of Rs.22,84,488.15 has been received by the opponents. Complainants did not demonstrate the proof of cash payment of Rs.15,20,000/-. The booking form duly signed by the complainants and opponents on 24/12/2009 indicates allotment of flat 1102 with 610 sq.ft. area on 11th floor, RNA Sagar, and also it shows payment schedule attached thereto. However, total agreed consideration is not mentioned therein. It is the contention of the opponents that the total consideration was Rs.31,95,880/-. Even if it is presumed to be correct, in that CC/13/198 4/7 case even substantial amount of Rs.22,84,488.15 was accepted by the opponent in a staggering mode after booking of the flat on 24/12/2009, knowing fully that there are restrictions for use of FSI and the flat in question cannot be allotted to the complainants after accommodating the original flat owners in the redeveloped project. According to the opponents themselves, arbitration Petition 326 of 2011 before the Hon’ble Bombay High Court and the order passed therein on 05/05/2011, restricted use of the F.S.I. Even thereafter also the opposite party continued to accept the balance payment by cheques. Even though complainants have paid substantial amount, opponent failed to execute registered agreement under the provisions of Section 4 of MOFA. Non-compliance of statutory obligation to execute registered Sale Deed, per se, amounts to deficiency of service on the part of the opponents. Since it was within the knowledge of the opponent that issue pertaining to use of F.S.I. was raised and referred to arbitration, at this point of time opponents ought to have made known these developments and their inability to fulfil the obligation to allot flat to the complainants.

 

(6) According to the opponents construction upto 11th floor was permitted with certain modifications. However, there is no approved modified development plan available on record. By their own admission construction could be done upto 11th floors, it would have been possible to accommodate allotment of flat bearing no.1102 as per booking since it was located on 11th floor. There is no reason to cancel the allotment without following the due procedure and moreover, after having accepted substantial amount of more than 80% of the agreed consideration of Rs.31,95,880/-. In case the CC/13/198 5/7 said flat was not available alternate flat ought to have been made available by accepting the balance consideration for which the complainants were ready and willing. Despite submissions on various counts disputing the claim we do not find opponents have made alternative offer of availability of flat of same size to the complainants.

(7) Failure of opponent builder to execute registered agreement and handover vacant and peaceful possession of the flat by accepting balance consideration amounts not only to glaring deficiency of service but it is unfair trade practice as well on their part and therefore, they are liable for their failure as such. At the time of arguments neither Advocate nor opponent were present and therefore, Commission could not obtain present status of the project, i.e. as to how many floors are constructed, how many flats are available etc. There is no record to substantiate that the project has been completed upto 11th floor or otherwise. Accepting the huge sum and mis-utilizing for the long period without appropriating such receipted amount for the project for which it was meant is also a serious issue nothing short of unfair trade practice. Non-fulfillment of contractual and statutory obligations on the part of the opponent is undoubtedly deficiency of service and unfair trade practice under the provisions of Section 2(1)(g) and 2(1)(r) of Consumer Protection Act, 1986.

 

(8) In view of the observations aforesaid, the contractual relations still subsists between the complainants and opponent builder as consumer and service provider under the provisions of Consumer Protection Act, 1986. It is only belatedly, that the opponents tried to refund the amount with interest @9% per annum without valid and justifiable CC/13/198 6/7 reason as the documents do not demonstrate as to how the flat booked on 11th floor and use of F.S.I. was permitted upto 11th floor could not be allotted to the complainants. There is no justification on the part of the opponent for their failure to fulfil the contractual and statutory obligation under the provisions of MOFA by handing over vacant and peaceful possession of the flat in question by accepting the balance consideration of Rs.9,11,391.85/- or to offer alternative flat of the same size in the vicinity in case it is imfeasible to fulfil the obligations.

(9) On perusal of the demand notice dated 21st April, 2010 the opponents have claimed interest @21% per annum for default payment. Therefore, the refund of amount, if any, as claimed shall carry the same rate of default interest as demanded by the opponents with a view to maintain balance of equity.

 

(10) In view of the above, we hold the opponents have resorted to unfair trade practice and indulged in deficiency of service and therefore, complaint is allowed against the opponents with following directions:

 

ORDER

 

(I ) Consumer complaint is allowed with costs quantified to Rs.30,000/- (Rupees Thirty Thousand only) payable jointly and severally by the opponents to the complainants.

 

(ii) The opponents are directed to handover jointly and severally vacant and peaceful possession of Flat bearing No.1102 on 11th floor, in the building RNA Sagar, Building No.1 at Ghatkopar East, Mumbai or CC/13/198 7/7 alternative flat of same size of 610 sq.ft in the same project or in the vicinity by accepting balance consideration of Rs.9,11,391.85/- (Rupees Nine Lacs Eleven Thousand Three Hundred Ninety One and Paise Eighty Five Only) from the complainants within a period of 45 days from the date of this order.

(iii) Complainants to pay Rs.9,11,391.85 (Rupees Nine Lacs Eleven Thousand Three Hundred Ninety One and paise Eighty Five only) to the opponents within 60 days from today. In case Opponents refuse to accept the amount, the complainants are at liberty to deposit the amount with State Commission within eight days from refusal, if any. OR Alternatively at the option of the complainants to refund the amount of Rs.22,84,488/- (Rupees Twenty Two Lacs Eighty Four Thousand Four Hundred Eighty Eight only) together with default interest @21% per annum from the date of each such deposit within a period of 45 days from the date of this order. Non-compliance shall enhance the rate of interest @24% per annum on the amount to be paid till realization.

(iv) One set of complaint compilation be retained for our record and rest of the sets be returned to the complainant.

 Pronounced on 26th September, 2016.
[Justice A.P.Bhangale] President                          [Narendra Kawde] Member