V.K. Jain, Presiding Member (Oral):— Vide allotment letter dated 15.10.2011, OP No. 1 which at that time was known as Hicon Infrastructure, allotted to the complainants, flat bearing No. 202 on the second floor in ‘A’ Wing of a building which it was proposing to construct at C.T.S, No. F/1116-A Village Bandra, St. Martin Road, Bandra (W), Mumbai. The proposed building was to be known as Hicons Onyx. The area of the flat sold to the complainants was to be 828.40 sq.ft. of usable carpet area inclusive of balcony and dry balcony. The total consideration of the flat was fixed at Rs. 1,93,00,000/- out of which Rs. 20 lakhs were paid as Earnest Money Deposit. The balance amount of Rs. 1,73,00,000/- was payable in the following manner:—
PAYMENT DUE ON
Amount due
1
On or before 25.10.2011
35,00,000/-
2
On or before 28.10.2011
20,00,000/-
3
On or before 04.11.2011
35,00,000/-
4
On or before 16.11.2011
35,00,000/-
5
On or before 30.11.2011
28,00,000/-
6
On or before 20.12.2011
20,00,000/-
Total Amount
1,73,00,000/-
2. It was agreed between the parties that they shall enter into an agreement for sale, a proforma of which was provided to the complainants. The possession of the flat was agreed to be given on the date to be stipulated in the agreement. The case of the complainants is that no agreement in terms of the aforesaid allotment letter came to be executed by OP No. 1 in their favour. The complainants claim to have paid a total sum of Rs. 1,87,00,000/- to OP No. 1. The case of the complainants is that despite having taken more than 95% of the sale consideration, the OP No. 1 M/s Fortune Infrastructure (formerly known as Hicon Infrastructure) did not even start construction of the building in which a flat was sold to them. This is also their allegation that the OPs had committed breach of section 4 of the Maharashtra Ownership of Flats Act 1963, by accepting more than 20% of the sale consideration as advance payment without entering into a written agreement for sale. The complainants are, therefore, before this Commission seeking the following reliefs:—
“a) To hold and declare the Opposite parties to be guilty of deficiency in service and unfair trade practices as per the provisions of the Consumer Protection Act, 1986.
b) To direct the Opposite parties No. 1 to 4 to comply with their statutory obligations and to execute and register the Agreement for sale with the complainants in respect of flat No. 202 on the 2nd floor admeasuring 828.40 sq.ft. with one car parking in the building known as Hicons Onyx and since renamed as Fortune Residency situated at plot No. F/1116-A, Village Bandra, St. Martins Road, Bandra (West), Mumbai 400 050 Maharashtra.
c) To direct the Opposite parties No. 1 to 4 to complete the construction of the building known as “Hicons Onyx” since renamed as “Fortune Residency” and to hand over to the complainants vacant and peaceful possession of the Flat No. 202 on the 2nd floor admeasuring 828.40 sq.ft. with one car parking in the building known as Hicons Onyx and since renamed as Fortune Residency situated at plot no. F/1116-A, Village Bandra, St. Martins Road, Bandra (West), Mumbai 400 050 Maharashtra on receiving the balance consideration amount of Rs. 6,00,000/- from the complainants.
Or alternatively
In the event of the Opposite parties No. 1 to 4 having already created third party interests in favour of the Opposite party No. 5, to direct the Opposite parties No. 1 to 4 to hand over to the complainants any other flat of the same size quality and specifications with one car parking in the same Building “Hicons Onyx” since renamed as “Fortune Residency” or any other flat of the same size, quality and specifications with one car parking in the same locality of the present building Hicons Onyx or Fortune Residency.
d) That pending the hearing and final disposal of the above numbered complaint, direct by an order of ad-interim and interim injunction restraining the Opposite parties, their Partners, Directors, Agents, Servants and or any other persons acting under them from selling, mortgaging, alienating and or creating third party interest in respect of the Flat No. 202 on the 2nd floor admeasuring 828.40 sq.ft. with one car parking in the building known as Hicons Onyx and since renamed as “Fortune Residency” situated at Plot No. F/1116-A, Village Bandra, St. Martins Road, Bandra (West), Mumbai 400 050 Maharashtra.
e) To direct the Opposite parties No. 1 to 4 to submit copies of all the documents including all the amendments to approved plans in respect of the sanction of the building known as “Hicons Onyx” and since renamed as “Fortune Residency” situated at plot No. F/1116-A, Village Bandra, St. Martins Road, Bandra (West) Mumbai 400 050 Maharashtra.
f) To direct the Opposite parties No. 1 to 4 jointly and severally to pay to the complainants Rs. 5,00,000/- (Rupees Five Lakhs only) towards compensation for the inconvenience and mental agony suffered by the complainants due to the enormous delay in construction of the building, negligence and deficiency in service of the opposite parties No. 1 to 4.
g) To direct the Opposite parties No. 1 to 4 jointly and severally to pay to the Complainants the sum of Rs. 1,00,000/- (Rupees One Lakh only) being the Legal and other incidental expenses incurred by the complainants.
h) For such other and further relief as this Hon'ble Commission may deem fit and proper in the nature and circumstances of the above numbered complaint.”
3. The complaint was instituted against five persons, namely, M/s Fortune Infrastructure, Mr. Rafique Nazir Shaikh, Mr. Naazir Nisar Kazi, M/s Zoy Shelcon Pvt. Ltd. and Mr. Suyog Ramesh Shet. The name of OP No. 5 was deleted by this Commission from the array of parties vide its order dated 8.9.2015.
4. Since the OPs did not file written version even within 45 days from the date of receipt of notice of admission of complaint, their right to file the said written version was closed vide order of this Commission dated 18.12.2015. The complainants thereafter field affidavit by way of evidence and vide order dated 10.2.2016 this Commission disposed of the complaint in terms of the directions contained therein.
5. Being aggrieved from the order passed by this Commission, one of the opposite parties, namely, Mr. Naazir Nisar Kazi approached the Hon'ble Supreme Court by way of an appeal. Vide consent order dated 5.4.2016, the Hon'ble Supreme Court set aside the order passed by this Commission and permitted the OPs to file its written version, subject to payment of Rs. 2 lakhs as cost. The cost was to be borne by the appellant - Mr. Naazir Nisar Kazi. The Hon'ble Supreme Court desired this Commission to dispose of the matter by the end of August, 2016. In compliance of the aforesaid order of the Hon'ble Supreme Court, written version was filed by the OPs after payment of cost to the complainant in terms of the said order.
6. Vide order dated 27.7.2016, this Commission after hearing the learned counsel for the parties, deleted the name of Mr. Naazir Nisar Kazi from the array of parties. The name of OP No. 4 - M/s Zoy Shelcon Pvt. Ltd. had already been deleted by this Commission while initially disposing the complaint vide order dated 10.2.2016. Thus the complaint has now proceeded only against two opposite parties, namely, M/s Fortune Infrastructure (formerly known as Hicon Infrastructure) and Mr. Rafique Nazir Shaikh.
7. When this matter came up for hearing on 06.09.2016 & 07.09.2016, no one appeared for the OPs though the learned counsel for the complainants was present along with complainant No. 1. Today also, no one is present for the OPs though the learned counsel for the complainants is present along with complainant No. 1. I have heard the learned counsel for the complainants.
8. In their reply, the OP Nos. 1 & 2 have admitted the booking of flat No. 202, 2 Floor, A Wing, admeasuring useable carpet area of 828.40 Sq. ft., inclusive of one parking, in the project at Hicons Onyx. According to them, they had entered into a Development Agreement dated 20.12.2007 with the owners of plot No. CTS No. F/1116-A, Village Bandra, St. Martins Road, Bandra (West), Mumbai for re-development and had also received IOD dated 16.11.2010 along with MCGM approved plan. It is also stated in para 13 of the written version that the complainant had paid Rs. 1,20,00,000/-out of the total consideration of Rs. 1,93,00,000/-. In para 7 of the complaint, the complainants in addition to payment of Rs. 1.20 crore by way of cheques also pleaded payment of Rs. 67 lakhs in cash. While responding to para 1 to 8 of the complaint, in para 25 of their written version, the OPs did not deny receipt of the aforesaid cash payment of Rs. 67 lakhs from the complainants.
It was further alleged in the written version filed by OP Nos. 1 & 2 that it was due to change in the Development Control Regulations and due to non-cooperative tenants that the project got delayed. It was also alleged that on account of the financial crisis faced by them, a new re-development agreement was executed on 24.5.2013 between the owners of the property, namely, Jamila Ismail & Mr. Irfan Ismail Mohammed Gholap on one hand and M/s Hicon Infrastructure & M/s Zoy Shelcon Pvt. Ltd. on the other hand. It was further alleged that currently the project is with M/s Zoy Shelcon Pvt. Ltd. and it is they who have received the IOD dated 25.2.2014. OP Nos. 1 & 2, therefore, expressed their inability to deliver possession of the flat to the complainants. They also took a preliminary objection that the complaint is barred by limitation prescribed in section 24A of the Consumer Protection Act.
9. As noted earlier, no specific date for delivery of possession of the flat to the complainants was stipulated in the allotment letter issued to them. If a reasonable time of three years from the date of allotment letter is taken, the opposite parties were required to deliver possession of the flats to the complainants within three years. The complainants obviously would have no cause of action to file a consumer complaint of this nature before the date committed for delivering the possession of the flat to them. If the period of limitation is computed from 15.10.2014 i.e. three years from the date of the allotment letter, the complaint having been filed on 15.07.2015, was well within limitation. In any case, the complainants would have recurrent cause of action till the time the possession of the flat is delivered to them in terms of the allotment letter issued to them by the OPs. Therefore, there is no merit in the plea that the complainant is barred by limitation.
10. On merits, as noted earlier, it is not in dispute that the OPs had allotted a flat measuring 828.40 sq. ft. of carpet area to the complainants alongwith one car parking, in the project which it was seeking to develop, in terms of its development agreement dated 20.12.2007 with the owners of the plot. Though no specific time limit for delivering possession of the flat stipulated in the allotment letter, and the OPs did not come forward for execution of a formal agreement with the complainants in terms of the provisions contained in Maharashtra Ownership of Flats (Regulation of the Promotion of Construction Sale Management and Transfer), Act 1963, it can hardly be disputed that the OPs were required to deliver possession of the flat within a reasonable time, after completing construction and obtaining the requisite occupancy certificate. It is also an admitted position that the OPs did not even commence the construction of the flat subject matter of the allotment to the complainants and now the development rights in respect of the plot on which the building was to be constructed, have been given to OP No. 4 M/s Joy Shelcon Pvt. Ltd. Obviously, this could not be done without consent of the OPs since a development agreement between the owners of the plot and M/s Joy Shelcon Pvt. Ltd. could be executed only after cancellation of the development agreement which the plot owner had executed with the OPs on 20.12.2007. Therefore, the OPs are squarely responsible for creating a situation in which the development rights got transferred from them to M/s Joy Shelcon Pvt. Ltd. Once the OPs had allotted a flat in the proposed project to the complainants, they were under a contractual obligation to construct the building and deliver possession of the flat to the complainants. That having not done so, and the OPs now not being in a position to construct the flat, they must necessarily compensate the complainants for the loss suffered by them on account of their failure to perform their contractual obligation.
11. When this matter came up for hearing on 27.07.2016, this Commission noticing that it will not be possible for the OPs to construct the flat allotted to the complainants, held that the OPs have either to provide a residential flat of approximately the same size and same/similar specifications in a comparable locality to the complainants at the cost at which the allotment was made to them or they have to pay compensation amounting to difference between the sale price agreed to be paid by the complainants and the prevailing market price of a comparable flat i.e. a flat in a comparable locality with approximately the same size and same/similar specifications. The parties were then directed to produce such evidence, as may be available to them, to prove the current market value of a comparable flat i.e. a flat of approximately the same size and same/similar specifications, in a comparable locality.
12. No evidence in terms of the aforesaid direction of this Commission has been produced by the OPs and as noted earlier, no one has been appearing for them. The complainants however, have filed an affidavit with additional documents in compliance of the said direction. The complainants invited quotations for purchase of a residential flat in the locality in which the flat allotted to them was to be located. As per the quotation received from M/s Property Lounge on 17.08.2016, a flat measuring 840 sq. ft. of carpet area in a project namely Satguru Shlok, 36 Road, Bandra (West) is available at the price of Rs. 75,000/- per sq. ft. The possession of the said flat is expected by October 2016 and according to the complainants, the distance between the aforesaid project and the project in which flat was allotted to them by the OPs is about 750 metres. As per the second quotation which the complainants have received from Wadhwa Group, a flat measuring 990 sq. ft. in Amar Jeevan at St. Martins Road, Bandra (West), is available at the price of Rs. 70,000/- per sq. ft. The construction of the aforesaid project is stated to be complete and it is at a distance of 100 metres from the project which the OP had planned and in which allotment was made to the complainants. The third quotation received by the complainants is from Sheth Realtors in respect of a flat measuring 869 sq. ft. in Beau Pride and the price offered is Rs. 65,282/- per sq. ft. The possession of the said flat is expected in December, 2017 and it is stated to be at a distance of 550 metres from the project abandoned by the OP.
13. The complainants have also placed on record certain agreements. As per agreement no. BDR15/2974 executed in April 2016, a flat measuring 795 sq. ft. was sold at the price of Rs. 88050/- per sq. ft. in Fortune Heights, Bandra (West). As per another agreement which was executed in March 2016, a flat measuring 731.16 sq. ft. in a project namely Otters View, Bandra (W) was sold at a price of Rs. 69342/- per sq. ft. Three other agreements have been filed by the complainants, two of which have been expected in November 2015 and one has been expected in February 2015. Different flats in Bandra (West) were sold vide above referred agreements, at the price of about Rs. 65,000/- per sq. ft. The flats sold at the price of about 65,000/- per sq. ft. are stated to be bare and shell flats.
14. It would thus be seen that the minimum price of a residential flat in Bandra (West), as per the documentary evidence produced by the complainants, is Rs. 65,000/- per sq. ft. of the carpet area. Computed at the said rate, the estimated current market value of the flat allotted by the OPs to the complainants comes to Rs. 5,38,46,000/-. As per the quotations received by the complainants, the price of one car parking is Rs. 20,00,000/-. If the aforesaid amount is added to the estimated price of the flat, the resultant price comes to Rs. 5,58,46,000/-. Since the OPs allotted the flat to the complainants at the aggregate price of Rs. 1.93 crores, they are required to pay the difference between the current estimated price and the price on which the flat was allotted to them i.e. Rs. 3,65,46,000/- as compensation to the complainants. As noted earlier, the alleged cash payment of Rs. 67 lacs has not been denied in the written version filed by the OPs. The complainants have placed on record a kachha copy which according to them is signed by one Hanif Hingora, who at the relevant time, was a partner of OP No. 1. The total amount paid by them comes to Rs. 1.93 crores.
15. For the reasons stated hereinabove, the complainant is disposed of with the following directions:
(1) The OP shall refund the amount of Rs. 1,87,00,000/- which they have received from the complainants, to them within six weeks from today.
(2) The OPs shall pay a sum of Rs. 3,65,46,000/- as compensation to the complainants within six weeks from today.
(3) If the payment in terms of this order is not made within the time stipulated herein, it shall carry interest @ 10% per annum from the date of this order till the date of payment.
(4) The OPs shall also pay Rs. 10,000/- as the cost of litigation to the complainants.