Per S.T. Barne – Judicial Member:
1. Complainants, Mr.Shekhar Rijhwani and Mrs.Sharmista Shekhar Rijhwani are husband and wife. They are resident of Bandra West, Mumbai. They were in need of purchase of flat with specious accommodation and various facilities. Therefore they approached the opponent no.2 who assured the complainants that the flat would be ready for occupation within eighteen months and possession would be given by December, 2015. Believing his representation the Complainants booked flat bearing Unit No.B-1709 on the 17th Floor of Tower B in Alta Monte Building to be constructed at Tadi Compound at Malad (East) in Mumbai. The total consideration of the flat was agreed to Rs.2,50,54,600/20. The complainants have paid total amount of Rs.51,70,741/- in installments, which works out to 20.6% of the total consideration. Since the opponents have delayed the construction and has not given possession within stipulated time, the complainants discussed with the opponents and submitted letter for cancellation of booking and for refund of amount paid. Since the opponent did not refund the money the complainants sent them e-mail dated 22/08/2016. In reply opponents sent e-mail dated 17/11/2016 to the complainants informing that the company’s management had been requested to approve a full refund of Rs.51,70,741/- within a period of three months. However, the opponents sent allotment letter dated 28/12/2016 to the complainants asking them to agree for mortgage of land. It is the case of the complainants that there was no agreement till this time despite of receiving more than 20% amount by opponents out of total consideration, the opponents thereby violated the provisions of Maharashtra Ownership Flats Act. Hence, the complainants have issued letter to the opponents on 14/03/2017 to refund the entire amount of Rs.51,70,741/-. As the opponents failed to refund the amount the complainants approached to this Commission.
2. It is the contention of Complainants that cause of action arose in Mumbai and the complainants have claimed refund of the amount paid to opponents along with interest and compensation amounting to total sum of Rs.79,55,076/-. Thus, this Commission has territorial jurisdiction and pecuniary jurisdiction.
3. Opponents have appeared before this Commission and filed written version. Said written version is at page nos.C-26 to C-33 of compilation. The opponents have denied all adverse contentions in the complaint. It is the contention of opponents that the complainants approached the opponents somewhere on 24/02/2014 to purchase the Unit No.B-1709 ON THE 17TH Floor of Tower B in Alta Monte Building to be constructed at Tadi Compound at Malad (East) in Mumbai. Total consideration was agreed to Rs.2,50,54,600/-. The complainants paid Rs.7,00,000/- on 24/02/2014 with application as fee/token money in respect of said flat. In the said application in Clause (vii) of the terms and conditions signed by the complainants, it is mentioned that “if the Applicant/s wish to withdraw from/cancel the application, the amount of application fee paid by him/them shall stand forfeited”. The complainants were not regular in payment of installments. Hence, the amount of Rs.1,13,703/- is due from the complainants towards delayed payment. It is admitted that the complainants have paid total amount of Rs.51,70,741/- till 23rd August, 2016. The complainants due to financial difficulties wanted to cancel the booking of the flat. However, under the guise of alleged delay they claimed refund of money with interest. The opponents never promised the complainants that possession of the flat would be handed over within a period of eighteen months, it is general practice that the possession of flat is given within the period of about three years from the date of execution and registration of the Agreement for Sale subject to Force Majure events. The complainants have abruptly cancelled the booking and caused financial loss to the opponents. Hence, the opponents have prayed for dismissal of the complaint.
4. The complainants have submitted affidavit of evidence and the documents in support of their complaint. List of documents is attached at page 18 and the documents such as payment receipts, e-mails, letters and correspondence between parties are at page nos.19 to 36, including the letter of allotment dated 28/12/2016 issued by opponents to the complainants. On the other hand, the opponents filed pursis on 22nd March, 2018 before the Commission that they do not want to lead further evidence and the same has been recorded in the roznama dated 23rd March, 2018. Hence, matter was kept for final hearing from time to time. The complainants also submitted written notes of arguments in this matter. Hence, considering the respective pleadings and documents produced on record by the complainants the complaint is decided by this Commission.
5. On perusal of the pleadings of the parties and documents produced on record, it clearly reveals that the complainants have booked a flat in a building being constructed by the opponents and the opponents agreed to sell Unit No.B-1709 on the 17TH Floor of Tower B in Alta Monte Building to be constructed at Tadi Compound at Malad (East) in Mumbai, for total consideration of Rs.2,50,54,600/- is not disputed. According to complainants they made payment of Rs.51,70,741/- by installments since 24/02/2014, 21/07/2014. It is not disputed that the complainants have deposited more than 20% amount out of total consideration of the flat till 21/07/2014. According to complainants the opponents assured to make construction within eighteen months and to give possession to the complainants. Admittedly, no agreement is executed by the opponents in spite of receiving more than 20% amount out of total consideration. However, payment receipts are produced on record showing the payment made towards booking, besides further installments, totaling Rs.51,70,741/-. As submitted by the complainants on affidavit the opponents have not started construction and there was no possibility of completing construction and handing over possession within stipulated time.
6. The complainants are knowing that they have discussed with opponents for cancellation and accordingly as per letter sent to opponents on 22/08/2016 claimed refund of the entire amount. The aforesaid contentions of the complainants thus are supported by affidavit and documents. On the other hand the opponents have only produced the extract of payment made by complainants from time to time and according to opponents the complainants were not regular in payment. Therefore, the complainants themselves are liable to pay interest on delayed payment as they have expressed their inability to complete the payment as shown in the said extract, which is at page no.C-34 filed along with written version. It is also pleaded that, as the complainants have expressed their inability to complete the payment, they themselves are asking for cancellation and therefore, the opponents are entitled for forfeiture of booking amount of Rs.7,00,000/- as per agreement and amount of Rs.1,13,703/- towards interest on delayed payment.
7. In fact, besides the extract at page 34 of the complaint compilation produced by opponents there is no single document to show that the opponents have ever made correspondence with the complainants making demand of any such delayed payment or interest thereon. No progress of work is also intimated to complainants. Therefore, there is no substance in the bare submission of opponents that due to financial difficulties complainants wanted to cancel the booking.
8. It is apparent that the opponents have not adduced evidence denying correspondence made by complainants on 22/08/2016 and reply of opponents on 17/11/2016, which is at page nos.13 and 14 regarding cancellation of booking. It clearly reveals from it that, for about two years there was no execution of registered agreement made by opponents in spite of receiving more than 20% of the amount of consideration of flat. There found no progress in commencement of construction also. Therefore, the complainants have decided to cancel the booking after having discussion with the opponents. It reflects from the reply dated 17/11/2016 given by the opponent to said letter issued by complainants for cancellation of booking that the opponents gave assurance to refund of entire amount within three months from getting approval of company. It reveals that, as the opponents failed to refund the amount, the complainants are constrained to file this complaint. It further reveals that, even after the aforesaid correspondence the opponents have issued allotment letter dated 28/12/2016 to the complainants mentioning the terms and conditions regarding forfeiture of booking amount, interest on delayed payment and forfeiture of 10% of earnest amount. In fact, there is no document produced on record showing such terms and conditions agreed by the complainants or any agreement was executed between the parties for alleged forfeiture of amount till then.
9. It appears that by subsequent issuance of allotment letter the opponents have not only committed deficiency of service, but also adopted unfair trade practice. Hence, in the circumstances, we are of the opinion that the complainants have proved his complaint as to deficiency in service on the part of the opponents and therefore, they are entitled for refund of amount as well as amount towards mental agony and costs of litigation. Hence, the order:
ORDER.
(i) The consumer complaint is partly allowed.
(ii) The opponents are hereby directed to refund to the complainants amount of Rs.51,70,741/- along with interest @ 9% per annum from the date of filing of complaint till realization of entire amount.
(iii) The opponents are also directed to pay to the complainants compensation of Rs.25,000/- towards mental agony and Rs.10,000/- towards costs of proceeding.
(iv) Parties to bear their own costs.
(v) Copies of the order be furnished to the parties.
