2012(3) ALL MR (JOURNAL) 15
CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA STATE, MUMBAI

S.B. MHASE AND DHANRAJ KHAMATKAR, JJ.

Shoan Ashok Khetarpal Vs. M/S. Dorabjee Estates Pvt. Ltd.

Complaint Case No. 52 of 2009

3rd May, 2011

Petitioner Counsel: Smt. UMA KHETARPAL
Respondent Counsel: Mr.PRASHANT RAJPUT

Consumer Protection Act (1986), Ss.2, 12 - Contract Act (1872), Ss.7, 10, 14 - Consumer complaint - Housing loan - Allotment letter issued by opponent - Allotment letter is a contract between the parties - Complainant bona fidely completed his part - The opponent miserably failing to comply his part - Under the circumstances, held, opponent cannot legally terminate the allotment of the complainant and again ask for more consideration than what is agreed between the parties. (Para 16)

JUDGMENT

Mr.DHANRAJ KHAMATKAR, Hon'ble Member :- Mr.Shoan Ashok Khetarpal (herein after referred to as 'complainant') had filed the consumer complaint on 19/03/2009 against M/s.Dorabjee Estates Pvt.Ltd. through Mr.Dorabjee Jahangir (herein after referred to as 'opponent') under the Consumer Protection Act, 1986 alleging deficiencies with following prayers:-

"(A) The respondent builder may be directed to issue the documents required to get the Bank Loan.

(B) The Respondent builder may be directed to conclude the Sale of the two flats at the initially agreed consideration of '1450/- per sq.ft.

(C) The Respondent builder may be directed to complete the proceedings of the Sale of the two flats within a stipulated time frame.

(D) Any other relief deemed fit by this Hon'ble Forum."

2. The complaint was subsequently numbered as CC/09/52. The facts leading to the consumer complaint can be summarized as under:-

Complainant had booked flat nos.301 & 302 on the third floor in Phase II of the building known as 'Dorabjee Enclave', Salunkhe Vihar Road, Kondhwa Khurd, Pune with the opponent. Accordingly, opponent has issued an allotment letter dated 29/09/2005 confirming the booking of two One Bedroom flat nos.301 & 302 in Phase no.II admeasuring 698 sq.ft. each for a price of '1450/- per sq.ft. which is subject to the realization of the total amount of each flat i.e. '10,12,100/- and confirmed the payment of '30,000/-. Thereafter complainant had made payment of '1,25,500/- on 28/10/2005 by a cheque drawn on the ICICI bank and the opponent had issued a receipt dated 07/11/2005.

3. The complainant had approached the ICICI bank for loan and the ICICI Bank has sanctioned the loan of '20,00,000/- vide its offer letter for loan dated 20/1/2005 subject to the condition of production of legal and technical clearance to the project and approved sanction plan of the Local authority. However, the loan was not disbursed as the opponent not supplied documents to the complainant. On 25/10/2007 opponent had sent a letter to the complainant asking to pay an amount of '15,65,070/- and MSEB charges '90,000/- and, accordingly, complainant had paid '90,000/- for the MSEB connection and the opponent has issued a receipt dated 17/11/2007 and MSEB has sanctioned the electric connection.

4. Similarly, the complainant has paid '15,000/- for the parking place and the opponent has issued a receipt thereof dated 27/10/2005. Again Complainant approached to the ICICI bank for Home Loan and the ICICI bank has sanctioned a loan of '21,04,079/- subject to the production of legal and technical sanction of the property being financed and the sanctioned building plan. Complainant approached to the opponent, however complainant has not received the papers from the opponent required for the sanction of the loan. Hence the complainant issued a notice stating that the opponent had not supplied the papers required for raising the loan. As the complainant had not received the papers required for raising the loan, the complainant approached to the local authority i.e. Pune Corporation for the information regarding the permission secured by the opponent. Complainant then approached to the Akhil Bhartiya Grahak Panchayat and the Akhil Bhartiya Grahak Panchayat requested the opponent to sort out the matter in good intention. As the opponent failed to deliver possession of the flats, the complainant has filed this consumer complaint.

5. Accordingly, notice was served on the opponent to remain present on 17/09/2009. The complaint was admitted on 02/12/2009. After admission of the complaint, opponent failed to file written version and hence last date was given on 21/01/2010. As the opponent miserably failed to file written version, matter was proceeded ex-pare in absence of written version and complainant was asked to file evidence under section 13 (4) of Consumer Protection Act, 1986.

6. Complainant has filed an affidavit along with the complaint and as evidence complainant had filed an allotment letter issued by the opponent, receipts of the payments made, sanction letter of the bank sanctioning the loan, dated 20/10/2005 and 10/01/2008, copy of the letter of the opponent dated 25/10/2007 asking the complainant to deposit balance amount of '15,65,070/-, receipt of the payment made towards the electricity charges, copies of the electric connections given by the Maharashtra State Electricity Board company, copies of the correspondence between complainant and opponent, the information received from the Pune Corporation under RTI Act regarding building permission, letter written by the Akhil Bhartiya Grahak Panchayat to the opponent regarding the grievance of the complainant and requesting the opponent to sort out the matter in good intention.

7. On 14/06/2010 matter was heard in the presence of both the parties and the matter was closed for orders on 09/07/2010. On 09/07/2010 as the judgement was not ready it was posted on 30/7/2010.

8. The opponent had sent a letter dated 12/07/2010 with an application for setting aside the ex-parte order along with affidavit of authorized representative of opponent and affidavit of the Architect Mr.Razzak Shaikh. These documents were sent by Registered A.D. Since the documents were received subsequently, the documents were tagged with the file to place on board. Copies of these documents were not sent to the complainant and hence we directed the opponent to give copies of the documents to the complainant and directed the complainant to file his say in respect of these documents and the matter was posted on 02/08/2010.

9. On 02/08/2010 Ld.counsel for the opponent was heard and in the interest of justice and to avoid the multiplicity of the litigation cost of '10,000/- was imposed on the opponent. After paying cost to the complainant, on 03/08/2010 the written version filed by the opponent and affidavit of the architect and the affidavit of the opponent are taken on record and directed both the parties to file additional evidence, if any.

10. In his written version opponent had admitted the payment of '1,25,500/- by the complainant, however, contended that booking was with specific understanding that Flat nos.301 & 302 will be confirmed as booked after obtaining TDR from third party. He further contended that booking was made through Architect Mr.Razzak Shaikh, who is the Architect for the project and known to both the parties. In support of his contention, he has filed affidavit of the Architect. He further stated that he is not aware about the loan proposal made by the complainant to the ICICI Bank. He stated that there was a TDR scam in Pune Corporation and he informed the complainant about the delay in construction and shown his willingness to refund the booking amount along with interest. However, the complainant intentionally avoided taking back the booking amount. He never assured the complainant that the flats will be handed over before 2006.

11. He further contended that the complainant had not suffered any hardship because the complainant himself chosen to wait till the clearance of TDR and not accepted the offer of opponent to refund the booking amount with interest.

12. He further contended that he was always ready and willing to perform his part of contract. However, the complainant failed and neglected to make payment of balance consideration. The construction is made without the financial support from the complainant. Opponent has shown his goodwill and bonafide by permitting to install electricity meter in the name of complainant without receiving the full consideration.

13. Opponent further contended that the complainant has breached and neglected in making payment of even a small amount in time and the opponent was left with no other option but to cancel the allotment of flat nos.301 & 302. He further contended that the complainant had approached the opponent and the opponent had called upon the complainant to pay the consideration @ '3400/- per sq.ft. O.P. admitted the fact that he had informed the complainant to wait till the TDR file is cleared by the Pune Municipal Corporation in response to the letter dated 21/07/2008 of the complainant.

14. The Opponent further stated that allotment letter does not amount to allotment of flat. He further stated that the complainant approached the Pune Municipal Corporation complaining that opponent had constructed the building without obtaining TDR and the opponent had to pay a penalty of '500/- per sq.ft. to prevent the demolition of the construction. Opponent admitted that the complainant had approached to Akhil Bhartiya Grahak Panchayat and Akhil Bhartiya Grahak Panchayat had called upon both the parties to settle the dispute amicably. However, complainant refused to move forward to settle the dispute. Therefore, opponent prayed that there is no deficiency in service or unfair trade practice on the part of opponent and prayed that the complaint be dismissed with cost.

15. On 18/08/2010 the authorized representative had filed additional affidavit in reply to the written version of the opponent and both the parties have closed their evidence. Both the parties have filed their short notes of arguments.

16. The authorized representative had argued the case. On behalf of opponent their Learned counsel Mr.Prashant Rajput had argued the case.

We have gone through the complaint, evidence filed by the complainant, written version and affidavit filed by the Authorized representative of the opponent, the affidavit of one Mr.Razzak Shaikh who is an Architect of the project, additional evidence filed by the Authorized representative of the complainant in response to the written version of the opponent and heard arguments of both the advocates.

The complaint involves whether the complainant proves deficiency in service on the part of opponent. Admittedly, complainant had booked flat nos.301 & 302 in B Wing, Phase II admeasuring 698 sq.ft. @ '1450/- per sq.ft. in the project "Dorabjee Enclave" to be constructed by the opponent. At the time of booking of the flat, complainant had paid '30,000/- on 29/09/05 and the opponent has issued a receipt. Opponent has issued allotment letter dated 29/09/2005 confirming the allotment of flat nos.301 & 302 in Phase II in "Dorabjee Enclave" mentioning the area of each flat and per square feet rate of '1450/-. Further, complainant had paid first installment of '1,25,000/- and the opponent has issued the receipt.

The complainant had approached for the Housing loan to the ICICI Bank. From the annexure 7 of the case papers it is seen that the ICICI bank has principally sanctioned the loan of '20 lakhs to the complainant and issued offer letter for loan dated 20/10/2005. Hence it is clear that after the booking of flat on 29/9/2005 the complainant had approached to the bank for Housing loan and it is clear from the ICICI Bank's offer letter dated 20/10/2005. Perusal of the loan sanction offer shows that the ICICI Bank has sanctioned the loan under certain conditions and condition letter pertains to the legal and technical clearance of the construction and the approved sanction plan of the Local authority and these two documents are to be provided by the opponent. It is the contention of the complainant that he approached to the opponent for necessary documents for the release of the loan. However, the opponent has not supplied the documents and hence, the loan proposal got lapsed.

The opponent by his letter dated 25/01/2007 informed the complainant that 85% construction of the building is complete and informed to pay a sum of '15,65,070/- and MSEB charges '90,000/-. In the same letter opponent further informed that the payment be made within 7 days to avoid interest of 2% per month. Accordingly, complainant paid MSEB amount of '90,000/- and opponent has issued a receipt. Again complainant approached to the ICICI Bank for Housing loan and ICICI bank has sanctioned the Housing loan of '21,040,79/- vide offer letter dated 10th January 2008. However, again opponent failed to supply necessary documents and hence the loan could not be disbursed and the proposal got lapsed. Chronology of events reveals that complainant after booking the flat, approached the ICICI Bank for the loan and ICICI Bank principally sanctioned the loan however not disbursed as the opponent failed to supply necessary documents. This shows that the complainant was ready to comply his part of contract. After receipt of letter dated 25/10/2007 written by the opponent for paying the amount of '15,65,070/- the complainant again approached to the bank and the bank has principally sanctioned the loan. However loan could not be disbursed. As requested by the opponent, complainant had deposited MSEB charges as well as charges for parking space. In short, the complainant has proved his bonafides.

It is the contention of the opponent that the allotment of the flats to the complainant was subject to sanction of TDR by the Pune Municipal Corporation. However, he could not get the TDR as there was a TDR scam in Pune Municipal Corporation and the complainant was aware. In support of this he has filed an affidavit of Mr.Razzak Shaikh who is an architect of the project. Mr.Razzak Shaikh in his affidavit stated that the complainant had booked the flats through him and at the time of booking the opponent had intimated to the complainant that the flats will be constructed only after necessary permissions and sanction of TDR and complainant was fully aware since beginning. Now the question arises as to what weightage is to be given to the testimony of Mr.Razzak Shakh?

Apart from this there is no evidence with the opponent to prove his contention. We cannot solely rely on the testimony of Mr.Razzak Shaikh as he is regular architect of the opponent. On the contrary, the documentary as well as circumstantial evidence proves that the booking of the flat was not subject to the sanction of the TDR. The allotment letter does not mention that the allotment is subject to sanction of the TDR. Further as soon as the complainant got the allotment letter, he approached to the bank for Housing loan and the bank has principally sanctioned the loan. Again after receipt of letter dated 25/10/2007 by the opponent, complainant approached to the bank for the sanction of the loan and the bank has principally sanctioned the loan. Had he been aware of the fact that the booking is subject to the sanction of TDR, complainant would not have approached to the bank for Housing loan.

Throughout the proceeding of this case, the conduct of the opponent is not fair. Complaint is filed on 19/03/2009 and was admitted on 02/12/2009. The opponent had not filed written version though sufficient opportunity was given and hence the matter was proceeded ex-parte in absence of written version. After hearing both the parties, matter was closed for orders on 14/06/2010 and the order was to be pronounced on 09/07/2010. However, on 09/07/2010 the order was not ready and the matter was adjourned on 30/07/2010. The opponent had sent written version, affidavit of the authorized representative of the opponent and affidavit of Mr.Razzak Shaikh through the post, which was placed before the Commission on 29/07/2010. With a view to avoid multiplicity of litigation and in the interest of justice, the matter was taken on board. From the documents filed by the opponent it is transpired that the written version was ready on 15/02/2010 and copy of it was given to the complainant. However, it is not filed before the Commission. Similarly affidavit of Mr.Razzak Shaikh is sworn on 23/03/2010 however not filed. Counsel for the opponent argued the case on 14/06/2010 but not prayed to recall the order to proceed ex-parte without written version. On 14/06/2010 Authorized representative of the opponent informed to the Commission that the flats are ready for possession and he is ready to hand over the possession at present market value of '3400/- per sq.ft. From the aforesaid facts it is clear beyond doubts that the opponent has tried his best to protract the matter. It seems that the opponent does not have any respect for law.

Complainant has approached to Akhil Bhartiya Grahak Panchayat however opponent have not responded. Ultimately, complainant had to approach Pune Municipal Corporation and obtained the information about the project of the opponent under RTI Act. The opponent had admitted in para 26 that he had to pay a penalty of '500/- per sq.ft. to prevent demolition. It is clear that the opponent without obtaining necessary permission from the Pune Municipal Corporation started the construction and as the construction was not with a proper permission, he could not supply the required papers to the complainant for the Housing loan.

Allotment letter issued by the complainant is a contract between the parties. Complainant has bonafidely completed his part. The opponent miserably failed to comply his part. Under the circumstances, opponent cannot legally terminate the allotment of the complainant and again ask more consideration than what is agreed between the parties. In his written notes of arguments, the opponent has stated that in addition to the balance amount of '15,65,070/- the opponent is entitled to get interest of '10,69,464.50 plus further interest @ 2% per month till realization of the amount. Legally speaking opponent is entitled to receive the consideration as per the allotment letter, as the opponent failed to provide papers required for raising the Housing loan to the complainant and, hence, legally opponent cannot claim interest on the delayed payment.

On the basis of evidence filed by the complainant and the circumstantial evidence, we come to the conclusion that there is deficiency of service on the part of the opponent. Consumer Protection Act, 1986 has been enacted by the law makers to give a speedy justice to the consumers. Present case is a best example of how the builders and developers exploit the consumers. In the instant case, with a view to protract the case the opponent has changed counsels thrice. Despite of giving reasonable opportunity, opponent had not filed his written version even after imposing cost. The opponent had sent written version through post after the case was closed for orders. In short, opponent has tried all types of dilatory tactics to protract the matter. Complainant had attended the Commission 18 times, one trip from Pune to Mumbai approximately costs '1000/-. Further the complainant applied to the bank for Housing loan twice and the bank has charged the processing fee for processing the loan twice. Taking into consideration facts of the case, circumstantial evidence and conduct of the opponent, one can imagine the mental agony and harassment experienced by the complainant. Looking to the facts of the case, we consider the compensation of '1 lakh to the complainant for mental agony and harassment which will meet the ends of justice.

Complainant had to run from pillar to post to secure his rightful claim and hence he is entitled for the cost. We deem it fit to award a cost of '10,000/-. We hold accordingly and pass the following order:-

ORDER

(1) Complaint is allowed.

(2) Complainant is hereby directed to pay an amount as per the allotment letter dated 29/09/2005 excluding the amount already paid. In order to avail the facility of Housing loan, opponent is directed to hand over copies of legal and technical sanction of the project and approved plan sanctioned by the Pune Municipal Corporation within a period of 15 days.

(3)On receipt of payment of consideration as per allotment letter dated 29/09/2005 the opponent is hereby directed to execute Sale deeds of flat nos.301 & 302 in "Dorabjee Enclave" and hand over possession to the complainant within one month.

(4) Opponent is hereby directed to pay compensation of '1 lakh to the complainant for mental agony and harassment within a period of two months from the date of order.

(5) Opponent to pay cost of '10,000/- to the complainant within a period of two months from the date of order and bear his own costs.

(6) If the amount of compensation and cost is not paid within two months, it will carry interest @ 9% p.a. till its realization.

(7) Copies of the order be furnished to the parties.

Complaint allowed.