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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
Atul Mohan Joshi Complainant
versus
Shubh Enterprise and Ors. —Opp. Parties
Consumer Case No.22 of 2016
Decided on 15.9.2017
Counsel for the Parties:
For the Complainant:Mr. Manoj Mhatre, Advocate
For the Opp. Parties:Mr. S.B. Prabhavalkar, Advocate
IMPORTANT POINT
Value of services in such cases would mean sale consideration agreed to be paid by flat buyer to developer.
Headnote:(A) Consumer Protection Act, 1986—Section 21—Real estate—Booking of flat—Non-construction of flat—Value of services in such cases would mean sale consideration agreed to be paid by flat buyer to developer—Even if disputed amount of Rs.17,00,000/- is excluded from consideration, National Commission would have pecuniary jurisdiction to entertain complaint where value of goods or services and compensation claimed, exceeds Rs.1 Crore.
Held: As far as the issue of pecuniary jurisdiction of this Commission which the learned counsel for the OP raised during the course of arguments is concerned, as held by a three-Members Bench of this Commission in CC No.97 of 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., the value of the services in such cases would mean the sale consideration agreed to be paid by the flat buyer to the developer. The said consideration admittedly, was Rs.73,00,000/- even if the disputed amount of Rs.17,00,000/- is excluded from consideration. In terms of Section 21 of the Consumer Protection Act, this Commission would have the pecuniary jurisdiction to entertain the complaint where the value of the goods or services as the case may be and the compensation if any claimed, exceeds Rs.1 Crore. One of the reliefs claimed by the complainant is a direction to the OP to re-imburse and/or pay to him the prevailing market value of the suit flat measuring about 1060 sq. ft. in the building Shubh Manas Co-opeative Housing Society Limited at D.N. Nagar, Link Road, Andheri (West), Mumbai. As per the ready reckoner issued by the Government of Maharashtra, the market value of such a flat on the date of filing of this complaint itself was more than Rs.1 Crore. Therefore, it would be difficult to dispute that this Commission does possess the requisite jurisdiction to entertain the complaint. (Para 6)
(B) Consumer Protection Act, 1986—Section 21—Contract Act, 1872—Section 55—Real estate—Booking of flat—Non-construction of flat—Market value of a flat of 776 sq. ft. of built-up area on the date of institution of complaint, when calculated as per value given in ready reckoner given by Government of Maharashtra comes to Rs.1,56,41,056/-—OP shall refund balance principal amount of Rs.21,02,000/- to complainant alongwith compensation quantified at Rs.45,64,388/-—OP shall also pay sum of Rs.25,000/- as cost of litigation to complainant.
Held: The next question which arises for consideration is as to what amount the complainant is entitled as compensation on account of failure of the OP to construct and deliver possession of residential flat having super built-up area of about 1060 sq. ft. to him in terms of the allotment dated 11.06.2010. As noted earlier, the minimum market value of such a flat in the locality in which it was to be situated, was Rs.2,00,000/- per sq. mtr. which comes to Rs.20,156/- per sq. ft. of built-up area. On the last date of hearing, the complainant was requested to approach the Government School of Planning & Architecture to report as to what would be the built-up area of a flat having super built-up area of1060 sq. ft., based upon the norms/practices prevalent in June 2010 in Andheri (West). However, in the absence of approved building plans, the above referred School could not give the required information. The complainant therefore, agrees to accept the built-up area given by the OP for the aforesaid flat. The built-up area according to the OP comes to 776 sq. ft. The market value of a flat of 776 sq. ft. of the built-up area on the date of institution of this complaint, when calculated as per the value given in the ready reckoner given by the Government of Maharashtra comes to Rs.1,56,41,056/-. The aforesaid rate carries escalation to the extent of 5% if the flat is situated on the tenth floor of the building. Applying the aforesaid escalation, the value of a flat having built-up area of 776 sq. ft., on the tenth floor, comes to Rs.1,64,23,108.80p on the date of institution of the complaint. After deducting the agreed sale price of Rs.90,00,000/- from the aforesaid amount, the balance amount comes to Rs.74,23,108.80p (say Rs.74,23,108/-). This amount represents the excess amount which the complainant will have to pay if he is to buy a flat admeasuring 776 sq. ft. of built-up area on the tenth floor of the building on the date of institution of the complaint. Had the OP honoured its obligation under the letter of allotment, the value of the flat today would have been Rs.1,64,23,108.80p. However, this would have been possible only on the complainant making payment of Rs.90,00,000/- to the OP calculating the payment already made by him. He having paid only Rs.25,02,000/- including the amount of Rs.4,00,000/- having already been received back by him. If simple interest @ 12% per annum till the date on which this complaint was instituted, is calculated on the amount which the complainant did not pay, the figure is stated to be Rs.28,58,720. The complainant is therefore, entitled to only a sum of Rs.45,64,388/- (Rs.74,23,108/- - Rs.28,58,720/- ) as compensation from the OP, in addition to refund of the balance principal amount of Rs.21,02,000/-.
For the reasons stated hereinabove, the complaint is disposed of with the following directions:
(i) The OP shall refund the balance principal amount of Rs.21,02,000/- to the complainant alongwith compensation quantified at Rs.45,64,388/-.
(ii) The payment in terms of this order shall be made within three months from today, failing which it shall carry interest at the rate of 9% per annum w.e.f. three months from today.
(iii) The OP shall also pay a sum of Rs.25,000 as the cost of litigation to the complainant. (Paras 8 and 9)
Result: Appeal dismissed.
V.K. Jain, Presiding Member—The facts giving rise to the filing of this complaint, as noted in the order of this Commission dated 24.07.2017, can be summarized as under:
“The case of the complainant is that OP No.1 allotted a residential flat no. 1004 admeasuring 1060 sq. ft. to him vide a letter dated 11.06.2010 for a total agreed consideration of Rs.73,00,000/-. No specific time period for delivery of possession of the flat to the complainant was stipulated in the allotment letter though the case of the complainant is that OP No.1 had promised to deliver possession by March 2012. It appears that the land on which the building was to be constructed by OP No.1 belongs to OP No.2 D.N. Nagar Manas Cooperative Housing Society Limited which had entered into a construction agreement with OP No.1. Later on, the agreement between OP No.1 & 2 came to be cancelled and OP No.2 entered into an independent agreement with OP No.3 for construction of residential flats on its property. Though an agreement was executed between the complainant and OP No.1 sometime in early 2014 for refund of a total sum of Rs.38,44,740/- to the complainant, the payment in terms of the said agreement was not made to the complainant. Therefore, in view of clause 2.8 of the said agreement, the aforesaid understanding/settlement stood cancelled and the complainant became entitled to the flat which was allotted to him. Since the flat has not even been constructed, the complainant is before this Commission seeking the following reliefs:
1. That this Hon. Commission be pleased to hold the opposite party no. 1,guilty of being deficient in providing proper and defect-free services and further guilty of following unfair trade practice.
2. That this Hon. Commission be pleased to direct the opposite party no. 1, firstly to rectify the defects in their services and make the said flat ready viz. Flat No. 1004, approximately 1060 sq. ft. (Super Built Up) area, on the 10th floor, in the building “Shubh Manas Co-operative Housing Society Ltd., at D.N. Nagar, Link Road, Andheri (West), Mumbai – 400 058, lying being and situate at immoveable property bearing Survey No. 106-A, City Survey No. 195 (Part), being a saleable component, complete in all respects of construction by obtaining the Building Completion Certificate and the Occupation Certificate, by accepting the balance consideration.
3. That this Hon’ble Commission be pleased to direct the opposite party to execute the proper Agreement for sale in favour of the Complainants pertaining to the said flat viz. Flat No. 1004, approximately 1060 sq. ft. (Super Built Up) area, on the 10th Floor, in the Building, “Shubh Manas Co-operative Housing Society Limited, at D.N. Nagar, Link Road, Andheri (West), Mumbai – 400058, lying being and situate at immovable property bearing Survey No. 106-A, City Survey No. 195 (Part), being a saleable component, and co-operate with the Complainants in getting the same registered with the Sub-Registrar of Assurances, by accepting the balance payments and hand over quiet, vacant and peaceful possession of the same to the complainants by accepting the balance consideration.
4. That in the event of opposite party herein is not in a position to hand over the quiet, vacant and peaceful possession of the said flat no. 1004, as per prayer clause (c) above at the earliest, then in the alternative to the above, the opposite party be directed to allot/procure a similar residential flat admeasuring 1060 sq. ft. S Built Up area having similar amenities and standing, to the Complainants in the vicinity of the Flat No. 1004 and/or of the project of the Opposite Party at the costs and expenses of the opposite party.
5. That in the event, the opposite party no. 1 is not in a position to even comply with the directions as per prayer clause (d),t hen in that event, this Hon. Commission be pleased to direct the opposite party no. 1 to reimburse and/or pay to the complainant the prevailing market value
