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MAHARASTRA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
S.B. Mhase, President, P.N. Kashalkar, Judicial Member and S.P. Lale, Member
SANJAY D. BERDE - Appellant
Versus
SHREE SANDIPAK ASSOCIATES AND ORS. - Respondents
Consumer Complaint No. CC/07/6
Decided on : 16-09-2010
Mr. U.B. Wavikar, Advocate, for the Appellant; Mr. N.S. Parte h/f. Mr. S.B. Prabhawalkar, Advocates, for the Respondent
The main legal point established in the judgment is that the allotment letter itself constituted a binding contract between the parties, and the builder's attempt to demand a higher price for the flat at the time of execution of the agreement was unfair and a violation of the statutory duty under the Maharashtra Ownership Flat Act, 1963.
Headnote:
Deficiency in Service - Maharashtra Ownership Flat Act, 1963 - [DEFICIENCY IN SERVICE] - [REAL ESTATE] - [Maharashtra Ownership Flat Act, 1963, Section 4, Regulation No. 33(7) of Development Control Regulations] - The court found that the builder's failure to execute an agreement of sale and hand over possession of the flat to the complainant, despite receiving a substantial part of the consideration amount, amounted to deficiency in service under the Maharashtra Ownership Flat Act, 1963. The court emphasized that the allotment letter itself constituted a binding contract between the parties, and the builder's attempt to demand a higher price for the flat at the time of execution of the agreement was deemed unfair and a violation of the statutory duty not to accept any monies other than the booking amount without executing and registering the agreement of sale.
Fact of the Case:
The complainant booked a flat in a proposed building and paid a substantial amount towards the purchase price. The builder failed to execute an agreement of sale and hand over possession of the flat, citing the need for a Commencement Certificate for construction of certain floors.
Finding of the Court:
The court found that there was a binding agreement of sale between the parties, the complainant had paid a substantial amount towards the purchase price, and the builder's failure to execute the agreement and hand over possession amounted to deficiency in service.
Issues: The issues included proving the existence of an agreement of sale, payment of a substantial amount towards the purchase price, and establishing deficiency in service on the part of the builder.
Ratio Decidendi: The court held that the allotment letter itself constituted a binding contract, and the builder's attempt to demand a higher price for the flat at the time of execution of the agreement was unfair and a violation of the statutory duty under the Maharashtra Ownership Flat Act, 1963.
Final Decision: The court allowed the complaint, directed the builder to deliver possession of the flat to the complainant upon payment of the remaining price, awarded compensation for mental harassment, and ordered the builder to execute a conveyance deed and provide copies of Occupation and Completion Certificates.
ORDER
P.N. Kashalkar, Judicial Member - This complaint has been filed by the complainant alleging deficiency in service on the part of O.P. No. 1-firm engaged in development and construction of the building and also against two partners of the said firm.
2. Complainant pleaded that O.P. No. 1 is the partnership firm engaged in the business of building/development of land and property and O.P. Nos. 2 and 3 are the partners of O.P. No. 1. Complainant pleaded that somewhere in September 2004, builder/developer had advertised in local newspaper that flats are available for sale in their proposed 'suyog Apartments . Complainant approached O.Ps. On 10.10.2004 and after due discussion complainant agreed to purchase a flat admeasuring 835 sq.ft. in the proposed project of O.Ps. Known as 'suyog Apartments' for consideration of Rs. 40,50,000. Complainant pleaded that in furtherance of the said agreement, O.Ps. Issued letter of allotment for sale of flat No. 601 situated on 6th floor of proposed building 'suyog Apartments . By letter dated 28.10.2004, O.Ps. Confirmed allotment/sale of flat No. 601 for Rs. 40,50,000. O.Ps. Also confirmed the manner in which complainant was required to pay balance consideration amount for flat No. 601. They confirmed initial payment made by the complainant in respect of consideration of the said flat. Complainant in all paid Rs. 10 lakhs towards the purchase price of the flat and O.Ps. Issued receipt dated 11.11.2004 acknowledging receipt of Rs. 10 lakhs paid by the complainant towards the purchase of flat No. 601, 6th floor of the building known as 'suyog Apartments , situated at Taikal Wadi road, now known as Manorama Nagarkar Marg, Mahim, Mumbai 400 016.
3. The complainant pleaded that O.Ps. Had assured that they would execute Agreement of Sale after MHADA and BMC gives Commencement Certificate to it. However, till filing of the complaint, O.Ps. Had not entered into an Agreement of Sale though had paid total amount of Rs. 10 lakh towards the part consideration of the flat. According to complainant, non-execution of agreement on the part of O.Ps. Is per se deficiency in service and it is contrary to Maharashtra Ownership Flat Act, 1963. Complainant pleaded that after repeated assurances, O.Ps. Failed to execute agreement. Complainant fears that because of rise in Estate market, O.Ps. Are deliberately avoiding to execute an agreement of sale because presently market value of the flat would fetch around Rs. 60 lakh and O.Ps. Are intending to sell the same to some other person and, therefore, he filed consumer complaint praying that O.P. should be directed to hand over vacant possession of flat No. 601 admeasuring 835 sq.ft. in 'suyog Apartments' situated at Taikal Wadi road, now known as Manorama Nagarkar Marg, Mahim, Mumbai 400 016 and to direct the O.Ps. Also to refund him the amount of Rs. 60 lakh in lieu of possession of the flat and to direct O.Ps. To pay to the complainant Rs. 3 lakh as compensation for mental harassment and also claimed Rs. 50,000 towards cost of litigation. Complainant filed affidavits and documents in support of the claim in the complaint.
4. O.Ps. Contested the complaint by filing written statement. According to O.Ps., complaint as filed by the complainant is absolutely false and frivolous and should be dismissed with compensatory cost. O.Ps. Pleaded that O.P. No. 1 firm was reconstituted w.e.f.19th March, 2006 and original partner Mr. A.G. Sawant has retired from the said firm and Mr. Chandrakant Shankar Thakur has been appointed as partner in place of retired partner Mr. A.G. Sawant. Though complainant was aware of this fact, he has suppressed this fact with mala fide intention. So according to O.Ps. Complaint as filed is bad in law for mis-joinder of necessary party or non-joinder of necessary party. On this ground also O.Ps. Pleaded that complaint should be dismissed with cost.
5. O.Ps. Further pleaded that the complaint is premature and in any event there is no concluded contract
