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BOMBAY STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MUMBAI
S.P. Tavade, President and
S.T. Barne, Judicial Member
Padma Soni – Complainants.
versus
M/s. Monarch
Greenscapes and Ors. – Opp. Parties
Consumer Complaint No.CC/17/17
Decided on 20.4.2023
Counsel for the Parties:
For the Complainant:Pooja Kanade, Advocate
For the Opp. Party Nos.1, 6 and 9:Digambar Thakare, Advocate
For the Opp. Party No.11:Pratibha Patil, Advocate
Headnote:
Consumer Protection Act, 1986 – S.12(1)(a), S.17[Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession – Delayed construction - Deficiency of service – proof of - Non execution of Document - It has also come on record that the opponent nos.1 to 10 have executed mortgage deed in respect of constructed property that is flat sold by them (as shown in the list attached to mortgage deed). In spite of which the opponent no.1 to 10 have not completed the transaction between them and complainant – On facts, the opponent nos.1 to 10 have committed deficiency in service towards the complainant by not executing the registered agreement, and by delaying the construction and deprived them from getting their own flat, as expected by them, and thereby caused mental agony and financial loss to the complainant - Thus for non-compliance and delaying construction, the opponent nos.1 to 10 are solely responsible as the transaction taken place between complainant and opponent nos.1 to 10. Thus, the complainant has proved relationship as consumer and service provider between them - The opponent nos.1 to 10 though knowing the contentions of notice issued by Complainant they failed to challenge the evidence of complainant and documents produced by them as mentioned earlier. Hence, the fact that complainant has paid 40% amount of consideration and the amount of payment made against consideration price remained undisputed – Therefore in the given fact and circumstances of present case the complainants are entitled for refund of amount of Rs.24,27,500/- paid towards purchase of flat with interest at the rate of 12% p.a. from the date of accepting 40% of amount issuing allotment letter 04/07/2014 from opponent nos.1 to 11. In addition to that the complainant is entitled for compensation of Rs.2,00,000/- towards mental agony and Rs.25,000/- towards cost of proceeding from opponent nos.1 to 11 – Therefore Complaint is allowed, OP’s directed to refund the amount. [Paras 6 to 20].
ORDER
S.T. Barne, Judicial Member—The complainants Mrs.Padma Soni has filed consumer complaint under Section 12 of the Consumer Protection Act, 1986.
It is the case of the complainant that she is resident of B.A.R.C. Colony, Anushakti Nagar, Mumbai. Her husband was about to retire in the year 2018. Hence, she was thinking to purchase the flat in good surrounding. She came across the project of opponents called as “Monarch Greenscapes”, situated at Akurli Village, Taluka Panvel, Dist. Raigad. In the year 2011, it was widely advertised by circulating brochure in respect of said project. It was assured by the opponents that said project was approved by all concerned authorities and Project Commencement Certificate has been procured by the concerned department and the construction work is likely to be finished in the year 2016 and possession will be handed over in the mid of 2017. Therefore, complainant booked the Flat bearing No.901 on 9th floor, in Type “E” Wing, situated at Survey No.109, 110, 111, 112, 113 at Village Akurli, Taluka Panvel, Dist. Raigad for total consideration of Rs.49,25,000/-. As per demand of opponents, the complainant made payment of 40% of the total sale consideration. The Opponents thereupon issued allotment letter dtd.4th July, 2014, signed by authorized representative of opponents. Opponents have also acknowledged the receipt of amount of Rs.24,27,500/- vide allotment letter dated 4nd July, 2014. The complainant made payment of amount of Rs.22,70,000/- paid by cheque and Rs.1,57,500/- by cash.
2. The complainant observed that the opponents have not commenced the construction work for about three years. Therefore, complainant approached the opponents. They gave false assurance that they will finish the project and deliver the possession of flats within agreed period. The complainant has adhered all the terms and conditions. In spite of making payment of 40% of the amount the opponents failed to comply the statutory obligation as per MOFA (The Maharashtra Ownership Flat Act).
3. It is further alleged that in spite of follow up with the Opponents they did not make clear communication. After some time the opponents were untraceable in the month of March to October, 2015. The complainant when visited their office he found that the Opponents have closed the registered office at Monarch Empire, Villa 1, Mayuresh Chambers, Plot No.50, Sector-11, CBD Belapur, Navi Mumbai. Thereupon the complainant realized that the opponents have misappropriated their funds and not made construction to deliver the possession of flat within time. On 10th August, 2016, the complainant and the purchasers have issued common legal demand notice to the Opponents to refund their amounts paid towards booking fees and installment for purchase of flat in the project of opponents namely; Monarch Greenscapes. The opponents have committed deficiency in service towards the complainant. Hence, she have filed present complaint claiming refund of Rs.24,27,500/- paid to the opponents for purchase of flat with 24% interest from the date of payment. The complainant has also claimed Rs.5,00,000/- towards damages for deficiency in service, Rs.2,00,000/- towards mental agony and Rs.25,000/- towards costs of proceeding.
4. After admitting the complaint notices were issued and served upon the opponents. Opponent nos.1 to 10 though served with notices, the opponent nos.1 to 10 have not filed their written version within time and chosen to remain absent in the present proceeding. Hence, the complaint is proceeded without written statement against opponent nos.1 to 4, 5 and 6 to 10.
5. The opponent no.11 has filed his written version at page nos.59 to 68 of compilation of this proceeding. The opponent no.11 has denied all allegations made in the complaint. It is denied that the complainant is a “Consumer” of opponent no.11. He has also denied the mortg
