STATES CONSUMER DISPUTES REDRESSAL COMMISSION, MUMBAI, MAHARASHTRA CONSUMER COMPLAINT NO.CC/224 of 2020 Mr. TONSE SHIVARAM SHETTY Aged: about 80 years, Occ.: Advocate Having his address at "Sneha" Plot No. 51, Mhada Bungalows, Jankidevi Public School Road, Sardar Patel Nagar, Andheri (West)

Mumbai 400 0530.

Tel.#. 2352 3639 / Mob.#.98200 71396 ...Complainant Email: tsshettyadvocates@gmail.com Versus

1. M/s. MOONGIPA REALTY PVT.

LTD.

(Formerly known as Axayraj buildwell Pvt. Ltd.)

Having office at:

203-204, Raigad Darshan, Opp. Indian Oil Colony, J. P. Road, Andheri (West), Mumbai 400 053 ...Opposite Party no.1 Tel.No.2635 8290 /Telefax: 2635 8291 Email: moongiparealty@gmail.com

2. Mr. RAJESH AGARWAL, Director M/s. MOONGIPA REALTY PVT.

LTD.

(Formerly known as Axayraj buildwell Pvt. Ltd.)

Having office at:

203-204, Raigad Darshan, Opp. Indian Oil Colony, J.P. Road, Andheri (West), ... Opposite Party no.2 Mumbai 400 053 Tel.#.2635 8290 / Telefax: 2635 8291 Email: moongiparealty@gmail.com BEFORE:

Mr. Mukesh V. Sharma, Presiding Member Dr. Satish A. Munde, Member APPEARANCE:

For Complainant : Adv.Santosh Shetty a/w Adv.Uday Wavikar For Opposite Parties : None.

JUDGMENT

(03/07/2024)

Per : Hon’ble Mr.Mukesh V. Sharma, Presiding Member

1. The Complainants have filed this complaint under section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as a said Act).

2. Complainant claimed himself a consumer and Opposite Party no. 1 is developer company and Opposite Party no. 2 is it’s director who are developing a project known as “The Ark Arcade”. Brief facts of the complainant’s case are as under-

a) The Complainant, Mr. Tonse Shivaram Shetty, an advocate aged 80 years, residing at "Sneha," Plot No. 51, Mhada Bungalows, Andheri (West), Mumbai, sought to purchase office premises from the Opposite Parties (OPs) to reduce travel time. The OPs, M/s. Moongipa Realty Pvt. Ltd. (formerly Axayraj Buildwell Pvt. Ltd.) and Mr. Rajesh Agarwal, represented they had the authority to develop "The Ark Arcade" project.

b) The OPs offered Office No. S-141 on the second floor, admeasuring

182 sq.ft. carpet area, for Rs. 35,34,400/. On 30/09/2011, the Complainant paid a booking amount of Rs. 22,94,080/- via cheque, receiving an allotment letter and receipt (Exhibit C-1). An Agreement for Sale was executed on 15/12/2011 and registered under No. 13860 of 2011.

c) The Agreement stipulated possession by 30/09/2012, along with the Occupancy Certificate and Building Completion Certificate. The Complainant made further payments totalling Rs. 39,67,180/-.

d) Despite these payments, the OPs failed to deliver possession of the office premises. The Complainant issued a legal notice on 07/08/2019 (Exhibit C-4), demanding possession and compensation for the delay.

e) The OPs responded on 03/09/2019 (Exhibit C-5), citing delays due to non-cooperation from the Society and other factors. They denied any liability for compensation.

f) The Complainant alleged the OPs diverted funds to other projects, constituting deficiency in service and unfair trade practices under the Consumer Protection Act, 1986. The Complainant sought possession of the office premises or alternatively, a refund with interest, compensation for inconvenience, and legal expenses.

3. Complaint was admitted, notices were issued to Opposite Parties, Opposite Parties filed their Written statement as follows :

a) Opposite Parties denied all the allegations and stated the complaint is false, frivolous, and not maintainable and the Complainant is not a consumer under the Consumer Protection Act, 1986, but an investor.

b) The Opposite Parties contended that delays in completion of project were due to factors beyond their control, and the reason of the same includes the disputes with the D. N. Nagar AshtavinayakCo- operativeHousingSocietyLtd.and restrictions from Civil Aviation Authorities.

c) The Opposite Parties claimed they kept the Complainant informed of these issues and denied receiving any cash payments or other amounts be