Jyoti Kumar Tiwari vs Anuman Developers & Ors

The present Complaint is filed under Section 21(a)(1) of the Consumer Protection Act, 1986.

Case of the Complainant is that on 29.11.2001 the Complainant and Opposite Party Nos. 1 and 2 entered into agreement for sale of Flat No.VSH/B-102, 1st Floor in the building Vaastu Shubh, Shree Vastu Enclave, behind Manish Park, Rajmata Jijabai Road Pump House, Andheri (East), Mumbai-400093. The price of the flat was Rs.18,83,400/-, inclusive of the State duty payable. Possession of the flat was to be handed over by March, 2002. The Complainant paid Rs.1,75,000/- in cash towards stamp duty and other expenses on 13.11.2001, but no receipt was issued for this amount. The Complainant made further payment of Rs.4,33,400/-. Rs.3,33,400/-, vide Cheque No.00173963 drawn on SBI, Andheri and Rs.1,00,000/-, vide Cheque No.383860 drawn on ICICI Bank, Andheri, both dated 21.11.2001. The Complainant was made to sign another for sale and the Complainant was assured that all matters relating to stamp duty/payment/franking etc. shall be taken care of and he shall be informed of registration of the flat. On 04.12.2001, the Complainant was asked to reach the office of Sub Registrar for registration of the flat. The registration, however, could not be done on that date. On 06.12.2001, Opposite Parties Nos.1 & 2 informed that Complainant that the original documents were submitted to the Sub-Registrar's Office where they got missed and an FIR to that effect was lodged on 05.12.2001 at Mata Ramabai Ambedkar Police Station, Mumbai-400001 and a letter dated 06.12.2001 was also given to the Superintendent of Stamps narrating the incident.

The Complainant sent letters 12.12.2001, 17.12.2001 and 27.12.2001 to Opposite Parties Nos.1 & 2 pointing out the defects in the flooring and requested them to remove the defects. The Complainant, vide letter dated 17.12.2001, requested Opposite Parties Nos.1 & 2 for early completion of paperwork and registration of agreement. On 11.01.2002, the Complainant, met Opposite Party No.2 and again requested to adhere to their commitment regarding marble finish of the flooring, whereupon Opposite Party No.2 adopted a threatening attitude. On 15.01.2002, the Complainant sent a summary of the events stating deficiency in service and unfair trade practices to Opposite Parties No.1 and 2 and requested them to register the agreement for sale.  Opposite Party No. 1 and 2, vide their reply dated 24.01.2002 denied the allegations of the Complainant and asked him to deposit balance amount of Rs.14 lakhs within 15 days, failing which the agreement would stand cancelled. The Complainant contacted Opposite Party No. 2 requesting to proceed with the registration of the property so that he could obtain house loan from the Bank. The Opposite Parties pressurised the Complainant to withdraw his letters dated 12.12.2001, 17.12.2001, 27.12.2001, 15.01.2002, and 30.01.2002 and accept the flat with tile finish before registration. The Complainant was also made to sign a letter drafted by the Opposite Parties Nos.1 and 2, wherein it was written by them that the flat in question was ready. The Complainant signed the letter after striking off the incorrect words therefrom. Thereafter, another draft was prepared by Opposite Parties Nos.1 & 2 without the struck off portion of the earlier draft and the Complainant was made to sign this letter as well.

The registration of the agreement was done on 14.03.2002. Opposite Parties Nos. 1 & 2 submitted the original documents with the HDFC Bank, instead of delivering the same to the Complainant. The Complainant approached HDFC Bank and obtained a copy of the registration documents. In the said documents, the Complainant found major inconsistencies in the description of the flat. As per the agreement, the flat was situated in ‘B’ wing of Vaastu Shubh, however, in the Occupancy Certificate dated 19.03.2002, the flat was situated in ‘A’ wing and not wing B. The Complainant contacted Opposite Parties Nos. 1 & 2 who, vide letter dated 22.03.2002, informed him that ‘B’ Wing was completed and the work of ‘A’ Wing had not started. The Complainant sent letter dated 22.03.2002 to Opposite Party Nos. 1 and 2 requesting for supply title report of the property. In reply to his letter, Opposite Parties Nos.1 & 2 sent letter dated 17.04.2002 intimating that the agreement had been cancelled and a cheque of Rs.4,46,230/- was also sent to the Complainant. The Complainant sent legal notice dated 18.05.2002 and returned the cheque alongwith the legal notice. Opposite Parties Nos.1 & 2 responded to the legal notice, vide letter dated 05.06.2002, wherein they avoided to address the crucial issues of illegalities committed by them.  Alleging deficiency in service on the part of the Opposite Parties, the Complainant filed the present Complaint with following prayer:

“a. direct the Respondents to provide a flat of similar area in the same locality at the agreed rate after adjustment of the amount already paid by the petitioner as well as after adjustment in accordance with the area of the flat to be provided.

b. direct the Respondents to pay reasonable compensation for the losses including compensation for mental torture, humiliations and other related sufferings which may be adjusted to the sum ordered to be payable by the petitioner.

c. pass such order or orders as deemed fit in the circumstances of the case.”

Opposite Party No. 1 and 2 contested the Complaint by filing written statement. It was stated that the value of the flat was much below the pecuniary jurisdiction of this Commission. The National Commission, therefore, had no pecuniary jurisdiction to entertain the Complaint. It was also stated that the present matter involves complicated issues which can be resolved only by a Civil Court. The Consumer Complaint before this Commission is, therefore, not maintainable.

On merits, it was stated that the Complainant had no right to amend the Complaint and take a new plea in the garb of consequential amendment. It was submitted that as the Complainant failed to make timely payment and take possession of the flat, the Opposite Parties were compelled to sell the flat. Moreover, the Opposite Parties stated that after making part payment of a sum of Rs.4,33,400/-, the Complainant started making demands for additions and alterations in the built up flat which were not part of the agreement. The Complainant asked for replacing the existing marbo-granite ceramic tiles in the flat with marble flooring. It was also denied that the Complainant was called to sign the draft letter and withdraw his letters dated 12.12.2001, 17.12.2001, 27.12.2001, 15.01.2002 and 30.01.2002. The allegations against the Opposite Parties are false and the Complaint deserves to be dismissed.

Heard the Complainant in Person and Learned Counsel for the Opposite Parties Nos.1 to 4 and carefully perused the record. Complainant submitted that Opposite Parties Nos.1 and 2 agreed to sell non-existent Flat No. B-102, Vastu Shub- Wing B to the Complainant, for which an agreement for Sale was executed. Opposite Parties were to provide a copy of the agreement to the Complainant but they submitted the same directly to the HDFC Bank. Opposite Parties Nos.1 & 2 and threatened to cancel the booking, vide letter dated 24.01.2002, instead of removing the deficiencies pointed out by the Complainant. On 08.02.2002, Opposite Parties Nos. 1 & 2 obtained a letter from the Complainant under duress to withdraw all correspondence up to 30.01.2002. The Registration was done on 14.03.2002 and Rs.25,000/- was paid to the Attorney of the Opposite Party, thereafter he collected all the documents and filed the same with the HDFC bank for loan, as required by HDFC Bank. Opposite Parties Nos.1 & 2 cancelled the registered agreement without mandatory notice as provided in the agreement, vide letter dated 17.04.2002. He further submitted that on 06.12.2001, Opposite Parties Nos.1 & 2 informed him that the original documents got misplaced by the Sub-Registrar’s Office and an FIR to that effect was lodged on 05.12.2001 at Mata Ramabai Ambedkar Police Station, Mumbai-400001. The alleged loss of the agreement had been deliberately concealed from the Complainant till 06.12.2011.

Learned Counsel for Opposite Parties Nos.1 to 4 submitted that the Complaint was not maintainable before this Commission on ground of pecuniary jurisdiction. The Complaint required adjudication by the Civil Court due to voluminous documents, pleadings, applications, elaborate evidence and allegations of cheating and fraud. It was further submitted that the transaction between the parties was commercial in nature as the Complainant owned various properties in Lucknow and Bangalore. The Complainant had filed six Consumer Complaints on the same cause of action without seeking permission from this Commission. The Complainant had also impleaded unnecessary parties without seeking any relief against them.

It was admitted that the Complainant booked a flat with Opposite Parties Nos.1 & 2. It was also admitted that price of the flat was negotiated at Rs.18,83,400/-, including stamp duty. Payment of Rs.4,33,400/- by the Complainant, vide two cheques, was also admitted. The main issue between the Parties is that Opposite Parties Nos.1 & 2 failed to provide marble finish of the flooring. It is also disputed by Opposite Parties Nos.1 & 2 that they submitted the original documents with HDFC Bank, without intimation to the Complainant. It is also disputed that Opposite Parties Nos.1 & 2 pressurized the Complainant to withdraw his letters dated 12.12.2001, 17.12.2001, 27.12.2001, 15.01.2002 and 30.01.2002. Opposite Parties Nos.1 & 2 also disputed that they cancelled the agreement without prior notice to the Complainant.

As far as maintainability of the Complaint on pecuniary jurisdiction is concerned, this Commission vide order dated 11.04.2005, held that the Complaint was maintainable. Another objection of the Opposite Parties is that the Complaint involves complicated facts which cannot be adjudicated in a summary proceeding under Consumer Protection Act, 1986.  From the facts of the case, we find that no complicated question of fact and law is involved in this case and this Commission is fully competent to decide the Consumer Complaint.

The Opposite Parties also took the objection that the Complainant was not a ‘Consumer’ as he purchased the property for commercial purpose. No evidence whatsoever has been adduced by the Opposite Parties to show that the Complainant was engaged in the business of purchasing and selling houses and/or flats on a regular basis, solely with a view to make profit by their sale. The contention that the Complainant was not a Consumer, therefore, is rejected.

The Complainant stated that he booked a flat in ‘B’ Wing and as per agreement registered on 14.03.2002 and Opposite Parties Nos.1 & 2 changed the flat from ‘B’ Wing to ‘A’ Wing. Opposite Parties Nos.1 & 2 stated that a mistake occurred in printing of the brochures, which was brought to the notice of the Complainant, vide letter dated 22.03.2002. 40 other agreements with other flat purchasers were executed in the same building and the same printing mistake had occurred. The Complainant was also informed that the Opposite Parties were taking steps to rectify the mistake. The Occupancy Certificate, however, was received for ‘A’ Wing. Letter dated 22.03.2002 is placed on record by the Opposite Parties. The Complainant had not challenged this letter. The objection of the Complainant is, therefore, rejected.

Second allegation of the Complainant is with respect to the flooring the flat. The Complainant had not produced any evidence to show that the Opposite Party offered to provide marble flooring. The brochure of the project mentioned that the flats in the building would be provided with ‘marble/marbo-granite floor’. There was, thus, no deficiency in service by the Opposite Parties with respect to the flooring. The Complainant himself, vide letter dated 08.02.2002 withdrew the allegations regarding defects in the flat and also withdrew his demand for replacement of marbo-granite ceramic tiles by marble floor tiles. The Complainant had not produced any evidence that the letter dated 08.02.2002 was given by him under coercion. It is, therefore, clear that there was no deficiency as alleged by the Complainant on part of the Opposite Party regarding flooring of the flat.

On perusal of record, it is seen that the Opposite Party time and again asked the Complainant to make balance payment of Rs.14,00,000/-. The Complainant, however, on one pretext or the other refused to make the payment. The Opposite Parties sent notice dated 24.01.2002 to the Complainant to make payment of the balance amount of Rs.14 lakhs within 15 days, failing which the agreement would stand cancelled.

It was also contended by the Complainant that Opposite Parties Nos.1 & 2 submitted the original agreement directly to the HDFC Bank instead of delivering the same to the Complainant. The Opposite Parties Nos.1 & 2 took the stand that the agreement alongwith ‘No objection’ as well as Occupation Certificate was sent to HDFC Bank on 19.03.2002 to speed up his housing loan.

From the aforesaid discussion, we find that as the Complainant failed to make payments in time in spite of cancellation notice dated 24.01.2002, Opposite Parties Nos. 1 & 2 were compelled to cancel the agreement for sale of flat. There was, thus, no deficiency in service on the part of Opposite Parties Nos.1 & 2. After cancellation of agreement, the Complainant is not entitled for possession of the flat.

As the Complainant had deposited an amount of Rs.4,33,400/- with Opposite Party No.1, it be refunded to the Complainant. The Complaint is disposed of in above terms.