AI Structured Summary
Not yet generated for this judgment
Judgment
Justice A. P. Sahi, President
The two complainants who are Non-Resident Indians before us have come up claiming legal possession of Flat No. 12 (12th Floor), Area 1750 sq. ft. in a building described as ‘Skyper’ located at Pali Market Road, Pali Hill, Bandra (West), Mumbai or in the alternative to refund the entire amount of Rs.5,40,00,000/- together with 18% interest from the date of payment till actual realization of the amount coupled with compensation of Rs.30,00,000/- and an additional amount of Rs.10,00,000/- for mental harassment with a further claim of Rs.10,00,000/- as legal expenses and another sum of Rs.50,00,000/- towards foreign exchange loss incurred by the complainants as the payments were made in the year 2010 and 2011 respectively, when Indian currency was stronger and the payments had been remitted from the United Arab Emirates.
An offer of allotment was made vide letter dated 26.05.2010. The flat had been promised to be delivered within 1½ years (18 months) that is by October/ November 2011. The purchase of the flat as claimed by the complainants was for a total consideration of Rs.5,40,00,000/- that was paid by cheques and bank draft between 16.05.2010 to 05.10.2011 in full and complete satisfaction of the price agreed between the parties for which the complainants had also negotiated a home loan from the HSBC Bank.
The complainants further allege that, when the opposite parties dilly-dallied and failed to execute the agreement in spite of a considerable lapse of time, a legal notice was given to the opposite parties followed by a series of correspondence in 2016 but they failed to perform or proceed to offer delivery of the flat. Non execution of the agreement also amounted to violation of the Maharashtra Ownership Flat Act, 1963. The legal notice dated 11.01.2016 alleges that failure to procure and deliver occupancy certificate from the competent authority appeared to be because of unauthorised extra floors constructed by the opposite parties and when possession was demanded, the opposite parties had also extended threats to the complainants. The request to meet at a neutral venue was also spurned by the opposite parties nor was the amount paid refunded.
At the time of final arguments, learned counsel for the complainants mainly stressed on the basis of the averments in the pleadings to contend that since the complainants had paid Rs.5,40,00,000/-, the complainants would be satisfied if the same is refunded together with interest and other pecuniary reliefs be reasonably considered.
The complaint has been resisted on several grounds but primarily on a four pronged argument advanced by the learned counsel for the opposite parties.
The first contention is that there was nothing like a Builder Buyer Agreement between the parties and as a matter of fact no agreement was entered into at all. The claim has been set up on the strength of an offer of allotment dated 26.05.2010, which is neither an agreement nor is it an instrument to be construed as an offer to a consumer.
It is next contended that the complainants as a matter of fact had transacted monetary consideration as an offer that was initially an interest free loan and was preceded as well as succeeded by such transactions that were in the nature of investments. Hence the dispute is not a consumer dispute, rather the transactions are purely in the nature of investments, hence the consumer forum cannot try such a claim.
The third ground submitted by the learned counsel for the opposite parties is that the claim is highly time barred in as much as the payments are of the year 2010/2011, whereas the complaint has been filed in the year 2016 after a lapse of more than two years without any explanation on delay with no supporting cogent material to demonstrate as to how the cause continued till 2016 to enable the complainants to institute the complaint.
The last ground is the explanation disputing the consideration amount which according to the written statement and the argument advanced for the opposite parties is Rs.10,60,00,000/- and not Rs.5,40,00,000/- as alleged in the complaint. This contention has to be analyzsd keeping in view the document dated 04.03.2016 dealt with hereinafter.
At the outset, we may record that the case had been listed and the matter was last heard on 28.07.2023, when certain additional documents in the form of Exhibit A, B and C along with an additional affidavit of the complainants were taken on record subject to an opportunity to the opposite parties to file counter. The matter was listed on 08.08.2023 for final hearing. On that day again an adjournment was sought by the counsel for the opposite parties for filing reply, which was deferred and the arguments were directed to be proceeded with. Learned counsel for the complainant advanced his submissions and the matter was to come up on 09.08.2023, when a mention was made that the reply has been prepared and that the opposite parties may be permitted to file the same. Learned counsel for the opposite parties stated that the copy was not received by the learned counsel for the complainant and therefore it cannot be filed in the registry and hence should be accepted on record.
We found no good reason to keep this matter pending for filing of any such additional documents, which the learned counsel for the opposite parties alleges are documents pertaining to the property of the complainants and other documents to demonstrate that the complainants were in a fiduciary relationship with the opposite parties so as to advance their own business transactions and in effect the complainants were investors along with the opposite parties in reality. Hence the same is necessary for being considered keeping in view of the submissions raised. We were not inclined to accept any such plea in as much as we found that the matter had been adjourned on several occasions and the documents already on record as well as pleadings including some e-mails in relation thereto on behalf of the opposite parties have been sufficiently placed before us to appreciate the submission of the status of the complainants claimed to be investors instead of consumers. Yet in spite of our disinclination to allow any expansion of pleadings on this count, learned counsel for the opposite parties without taking leave of the bench ushered in a short compilation dated 10.08.2023, after orders on final judgment were reserved on 09.08.2023, before the office/ registry that was placed before the bench. In response to this, an affidavit of reply opposing and denying the contents thereof has been filed by the learned counsel for the complainant with leave on mention that was received also in the office on 25.08.2023. A perusal of the affidavit filed on behalf of the opposite parties virtually reiterates what had been argued by the learned counsel and in addition thereto it has been alleged that the complainants had also taken a sum of Rs.5,80,00,000/- from the opposite parties which they have not returned. For this another letter dated 07.03.2016 has been filed, which is said to be an advance loan of Rs.2,40,00,000/- with interest at the rate of 16 % per annum and some property papers are being kept as security. The property mentioned is three plots of land in Gujarat and a receipt of Rs.2,40,00,000/- having received in cash has also been filed. Another property document filed is regarding Flat No. A-13 & 14 in China Link Co-operative Housing Society Limited and then another receipt of Rs.2,40,00,000/- having been received in cash.
These documents are being relied on to convey investment deals between the parties. The said documents have been denied in the reply filed by the complainants taking strong objection to the filing of the said documents in the circumstances indicated above. Nonetheless as already observed the said documents have not link or connection or even a mention of the flat for which payments were made and refund is claimed by the complainants. In the absence of any such transactional connect, the allegations made through the affidavit dated 10.08.2023 filed by the opposite parties is of no avail and of no consequence in the present proceedings. The complainants therefore are and remain consumers in terms of the Consumer Protection Act, 1986 and the complaint is maintainable on the allegations of deficiency of service and unfair trade practice. Paragraph 13 of the judgment of the in the case of “Sanjay Rastogi Vs. M/s. BPTP Limited & Anr.” decided on 18.06.2020, highlights the legal position appropriately in favor of the complainants and as stated at the bar the said judgment has been upheld by the Apex Court. The same is extracted hereunder:
“13. OP has argued that the complainant is not a consumer and so cannot be a complainant under the Act. As to why he is not a consumer, the only reason advanced is a bland averment that he stays in Oman and is an investor. Beyond this, nothing of any substance or evidentiary value has been put forth to support this contention. This objection of the OP is therefore rejected for two reasons. One, the complainant has clarified in the very first para of his plaint that he is not buying the unit for any commercial purpose. It is for the OP to prove otherwise. Two, commercial purpose requires that the complainant be shown to be in the business of buying and selling flats. No attempt has been made to prove this. Merely buying a flat, even if it be with a view to sell at a later date, is not commercial purpose. After all, a person can buy a flat and sell it subsequently, for a whole variety of reasons. This by itself would not make him a non-consumer. Therefore, the objection of the OP is found completely baseless and is accordingly rejected.”
It would also be evident from our findings recorded hereinafter that the documents filed by the complainants, which were sought to be explained by the learned counsel for the opposite parties through additional documents may even otherwise not affect the real controversy or have a bearing on it.
The four arguments advanced as noted earlier on behalf of the opposite parties are in direct conflict with the claim of the complainants, which have to be dealt with simultaneously. To understand these arguments, the narration of facts as emerge from the pleadings of the parties, reflect that there is a letter of allotment dated 26.05.2010, which is undisputed between the parties. The said letter of allotment is reproduced hereunder:
“ Date: 26/05/2010.
To,
Mr. & Mrs. Balakrishnan,
A-14, Chinalink,
Link Road, Malad ( West),
Mumbai-400064.
Respected Sir,
Sub: Allotment of Flat No. 12 (full floor) on the 12 Floor (from ground level)
of the building known as “SKYPER” located at Pali Market Road, Pali
Hill, Bandra (West), Mumbai 400050.
You are hereby informed that we have allotted to you the above mentioned Flat admeasuring 1750 sq. ft. carpet area along with 2 car-parking spaces. The Agreement will be entered into Between us in due course of time.
Thanking you,
Yours truly,
For QURESHI BUILDERS I confirm
sd/- sd/-
(KHALID QURESHI) (BALAKRISHNAN)
Partner”
A perusal of the said letter of allotment leaves no room for doubt that it is an intimation of allotment of the flat in dispute with a further recital that the agreement will be entered into in due course of time. The letter does not indicate the schedule of payment nor does it prescribe the timeline with regard to the completion of construction or handing over of possession.
It is admitted between the parties that no written agreement was entered into but what appears from the document filed by the opposite parties along with their written statement is the reflection of a payment of Rs.5,40,00,000/- through cheques and demand draft spread over from 18.05.2010 to 01.10.2011. There is another claim by the opposite parties about a cheque dated 01.12.2010 for Rs.7,00,00,000/- issued by the complainants that was not encashed about which we have dealt with later in this order. This amount of payment against flat booking is clearly reflected from the certified statements issued by M/s. B.N. Dudani & Co., Chartered Accountants of the opposite parties. The two certificates dated 27.01.2017 that have been filed by the opposite parties themselves are appended as Annexures 2 and 8 to the written statement of the opposite parties which are reproduced hereunder:
Annexure 2
TO WHOMSOEVER IT MAY CONCERN
This is to certify that M/s Qureshi Builders is a partnership firm running business of building construction and is operating from 1 Marble Palace, Behind Palli Market, BANDRA (W) MUMBAI-400050.
M/s Qureshi Builder has received Rs. 3,60,00,000 /- as under from Bala Krishana Subramainam against flat booking in their Skyper Project at Bandra (West)
18.05.2010 Rs. 1,00,00,000 /- vide Chq No 044728
29.05.2010 Rs. 1,00,00,000 /- vide Chq No 044729
25.01.2011 Rs. 1,60,00,000 /- vide Chq No 044710
They have paid Service tax on 29.4.13 Rs. 583020 /-
Thanking You
Yours faithfully,
For B.N. Dudani & Co.
Chartered Accountants
B.N. Dudani
( Proprietor )
Place: Mumbai
Date : 27.01.2017
Annexure 8
TO WHOMSOEVER IT MAY CONCERN
This is to certify that M/s Qureshi Builders is a partnership firm running business of building construction and is operating from 1 Marble Palace, Behind Palli Market, BANDRA (W) MUMBAI-400050.
M/s Qureshi Builder has received Rs. 1,80,00,000 /- from Meeta Mukherjee vide Chq No. dated 01.10.2011
Thanking You
Yours faithfully,
For B.N. Dudani & Co.
Chartered Accountants
B.N. Dudani
( Proprietor )
Place: Mumbai
Date : 27.01.2017
The first certificate which indicates payments through cheques of Rs.3,60,00,000/- clearly recites that the same was against flat booking in the Skyper project at Bandra. The second certificate in a very peculiar way describes that the receipt of Rs.1,80,00,000/- was from one Meeta Mukherjee through a cheque number whereof is not mentioned in the said certificate. We are mentioning this fact as a large capital was sought to be made out on the strength of the said recital by learned counsel for the opposite parties to contend that this payment was not in relation towards flat booking nor was it actually tendered as part of the transaction. In essence the effort was to persuade us to believe as if no payment had been made by the complainants to the tune of Rs.1,80,00,000/- as per the 2nd certificate quoted above. This was in order to substantiate the other arguments raised on behalf of the opposite parties that the payments were not part of the flat booking transaction and rather the said payment was not correlated to the consideration money for the flat, and was a sort of investment. Learned counsel for the opposite parties in essence advanced his submission contending with the aid of other documents that it was a commercial investment collaboration between the complainants and the opposite parties, which got converted into a facilitation of offering of a flat that was never intended to be utilized as a residence by the complainants and was rather in the nature of prospective investments.
To locate and fix the correctness about this transaction of Rs.1,80,00,000/-, we have carefully perused the xerox copy of the bank draft dated 05.10.2021 that has been brought on record and which demonstrates that it has been issued by the HSBC Bank and the signature just besides that of the authorized signatory is that of one Meeta Mukherjee. With the help of the bank statement and certificate of the chartered accountant referred to above, learned counsel for the opposite parties vehemently pressed his arguments urging that the bank account statement reflects receipt of Rs.1,80,00,000/- from Meeta Mukherjee and not from the complainants. We have examined the averments of both the sides as well as the documents, including the bank account statement and what transpires is that the bank draft directly tallies with the date of the receipt of Rs.1,80,00,000/- into the account of the opposite parties but while the endorsement was being made in the computer system, there appears to be an incorrect endorsement in the bank account statement reciting the name of Meeta Mukherjee, who is only a signatory of the bank, issuing the bank draft. On a categorical query from the Bench to the learned counsel for the opposite parties as to whether there was any financial relationship or transaction of the opposite parties with Meeta Mukherjee, learned counsel neither from the averments nor from his arguments or the documents could establish or even remotely demonstrate that the payment of Rs.1,80,00,000/- was made by Meeta Mukherjee and not by the complainants. The opposite parties are thus clearly attempting to take undue advantage of the incorrect entry endorsed in the bank account statement and it is for this reason that the certificate issued by the chartered accountant in respect of this payment discreetly skips the mention of the cheque number, which in fact is a demand draft of Rs.1,80,00,000/-. The charted accountant in his certification simply copies the entry from the statement of the bank account of the receipt of the money from Meeta Mukherjee. In our considered opinion the chartered accountant has clearly made an apparently misleading recital without verifying the correctness of the entry of that amount into the account of the opposite parties that was deposited as against the legal tender of the demand draft that was a payment made by the complainants to the tune of Rs.1,80,00,000/-. The said certification therefore does establish the payment of Rs.1,80,00,000/- by the complainants but it incorrectly describes the payment through a cheque from Meeta Mukherjee. As already indicated above, the opposite parties through their counsel and their pleadings have not been able to demonstrate any actual payment from Meeta Mukherjee or any such transactional relationship with her. Even otherwise a Bank Draft is signed by the signatory of the bank and not by the depositor or customer It is therefore established beyond doubt that the opposite parties were trying to take an unfair advantage of such incorrect endorsement in the bank account statement produced by them and repeated by the chartered accountant regarding the payment from Meeta Mukherjee. Complainants have also brought on record the bank account statement that they have received, indicating the deposit and receipt by the opposite parties in respect of this entire amount of Rs.3,60,00,000/- + Rs.1,80,00,000/- =Rs.5,40,00,000/-.
It is also to be noted that the first payment of Rs.1,00,00,000/- was received by cheque by the opposite parties which is dated 16.05.2010 that is stated to have been received on 17.05.2010 by the opposite parties. This is prior to the issuance of the letter of allotment which appears to be a preallotment payment. The letter of allotment was issued on 26.05.2010 and the subsequent cheques of Rs.1,00,00,000/- and Rs.1,60,00,000/- were issued on 26.05.2010 and 25.01.2011. The demand draft of Rs.1,80,00,000/- is dated 05.10.2011. To consolidate this reference, the following chart can be perused:
1.
Cheque No. 044728 dated 16.05.2010
Rs. 1,00,00,000
2.
Cheque No. 044729 dated 26.05.2010
Rs. 1,00,00,000
3.
Cheque No. 044710 dated 25.01.2011
Rs. 1,60,00,000
4.
Payment made by Demand draft dated 05.10.2011
Rs. 1,80,00,000
TOTAL
Rs. 5,40,00,000 /-
This chart directly matches with the receipt of payment by the opposite parties as indicated above with the certificate of the chartered accountant relied on by the opposite parties. Learned counsel for the complainants has been consistent in his arguments that this is the only total consideration amount that was passed on in lieu of the booking of the flat and in spite of this the opposite parties did not execute the agreement nor did they demonstrate any actual construction being raised or intention to offer the flat for possession to the complainants.
To counter the above learned counsel for the opposite parties time and again pressed his argument to urge that as a matter of fact there are ample documents to demonstrate that the complainants had other business transactions with the opposite parties and it is in respect of those investments that this allotment of a flat emerged as one of the incidents of the investment transactions with the complainants. Relying on judgements that such a transaction should be construed as an investor transaction and not that of a consumer to buy a flat; it was vehemently argued that the opposite parties are in possession of the original allotment letter which had been returned and there are other property documents in the possession of the answering opposite parties given by the complainants themselves, which the opposite parties have brought on record through additional papers to establish an investor and developer relationship. We have already indicated above that we had declined any such attempt to further prolong the matter and which in the given circumstances is unbelievable, given the background that the recital of flat allotment is clearly contained in the letter of allotment as well as the first certificate of the chartered accountant indicating payment of Rs.3,60,00,000/-. However, since a short reply dated 10.08.2023, after the judgment was reserved on 09.08.2023, and a response thereto has been filed by the complainants’ counsel objecting to the above on 25.08.2023, we find that the allegations by the opposite parties are that some money to the tune of Rs.4,80,00,000/- was transacted in lieu whereof the complainants deposited the same title documents. The complainants in their reply dated 25.08.2023 have denied the same. On a close perusal, there is no evidence documentary, digital or otherwise to substantiate disbursal or receipt or exchange of any kind as alleged by the opposite parties for investment in the project of the opposite parties.
Learned counsel for the opposite parties again reiterated his arguments on this issue and with the help of a reply which was filed earlier on 30.06.2023 which is on record, certain email transactions and two receipts of interest free friendly loan have been relied on. This again is a very interesting material to be analyzed and discussed to appreciate the argument of investor developer relationship. The emails which have been filed on record do not in any way reflect any connection with the transaction of the flat as part of the allegation of investor developer relationship. The said emails are said to have emanated from the United Arab Emirates and travelled to Lybia which may be some other business transaction but it in no way reflects upon the negotiations about the purchase of flat by the complainants as part of any prospective investment of any project. These two receipts which are dated 17.05.2010 and 26.05.2010, respectively, purport to the payments of Rs.1,00,00,000/- each through cheques dated 16.05.2010 and 26.05.2010 bearing cheque no. 044728 and 044729 as indicated in the chart above. These two receipts contain a recital of the same cheques having been received as interest free friendly loan. As against this, and recorded hereinabove, the first certification by the chartered accountant of the opposite parties refers to the very same cheques with the same numbers as having been received by the opposite parties against flat booking in there Skyper project. The opposite parties therefore have filed documents contradicting their own pleadings. The receipts as well as the certificates from the chartered accountant both emanate from the custody of the opposite parties and form part of their affidavit before this Commission. The complainants have clearly denied having been issued any of the two receipts. Consequently, what emerges from this is, that it is accepted by the opposite parties undeniably through the certification of their chartered accountant as well as the endorsement in the bank accounts that a sum of Rs.3,60,00,000/- including these two cheques of Rs.1,00,00,000/- each were consideration for booking of the flat in question. Thus, the receipts which have been produced by the opposite parties clearly contain an incorrect recital of two cheques being advanced as interest free friendly loan. This apparent manipulation to deny their own admission by the opposite parties is therefore writ large on the face of it and the defense put forward on behalf of the opposite parties is not only doubtful but absolutely unreliable to believe that two cheques were tendered for interest free friendly loan. To the contrary it appears that the opposite parties have also attempted to manipulate documents to suit their own purposes.
Learned counsel for the opposite parties added another submission to carry further his argument that a cheque of Rs.7,00,00,000/- was tendered on 01.12.2010 by the complainants to the opposite parties. It is undisputed that this cheque was neither encashed nor any such consideration passed on to the opposite parties. The filling up of the cheque which the learned counsel for the opposite parties submits is of the same serial number in continuance of the earlier cheques issued by the complainants has not been denied but the fact remains that the said cheque never got converted into any transaction of consideration or payment for the flat. The complainants’ counsel contends that this cheque had been tendered soon after the letter of allotment for showing the credibility of the complainants before financial institutions in order to secure a loan. In our opinion the fact remains that even assuming for the sake of argument that the cheque was intended to be an offer of payment, but the same was never transacted nor any consideration passed on to the opposite parties through the said cheque. The same cannot in any way establish an intention of investment or even actual consideration for the flat in question and therefore cannot in anyway dilute the impact of the actual financial transactions for the flat that have already been established on record.
Learned counsel for the opposite parties has then advanced his submission on the strength of a document dated 04.03.2016 which is stated to be an alleged settlement after the complainants had started sending legal notices with effect from 27.01.2016. It is urged by the opposite parties that the said document which is Annexure R-3 is the final settlement of all moneys which is endorsed on the letter head of a company run by the son of the complainants Mr. Amit B. Iyer. The letterhead is of Iyer International LLC stated to be situate in Dubai and this letterhead bears the signature of the complainant no. 1 and witnessed by her son who is running the said company.
The contents of the said letter are very peculiar. The reference mentions the allotment letter of the flat dated 26.05.2010 and the subject matter of the letter states that this document is declaring the allotment as cancelled with request to refund the payments received.
Further contents of the document are very revealing. The document is said to have been issued by the complainant no.1 and signed by her wherein it recites that the allotment of flat no. 12 in Skyper building had been made for which the consideration amount settled was Rs.9,00,00,000/- out of which a sum of Rs.7,40,00,000/- had been paid by the complainants. It further recites that since the complainants were unable to arrange the balance consideration of Rs.1,60,00,000/-, therefore they are asking for refund. Very strangely in the next sentence the letter also acknowledges receipt of Rs.3,00,00,000/- which is stated by the learned counsel for the opposite parties that it was in cash. The letter also recites that the balance of Rs.4,40,00,000/- can be returned at the convenience of the opposite parties and that the opposite parties are at liberty to sell the flat and create any third party right for which they give unconditional consent. In effect the opposite parties were finally discharged of all liability with a hope that the balance that was due will be paid at their convenience.
This document dated 04.03.2016 is another mystery. At the outset, it confirms the transaction of the same flat and it nowhere claims to be a refund as against some interest free friendly loan or an investment by the complainants. Learned counsel for the complainants questioned the correctness of this document by denying the signatures of the son of the complainants stated to have been endorsed on it. However for our purposes no further material has been placed on record so as to accept or otherwise dispute the genuineness of the document and the signature of the complainant no. 1 on the document as we are not handwriting experts, but the contents of the document and its mystery deserves to be analyzed as it reflects another step into this dark transaction. On the one hand this document is being relied on by the opposite parties to contend that the complainants were involved in other business transactions, which also hinted at the involvement of the son of the complainants, but from a perusal of the entire contents it in no way reflects any investments except the payments as consideration for allotment of the flat in question. The document also indicates that the complainants intended to cancel the allotment and seek refund with regard to which certain more recitals were made and about Rs.3,00,00,000/- having been returned to the complainants in cash. The complainants have clearly denied in their affidavit of having received any such amount under the terms of the said document. They have categorically contended in their affidavit that no such payments were either received by them in cash nor was it tendered to them through any bank account or any digital method. They have indicated that there is no evidence at all of the transaction of Rs.3,00,00,000/- having been received back by them in cash as refund. There is no evidence whatsoever till date also of the balance of Rs.4,40,00,000/- being paid over to the complainants. To substantiate their contention about the incorrectness of this document learned counsel for the complainants submits that it is throughout their consistent case, that the consideration amount was Rs.5,40,00,00,000/-, whereas in the instant document the consideration amount has been mentioned as 9,00,00,000/- and from the pleadings of the opposite parties the said amount is Rs.10,60,00,000/-. He therefore submits that as against the consistent stand of the complainants, the opposite parties have been mentioning through manipulated documents the consideration amount differently at different places, including this letter dated 04.03.2016. He submits that the figure of the total consideration amount of Rs.9,00,00,000/- is therefore against the own pleadings of the opposite parties and cannot be believed in any way as neither is there any document to support the same nor any evidence to substantiate it.
In our opinion this contention of the learned counsel for the complainants appears to be correct and the contents of the document dated 04.03.2016, even if there is a doubt about the signatures thereon, cannot be believed to contain a genuine or correct recital of the amounts referred to therein. Apart from this, according to this document as well there is an outstanding refund amount of Rs.4,40,00,000/-, which has not been paid to the complainants nor has the learned counsel for the opposite party been able to establish any such refund of Rs.4,40,00,000/- out of Rs.7,40,00,000/- alleged to have been advanced by the complainants. The contents of this document on its own structure coupled with the stand taken by the opposite parties in their affidavit establishes that the contents of the alleged payments are untrue and appear to be a manipulation. Even assuming if they are correct though not accepting, even then it is the admitted position of the opposite parties under the document that a sum of Rs.4,40,00,000/- is outstanding for refund.
Thus the entire gamut of facts discussed above clearly lead to only one logical and rational conclusion that money was clearly transacted for a flat, the transaction as claimed by the complainants are established by documents, the denials and defense of the opposite parties are unestablished so as to dislodge the claim and also seem to be manipulated with no cogent believable material to support them and for all intents and purposes have failed to confirm the allegations of an investor-builder relationship. To further confirm the payment by the complainants, the letter dated 12.12.2022 from the Bank, explaining the status of the bank account and the withdrawals thereof indicates the payment made by the complainants which matches with the payment that have been received by the opposite parties in lieu of the purchase price of the flat. Secondly the photostat copy of the demand draft has also been brought on record and then the statement of accounts of the saving bank account of the complainants indicates and matches the withdrawal dated 08.10.2011 in favour of Qureshi Builders. These documents have been filed in the additional affidavit accompanying IA/3655/2023 dated 20.03.2023. Thus the amount as claimed by the complainants to be paid to the opposite parties in lieu of the price of the flat is established.
The calculation made by the opposite parties said to be reflected in the document dated 04.03.2016 is by erroneously reflecting the same as Rs.9,00,00,000/-, which appears to have been calculated after adding the sum of Rs.7,00,00,000/- through the cheque dated 01.12.2010 which was never encashed. The Written Statement/ reply of the opposite parties at page 2 indicates admitted having received only three amounts and also admits that the cheque of Rs.7,00,00,000/-was never encashed. This amount of Rs.7,00,00,000/- is not shown even in either of the certificates issued by the chartered accountants. There is one more fact that the recital in the letter dated 04.03.2016 of returning the balance amount of Rs.3,00,00,000/- does not arise if the sum of Rs.7,00,00,000/- was never encashed. There cannot be an agreement to refund the amount which was never paid in the transactions relating to the flat. Thus the entire story knitted by the opposite party has no credibility and deserves rejection.
The third issue is with regard to the plea of limitation taken by the opposite parties to contend that the complaint could not be entertained as it was barred by time. To understand this we have narrated the facts and arrived at the conclusion in the manner indicated above only for this purpose to compute the period for treating the complaint to be within time or otherwise. It is evident that the complainants waited for a fairly reasonable time with regard to the completion of the transaction. In the absence of the occupancy certificate having been issued or any further steps having been taken by the opposite parties, there was continuing cause of action, which stands reflected in the notice for seeking refund of the amount by the complainants, the response given and more particularly the reply given by the opposite parties in response to the legal notice that they are businessmen and are still prepared to settle the dispute. Not only this the cause of action was continuing till the opposite parties themselves came up with the controversial document dated 04.03.2016. This document on the own saying of the opposite parties indicates, that till March, 2016, they alleged that negotiations were on and according to them it was settled on 04.03.2016. According to the complainants, it was the refusal of the opposite parties to refund the payment in March 2016 that led to the filing of this complaint which is well within time. The entire narration of facts hereinabove therefore leaves no room for doubt that the complainants had a continuing cause of action and the complaint was filed well within time. The same therefore cannot be rejected on the ground of any bar of limitation.
Coming to the claim of refund based on deficiency in service and unfair trade practice on the part of the opposite parties, till date there is no occupancy certificate provided nor the letter of possession issued to the complainants. Learned counsel for the complainants has urged that it appears that four floors of the building were allegedly constructed without any lawful sanction and it may be for this reason that the occupancy certificate could not be obtained by the opposite parties to offer possession. In the given circumstances the claim for refund of the complainants deserves to be allowed.
Having analyzed the nature of the payment and the transactions it can be safely concluded that the opposite parties have in fact received a sum of Rs.5,40,00,000/- as against the booking of the flat by the complainants. The opposite parties having failed to render the services or offer the flat for possession are clearly liable to refund the entire amount together with interest and compensation.
Accordingly we allow the complaint and direct the opposite parties to refund the sum of Rs.5,40,00,000/- together with interest at the rate of 9% per annum from the respective dates of deposit till its realization, within a period of one month from today. In the event of failure of refund, the interest rate shall stands enhanced to 12% per annum. In addition thereto we award compensation to the tune of Rs.5,00,000/- on account of the mental harassment caused to the complainants and Rs.2,00,000/- as costs of litigation.