M/S. A.M. Associates vs Sau Ujwalla Chandrakant Gaikwad & 2 Ors.

M. Shreesha, Member

Aggrieved by the order in Appeal No. A/16/335 dated 04.09.2017 passed by Maharashtra State Consumer Disputes Redressal Commission (for short "the State Commission") First Opposite Party M/s A.M. Associates (hereinafter referred to as "the Developer") has preferred this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"). By the impugned order, the State Commission has party allowed the Appeal preferred by the Developer by way of reducing the awarded rate of interest from 18% p.a. to 12% p.a. However, the rest of the order, passed by the Thane Additional District Consumer Redressal Forum (for short "the District Forum"), was maintained by the State Commission.

Briefly stated, the facts of the case are that the Developer, a proprietorship concern, is engaged in the business of construction. Complainant No. 1 is housewife whereas Complainant No. 2 is a retired Government servant. After retirement of Complainant No. 2 both the Complainants intended to purchase a shop for carrying on their livelihood. They approached property consultants Mr. Hilal A. Shiddhiki and Mr. Abdul Chacha. The said property consultants had shown them two shops bearing No. 3 and 4 situated at Sector-11, Taloja-Panchanand, Opp. Proposed Railway Station. The Developer agreed to sell shop No. 4 to the Complainants, assuring them that the Developer was the owner of the said shop. Hence, the Complainant agreed to purchase shop No. 4. On 31.07.2012, they paid in cash a sum of Rs. 7,00,000/- and receipt No. 184 was issued. Subsequently, on 03.08.2012 a sum of Rs. 6,75,000/- i.e. a sum of Rs. 4,00,000/- by cheque and a sum of Rs. 2,75,000/- in cash, for which the Developer issued receipt No. 395. Thus in total the Complainants paid a sum of Rs. 13,75,000/- subsequent to which, they were called to the office of Mr. Tendulkar, Advocate for the purpose of registration of the Agreement. When they visited the office of the said Advocate, they were told that shop No. 4 had already been sold. They again visited the office of the Developer which informed them that a mistake has occurred in respect of the number of shop and requested them to take shop No. 2 having the same area. Believing the version of the Developer, the Complainants agreed to purchase shop No. 2 instead of shop No. 4. They paid the stamp duty and registration charges to Mr. Tendulkar, Advocate who assured them that the Agreement of Sale would be registered very soon before the Sub-Registrar, Panvel.

On 16.10.2012, after about two months one Mr. Vilas Jadhav, an employee of the Developer called him to the registration office at Panvel for execution of the Agreement. At the Registration Office, the said employee asked the Complainants to sign the Agreement of Sale. When the Complainants asked him some time to read the contents of the said Agreement, they were told that there was a great rush at the Registration Office and if they took time for reading then their registration would be missed and that they should sign the same. Perused, the Complainants signed the same without verifying the contents of the said Agreement. The Second Opposite Party also signed on the said Agreement as Seller. When the Complainants questioned the Second Opposite Party in which capacity he was signing the Agreement, he informed them that he was an investor of the Developer. Mr. Vikas Jadav told them not to worry about the transaction. Thus Agreement for Sale was executed bearing Document No. 507 of 2012. The Complainant got the copy of the Agreement for Sale after 4/5 days which reflected that the transaction was with respect to Shop No. 4 at Flowers Apartment, Plot No. 109, Sector-14, Taloja-Panchnand, Navi Mumbai and not with respect to agreed Shop No. 2 at Sector-11, Taloja-Panchanand, Navi Mumbai. The consideration amount was shown only as Rs. 4,00,000/-. Thereafter the Complainants approached the Developer for refund of the balance amount of Rs. 9,75,000/- and possession of the sold shop but the Developer avoided the same. They sent a legal notice dated 28.08.2013 but there was no response. The Complainants then lodged an FIR with the Police who tried to settle the matter but as the Complainants' son died due to shock on account of the cheating of the Developer, they refused to settle the matter.

Aggrieved the Complainants filed a Complaint before the District Forum seeking the following reliefs:-

a) To hold and declare the Opposite Party, guilty of deficiency in service, unfair trade practice and restrictive trade practice as per the provisions of the Consumer Protection Act, 1986.

b) To direct/order/decree to the Opposite Parties to hand over the legal possession of Shop No. 2, situated at:- Ground Floor, admeasuring area about 12.20 sq. mtrs. in the building known as "Flowers Apartment", Plot No. 109, Sector-14, Taloja-Panchnand, Navi Mumbai.

c) To direct/order/decree to the Opposite Party No. 1 to refund excess amount of Rs. 9,75,000/-(Rupees Nine Lakh Seventy Five Thousand only) to the Complainants with 18% interest from the receipt of the amount.

d) To direct/order/decree to the Opposite Party to pay amount of Rs. 3,00,000/- (Rupees Three Lakh only) towards the liquefied damages, mental agony & harassment to the Complainant.

e) To direct/order/decree to the Opposite Party to pay sum of Rs. 25,000/- towards the cost of litigation.

f) For such further and other reliefs as this Hon'ble Forum may deem fit, proper and expedient in the circumstances of the case."

The District Forum issued notice to the Developer and the Second Opposite party and directed them to file their Written Statements. However, they did not appear before the District Forum despite service of notice on them and hence they were proceeded ex-parte.

District Forum allowed the Complaint and granted the following reliefs:-

"1) Consumer complaint No. 55/2015 is hereby allowed.

2) This Forum declares that, the respondent No. 1 and 2 has provided defective service and unfair trade practice and it is directed to stop the unfair trade practice. (sic)

3) It is hereby directed to the respondent No. 1 that, repay the excess amount of Rs. 9,75,000/- obtained from the Complainants with 18% p.a. interest thereon from 31/07/2012 till its realization.

4) It is hereby directed to the respondent No. 1 and 2 that the possession of shop No. 2 situated at Flowers apartment from plot No. 109 in Sector 4 of Taloja - Panchanand, New Mumbai, be given to the Complainants within 60 days from the date of order.

5) The respondent No. 1 and 2 shall jointly or severally pay the amount of Rs. 3,00,000/- (Rs. Three Lacs only) towards compensation.

6) The respondent No. 1 and 2 shall jointly or severally pay the amount of Rs. 10,000/- (Rs. Ten Thousand only) towards the expenses of the proceeding.

7) The respondent No. 1 and 2 shall follow the order mentioned at Sr. No. 3, 5 and 6 within 30 days from the date of order if not do so then the respondents shall be liable to pay 18% interest on the compensation amount mentioned at Sr. No. 5 from the date of filing of the complaint i.e. 04/03/2015 till actual realization.

8) The certified copies of this order be send to both the parties free of cost."

Aggrieved the Developer preferred an Appeal before the State Commission which modified the order of the District Forum in the afore-noted terms.

We have heard the Learned Counsel for the parties and perused the material on record.

Learned Counsel appearing for the Revision Petitioner stated that the Petitioner is neither owner nor developer and that the Complaint is not maintainable against them as the Complainant was seeking possession of Shop No. 2 in the absence of any agreement/ privity of contract in respect of said shop between the Complainant and the Petitioner, much less after execution of sale deed dated 06.08.2012, registered at S. No. 507 on 16.10.2012. He further contended that the dispute relates to allotment of a shop in a commercial premises and therefore the Complainant is not a Consumer; that the Complainants have gone through the sale deed and after being satisfied of the content signed the same before the sub Registrar Panvel; that on 28.08.2013, they intentionally avoided to take possession of the said shop and started demanding an amount of Rs. 9,75,000/- and issued a false notice through their Advocate. The Complainants also acknowledged three cheques drawn on Karur Vysya Bank and cleared on 21.07.2014, 06.08.2014 totaling to Rs. 2,10,000/- and the Complainant had accepted the same.

It is seen from the record that the District Forum had passed an ex parte order directing the Revision Petitioner herein to refund Rs. 9,75,000/- with interest @ 18% p.a. from 31.07.2012 and also directed to deliver possession of shop no. 2 in flowers apartment, together with compensation of Rs. 3,00,000/- and Rs. 10,000/- costs, which was modified by the State Commission by reducing the interest from 18% p.a. to 12% while retaining the rest of the order. The material on record i.e. the sale deed evidences that it is in respect of shop no. 2 in flowers apartment and is a registered sale deed executed by the second Respondent in favour of the Complainant. It is also evidenced by the receipts filed by the Complainant that an amount of Rs. 7,00,000/- was paid on 31.07.2012 and Rs. 6,75,000/-on 03.08.2012 towards consideration for the said shop. Keeping in view these receipts, it is clear that the Complainant had paid an amount of Rs. 13,75,000/- towards the said shop. The contention of the learned Counsel that the Complainant is not a Consumer because he had purchased the said shop in a commercial establishment is totally untenable keeping in view that the Complainant had led evidence in both the fora below that he had purchased the subject shop to earn his livelihood after his retirement. The onus is on the Revision Petitioner herein to establish that the Complainant had purchased it to engage in some large scale commercial activity and to earn profits, which in the instant case they have failed to discharge by leading any documentary evidence. Both the fora below have concurrently given a finding that the Revision Petitioner had adopted unfair trade practice by mentioning shop no. 4 instead of shop no. 2 and also in accepting an amount of Rs. 13,75,000/- towards sale consideration but only mentioning Rs. 4,00,000/- in the sale deed. Hence we do not see any grounds to interfere with the well considered order of both the fora below with respect to refund of Rs. 9,75,000/- as shop no. 2, which was belonging to the second Respondent was in fact sold without refunding this amount to the Complainants. Though we agree with the concurrent finding of both the for a below with respect refund of Rs. 9,75,000/- with interest @ 12% p.a., we are of the considered view that compensation of Rs. 3,00,000/- is on the higher side and the same is being reduced to Rs. 1,50,000/-. This amount of Rs. 1,50,000/- is being awarded on account of unfair trade practice which has been adopted by the Revision Petitioner.

With these modifications this Revision Petition is allowed in part. Time for compliance four weeks from the date of receipt of a copy of this order failing which the amount shall attract interest @ 14% p.a. for the same period. It is observed from the record that vide order dated 05.04.2018, this Commission had granted conditional stay to the Revision Petitioner subject to depositing 50% of the decretal amount awarded by the State Commission with the District Forum. Needless to add, the same shall stand released to the Complainants and will be adjusted from the decretal amount.