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Judgment
C. Viswanath, Presiding Member
The present Complaint is filed under Section 21(a)(1) of the Consumer Protection Act, 1986.
Complainants Nos.1 and 2 are husband and wife. The Complainant No.3 is their son. Opposite Party No.1 is a builder and developer and is a subsidiary of ‘Man Industries (I) Limited’, (also a ‘company duly incorporated under the Companies Act, 1956) having Corporate Office at ‘Man House’, 102, S.V. Road, Vile Parle (W), Mumbai. Opposite Party No.2 is the Director of Opposite Party No.1.
The Opposite Parties advertised about launching of (i) a 30 storied Premium Residential Tower, called ‘Man Valley Vista’ comprising of 3 and 4 BHK flats with added amenities, such as restricted access elevators, personalized entrance foyers and private landscaped terraces, swimming pool on 31st floor etc. (ii) a 30 storied commercial/IT building and (iii) a state-of-the-art world class 5 star hotel on Plot No. D-223(A), (C) and (D) in TTC Industrial Area of MIDC in Nerul, Navi Mumbai-400 706.
Case of the Complainants is that they approached Opposite Parties to book one 3BHK flat on 10.10.2008. The Opposite Parties told that they had obtained all the necessary permissions and sanctions and assured that the possession of the flat would be handed over between one and half - two years. The Complainants booked Flat No.902 in ‘Man Valley Vista’ at Rs.5,307/- per sq. ft. The Opposite Parties agreed to bear the cost of stamp duty and registration charges and also to provide one parking slot free-of-cost. The total area of the flat was 2165 sq. ft., hence the total amount to be paid was Rs.1,14,89,655/- in addition to other expenditure such as development charge, etc. amounting to Rs.3,96,885/-. As per demand, a sum of Rs.4,00,000/- was paid by the Complainants on 10.10.2008 as initial payment by three Cheques bearing No.089475 drawn on Canara Bank for Rs.1,00,000/-, No.530471 drawn on State Bank of India for Rs.1,00,000/- both dated 10.10.2008 and No.530472 dated 23.10.2008 drawn on State Bank of India for Rs.2,00,000/- respectively, acknowledged by the Opposite Parties by three separate receipts, all dated 03.11.2008. Subsequently, the area of the flat was unilaterally increased from 2,165 sq. ft, to 2,500 sq. ft. by extending balconies, and the price for additional area of 335 sq. ft. was charged at half of the rate for original area and, thus, the cost of the flat worked out at Rs.1,25,78,577.50/-. The Complainants obtained home loan of Rs.85,00,000/- on 21.10.2010. On 16.12.2010, Agreement for Sale was executed between the Parties. As per Agreement dated 16.12.2010, possession of the premises was to be handed over on or before 30.06.2011.
Believing the representations made and the undertakings given by the Opposite Parties, the Complainants paid various amounts to them against their demand notes. The details of payment made by the Complainants are as under:-
Date
Amount
Date of Receipt
Remarks
10.10.2008
1,00,000
1,00,000
2,00,000
03.11.2008
03.11.2008
03.11.2008
Payment made at the time of booking
16.12.2010
6,41,600
Being expenditure incurred on stamp and
Registration of Agreement for Sale
30.12.2010
30.12.2010
12,00,000
3,00,000
30.12.2010
30.12.2010
Against Demand Note dated 26.09.2010
06.02.2011
47,52,000
06.02.2011
Against Demand Note dated 11.01.2011
28,130
Processing fee for home loan
Total
73,21,730
In the meantime, the Opposite Parties launched a new project of 18 storied 2BHK in the same premises where only one residential 30 storied tower, one IT Park and one state of the art world class 5 star hotels were disclosed in the brochure. The Opposite Parties informed the Complainants that instead of 30 storied tower originally promised, the building would be of 20 stories and the swimming pool which was to be located on the top floor would be brought down to the ground floor and all the amenities that were to be for the exclusive use and enjoyment of the residents of the 30 storied tower would be made common to the residents of both 3BHK/4BHK and 2BHK buildings. Contrary to the assurances and the assertions made in the Agreement and in letter dated 07.01.2011 addressed to the lending bank, the Complainants received a letter dated 12.05.2011 from the Opposite Parties stating that they were still in the process of follow-up for all the permissions, approvals and sanctions in respect of the said project. Due to mounting pressure from the purchasers, Opposite Parties arranged a joint meeting on 20.12.2011 at their office, along with his Chief Operating Officer (Mr. Sanjeev Motwani) and General Manager-Marketing (Mr. Bipul Ray). In the meeting, it was revealed that they were issued a ‘stop work notice’ by MIDC and that a writ petition had been filed in the High Court. It was also announced in the meeting that those who had availed of home loans and paid huge amounts could forward the EMI details and it was assured that the Opposite Parties would reimburse the interest suffered. The Opposite Parties, however, did not act on their words even after the Complainants had submitted the payment details. Due to lack of any progress even after April, 2012, the Complainants informed the Opposite Parties, vide letter dated 26.04.2012 that they were not interested in continuing with the project and called upon them to return back the amounts already paid directly or indirectly, to reimburse the expenditure incurred on stamp duty and registration and other expenditure with ‘adequate damages’. In spite of vigorously pursuing the matter the Opposite Parties did not attend to the requests made in their letter dated 26.04.2012 and the Complainants had to continue paying EMIs to the lending bank. According to the lending bank, a sum of Rs.46,59,966/- was the amount outstanding as on 26.06.2012. On 21.06.2012, the Complainants were given a letter purported to have been written by the Complainants to the Opposite Parties requesting them to pay Rs.46,59,966/- to the lending bank and Rs.19,92,034/- to them in full and final settlement of their claim by Mr. Ramesh Vangari of the Accounts Department of the Opposite Parties. Considering the huge recurring interest liability, the Complainants had no other option except sign at the places marked by the Opposite Parties in ‘pencil’.
The Opposite Parties sent cheque No.654241 dated 25.06.2012 for Rs.46,59,966/- in favour of the lending bank through their representative on 06.07.2012, along with letter dated 22.06.2012 for closure of NRI Housing Loan. As the letter dated 22.06.2012 was not delivered to the lending bank till 06.07.2012, the Complainants were required to pay interest upto 06.07.2012 as well. The original Agreement for Sale and receipts issued by the Opposite Parties were released by the lending bank on 20.07.2012 and handed over to the Opposite Parties. The Opposite Parties sent letter dated 20.10.2012 alongwith cheque No.000046 dated 16.10.2012 for Rs.15,00,000/-. The Complainants signed the cancellation deed under coercion. Thereafter, the Deed of Cancellation was registered with the office of Sub Registrar of Assurances, Thane-6 vide Registration No.TNN2100298-2012 on 01.11.2012. Subsequent to registration of the Deed of Cancellation, the Complainants were given two cheques for Rs.19,92,034/- and Rs.92,034/-. As the Complainants were made to put their signatures under coercion, the Complainants issued notice dated 24.12.2012 to the Opposite Parties to pay them an amount of Rs.97,56,820/- towards all the losses suffered. There was, however, no response even after receipt of notice. Due to illegal act of the Opposite Parties, the Complainants lost their hope of dream home. Alleging deficiency in service and unfair trade practice, the Complainant approached this Commission with the following prayer:
“(a) to hold that the alleged concessions/waivers obtained by the Opposite Parties from the Complainants in the letters dated 21.06.2012 and 20.10.2012 and in the Deed of Cancellation and/or elsewhere, if any, are not valid and, hence, not tenable in the eyes of law being null and void;
(b) to direct the Opposite Parties to pay compensation for loss of opportunity commensurate with the present market value of a residential flat admeasuring 2500 sq. ft. area of the standard offered to, and booked by, the Complainants which has been worked out in paragraph 40 at Rs.2,99,88,750/- ( Rupees two crores ninety nine lacs eighty eight thousands seven fifty only); or any other amount as this Hon'ble Commission may be pleased to decide;
(c) to direct the. Opposite Parties to reimburse the interest of Rs.7,41,488/- (Rupees seven, lacs forty one thousands four hundred eighty eight only) paid by the Complainants to the lending bank as detailed at item 2 in the table in paragraph 42 on the home loan taken by them and fruitfully and gainfully used and enjoyed by the' Opposite Parties, and accrued interest thereon @ 18% p.a. fill the date of payment;
(d) to direct the Opposite Parties to pay interest @ 18% on the amount of Rs.25,41,600/- (Rupees twenty five lacs forty one thousands six hundred only) from the dates of payment which works out, to Rs.14,87,340 (Rupees Fourteen lacs eighty seven thousand three forty only) as on 31.10.2013, as detailed at item 3 , in the table in paragraph 42 and accrued interest thereon till the date of payment;
(e) to direct the Opposite Parties to pay to the Complainants the sum of Rs.6,41,600/- (Rupees six lacs forty one thousand six hundred only) spent by them on stamp duty and registration on behalf of the Opposite Parties and which amount has been given due credit for subject of course to the undertaking given by the Complainants in paragraph 41 above;
(f) to direct the Opposite Parties to reimburse the amount of Rs.43,176/- (Rupees forty three thousands one hundred seventy six only) being the difference between the principal amount paid to the lending bank and the amount received from the Opposite Parties, as detailed at item 2 in the table in paragraph 42;
(g) to direct the Opposite Parties to reimburse the expenditure of Rs.28,130/- (Rupees twenty eight thousand one hundred thirty only) incurred by the Complainants in obtaining the home loan which was fruitfully and gainfully utilized by the Opposite Pities, as evidenced by Annexures-D and I-1;
(h) to direct the Opposite Parties to pay compensation of Rs. 25,00,000/- or any other amount that this Hon'ble Commission, may be pleased to decide for causing mental agony, tension, depression etc.;
(i) to award exemplary costs upon the Opposite Parties;
(j) to pass any other order and/or direction as the facts and circumstances of the case may demand and as may be deemed fit and proper by this Hon'ble Commission.”
The Opposite Parties resisted the Complaint by filing reply stating that the Complaint was not maintainable as the Complainants had already settled the matter with Opposite Parties before filing this Complaint. The Complaint has been filed after Complainants voluntarily opted for cancellation of booking on 21.06.2012 against refund of entire amount of Rs.66.52 lakhs. The Complainants also signed the Cancellation Deed on 20.8.2012 which was registered on 01.11.2012 only after getting additional sum of Rs.15 lakhs as losses/damages/ compensation by confirming not to make any claim for damages or compensation or otherwise whatsoever against the Opposite Parties. The Complainants voluntarily withdrew the booking and were liable for forfeiture of amount of Rs.12.6 lakh, i.e. 10% of consideration amount deposited by them in terms of Agreement to Sell, dated 16.12.2010. The Complainants were, however, benefited by Rs.Rs.27.6 lakhs. The compromise between the Parties was binding on them to perform their promise. As such, there is no subsisting cause of action for the Complainants to file the present Complaint and the Complaint deserves to be dismissed.
Heard the Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Complainants stated that the Opposite Parties did not have permissions from the concerned authorities. The contention of the Complainants has been corroborated by evidences obtained from the Maharashtra Industrial Development Corporation under Right to Information Act. The Opposite Parties made false promises in the Agreement for Sale dated 16.12.2010 and in its communication dated 07.01.2011, addressed to the lending bank to induce them to release home loan. It was only through letter dated 12.05.2011 by the Opposite Parties that the Complainants came to know that the assurances made by the Opposite Parties were false. The Complainants were handed over a letter dated 21.06.2012, purported to have been written by them to the Opposite Parties. The Complainants stated that they were coerced to put their signatures at the places marked with pencil, as they had no other alternative to escape from payment of EMI of Rs.51,066/-. The letter was not a voluntary offer made by the Complainants but was prepared by the Opposite Parties and the Complainants were coerced to put their signatures thereon. It was stated that the Complainants had suffered loss of Rs.96,57,638/- in addition to loss of opportunity, and it is incomprehensible that the Complainants would willingly settle their claim for Rs.66,52,000/-.
Learned Counsel for the Opposite Parties submitted that as per Agreement to Sell dated 16.12.2010, the persons withdrawing from the booking were liable for forfeiture of earnest money being 10% of the consideration amount but in view of compromise leading to the Deed of Cancellation dated 20.08.2012, no deduction was made and in fact the amount paid by Complainants was refunded to them. The offer letter dated 21.06.2012, for cancellation of Agreement to sell and refund without any deduction was accepted by the Opposite Parties and in pursuance thereof, the bank loan was repaid by the Opposite Parties on 22.06.2012 and Deed of Cancellation, dated 20.08.2012, was executed in full and final settlement of account and each others claims. The Complainants back tracked after sometime from their offer dated 21.06.2012 and started blackmailing the Opposite Parties for additional payment for getting the cancellation deed dated 20th August, 2012 registered. Opposite Parties, to close the matter made an additional payment of Rs.15 lakhs as compensation to the Complainants, vide letter dated 20.10.2012, wherein it was reiterated that Complainants agree to waive all claims, charges, rights and interest against the subject booking agreement and Opposite Parties shall not be liable to any further amount whatsoever to the Complainants in this regard. There is no cause of action subsisting and none of the allegation made in the Complaint have any relevance.
Admitted facts in this Complaint are that the Complainants booked a 3BHK flat admeasuring 2165 sq. ft., Flat No. 902 on 10.10.2008 at a negotiated cost of Rs.1,18,86,540/- in a premium residential tower called ‘Man Valley Vista’ at Plot No. D-223(A), (C) and (D) in TTC Industrial Area of MIDC in Nerul, Navi Mumbai-400 706. The Complainants had paid booking amount of Rs.4,00,000/- on 10.10.2008. The Opposite Parties later informed the Complainants that the area of the flat was increased to 2500 sq. ft. and the additional area was charged at half of the rate for original area. An additional cost of Rs.2,00,000/- was also charged for the parking slot the total worked out at Rs.1,25,78,577.50/-. On 16.12.2010, Agreement for Sale was signed by the Complainants in which the Opposite Parties undertook to hand over possession of the premises on or before 30.06.2011. The total amount paid by the Complainants directly and indirectly, as on 06.02.2011 was Rs.73,21,730/-. The Opposite Parties, vide communication dated 12.05.2011, informed that there was delay in sanctions on the part of Governmental Authorities. On 20.12.2011, it was further informed that the Opposite Parties have been served with a stop work notice by MIDC and they filed a writ against the said notice. After waiting for four more months, the Complainants, vide letter dated 26.04.2012, withdrew the booking and called upon Opposite Parties to return the amounts paid by the Complainants along with adequate compensation. The Complainants had signed letter dated 21.06.2012 and Opposite Parties paid Rs.46,59,966/- to the Lending Bank, and Rs.19,92,034/- to the Complainants. After numerous attempts to settle the claim and execute Deed of Cancellation, the Opposite Parties, vide letter dated 20.10.2012, agreed to pay Rs.15,00,000/- as “compensation for inconvenience” to the Complainants, which was paid on 01.11.2012 along with registration of Deed of Cancellation. The Complainant while accepting the payment had also signed waiver of all claims, charges, rights and interest in the aforesaid premises.
It is admitted that the Opposite Parties had not obtained necessary permissions/approvals before offering the flats to the purchasers. On the other hand it is also an admitted fact that the Complainants withdrew their booking and asked for refund from the Opposite Parties on 26.04.2012. The Opposite Parties while cancelling the booking, made payment for refund as well as compensation, consisting of a total payment of Rs.81,52,000/- to the Complainants as on 01.11.2012, including the payments to the lending bank, which is not denied by the Complainants. The Complainants had also accepted the payment and signed a deed of cancellation dated 20th August, 2012. Clauses 5 to 10 of the cancellation deed are relevant, which reads as follows: -
“5. In view of the said cancellation it is further confirmed and recorded that purchasers and/or bank shall not raise any claim against premises and/or promoters, for any loss suffered by the purchasers due to payment of interest to the Bank for the loan amount, processing fees etc. for availing the s aid loan in respect of the said premises.
It is confirmed and recorded that the said purchases and/or their respective nominees, assignees shall have not right, title or interest in respect of the said premises or any part thereof and that the said purchasers and/or their nominees, assignees hereby agree to withdraw all their rights, interest, claims and/or demands in respect of the said premises or under the aforesaid agreement for sale.
It is agreed that in view of this cancellation, the said purchasers have no right, title, demand or claim of any nature whatsoever in respect of the said premises under the said agreement for sale and all the rights under the said agreement for sale are hereby extinguished and the parties hereto are discharged from all their respective obligations under the said agreement for sale.
It is agreed that purchasers have no right, title, demand or claim of any nature whatsoever in respect of the said premises under the said agreement for sale or otherwise against the said promoters and all the rights under the said agreement for sale are hereby extinguished.
The parties hereto are discharged from all their respective obligations under the said agreement for sale.
It is agreed that neither party has any claim for damages or compensation or otherwise whatsoever arising out of or under the aforesaid Agreement for Sale.”
(Emphasis supplied)
In view of the Agreement/cancellation deed, no cause of action survived for the Complainants to file a Consumer Complaint. With regard to the contention made by the Complainants that they were coerced by the Opposite Parties to sign the document, there is no material on record to show that the Complainants were coerced or there was any kind of threat was given by the Opposite Parties. The Complainants were only provided with the document to consent for the payment offered by the Opposite Parties, which was duly accepted by the Complainants. The instant Complaint is nothing but an afterthought and deserves to be dismissed.
For the foregoing discussion, the Complainants failed to point out any deficiency in service or unfair trade practice on the part of the Opposite Parties. The Complaint is accordingly dismissed.