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Nitin Mehta vs. Prashant Kumar Vijay Kumar Jain dated 2012-03-01

 

      NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
 
(1) FIRST APPEAL NO.453 OF 2009 
Alongwith
 I.A. No.____of 2009 (For condonation of delay)
 (Against the order dated  8.4.2008 in Complaint No.139/2006
 of the State Commission, Maharashtra)   
 
 
1.     Nitin Mehta,
     Builder & Developer
         Managing Director,
         M/s. Nitin Mehta Group of Industries,
     “Benzer Tower, 2nd Floor,
     Behind Hakoba Industries, Near Vasant Marbel
     Next to Asha Nagar,
     Borivali (East), Mumbai
 
 
2.      Mr. Vinay Mehta, Adult,
      M/s. Nitin Mehta Group of Industries,
     “Benzer Tower, 2nd Floor,
     Behind Hakoba Industries, Near Vasant Marbel
     Next to Asha Nagar,
     Borivali (East), Mumbai
 
 
3.     M/s. Anamika Real Estate Pvt. Ltd.
        Having their Regd. Office at:
    1, Homestead, 16, Dattatraya Road,
        Santacruz (West(
        Mumbai – 400 054. ….…Appellants 
 
Vs.
 
Prashant Kumar Vijay Kumar Jain
Adult, Residing at:
9/1-A, South Tukoganj,
Indore
(Madhya Pradesh)          ….Respondent
  
 
                     AND
    (2) FIRST APPEAL NO.454 OF 2009 
Alongwith
 I.A. No.____of 2009 (For condonation of delay) 
 (Against the order dated  8.4.2008 in Complaint No.140/2006
 of the State Commission, Maharashtra)   
1.     Nitin Mehta,
     Builder & Developer
         Managing Director,
         M/s. Nitin Mehta Group of Industries,
     “Benzer Tower, 2nd Floor,
     Behind Hakoba Industries, Near Vasant Marbel
     Next to Asha Nagar,
     Borivali (East), Mumbai
 
 
2.      Mr. Vinay Mehta, Adult,
      M/s. Nitin Mehta Group of Industries,
     “Benzer Tower, 2nd Floor,
     Behind Hakoba Industries, Near Vasant Marbel
     Next to Asha Nagar,
     Borivali (East), Mumbai
 
3.     M/s. Anamika Real Estate Pvt. Ltd.
        Having their Regd. Office at:
    1, Homestead, 16, Dattatraya Road,
        Santacruz (West(
        Mumbai – 400 054. ….…Appellants 
 
Vs.
 
Shashank Vijay Kumar Jain
Adult, Residing at:
9/1-A, South Tukoganj,
Indore
(Madhya Pradesh)          ….Respondent
  
 
BEFORE:
       HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
       HON’BLE MR. VINAY KUMAR, MEMBER       
    
 
For the Petitioner     :    Mr. Francis Paul, Advocate  
 
For the Respondent :    Mr. S.K. Sharma, Advocate with
                                      Mr. V.K. Jain, Respondent in person  
 
Pronounced on:  1st March,  2012
 
ORDER
 
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Appellants herein, who were opposite parties before the State Commission,  have filed these appeals which arises out of identical orders dated 8.4.2008, passed by State Consumer Disputes Redressal Commission, Maharasthra (for short as ’State Commission’).  Alongwith these appeals, applications for condonation of delay have also been filed.
2. It would be pertinent to point out that respondents (who were original complainants) had earlier challenged the above impugned order, in First Appeals No. 245 and 246 of 2008, which were disposed of, vide order dated 16.7.2009, by this Commission.
3. With advantage, facts as well as decision of First Appeals No. 245 and 246 of 2008 are reproduced as under;
 
“The original complainants before the State Commission have filed these appeals against the order dated 8.04.08 passed by the Maharasthra State Consumer Disputes Redressal Commission, Mumber (in short ‘the State Commission) in complaint case nos. 139 & 140/08.  The complaints before the State Commission were filed alleging deficiency in service on the part of the opposite party builder on several counts, viz, that after receipt of the substantial amount, i.e., more than 50% of the sale consideration of the apartment, the builder failed to execute the registered agreement which is mandatory as per the provisions of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 and that the construction was stopped and later on resumed but possession of the apartments was not given to the complainants.  The prayers made in the complaint were for the directions to the opposite party builder to execute the mandatory agreement and to hand over the possession of the envisaged flats in the Benzer Tower. It would appear that despite the service of notices on the complaints, the opposite parties chose not to defend the complaints and  they were, therefore, proceeded ex parte and the complaints were allowed by the State Commission with the following directions :-
1.                  Complaint is partly allowed. 
2.                  O.Ps are directed to hand over peaceful possession of flat no.1703 on 17th floor and flat no. 1803 on 18th floor in B wing of Benzer Tower CTS No. 167-A, Western Express Highway, Boriwalli (E), Mumbai to the complainants together with interest @ 9% p.a. for delayed possession from the date of respective payments till handing over possession of the flat to the complainants. 
OR
3.                  In the alternative, OPs are directed to pay to the complainants a sum of Rs.4,40,000 in complaint No.139/08 and Rs.6,40,000/- in complaint no. 140/08 along with interest @ 18% from the date of respective payments till realization to the complainants.
4.                  OPs are also directed to pay Rs.50,000/- as compensation for mental agony to the complainants and cost of Rs.5000/-.
5.                  OPs shall comply the above order within 30 days from receipt of the order. “
 
2. Though the reliefs granted to the complainants can be said to be in consonance with the prayers made by them in the complaints but the grievance of the appellants appears to be that the State Commission ought not to have granted the alternative relief as appearing in (3) above.  In any case, the prayer is that the alternative relief is not in commensurate with the loss and injury suffered by the complainants, because there has been steep  escalation in the prices of the flats in the city of Mumbai/Greater Mumbai and the 
complainants need to be compensated as per the market value at which they can acquire the similar flats on the failure of the opposite party to give the booked flats. 
3. We have heard Mr. Deepesh Joshi, learned counsel for the appellant and Mr. Francis Paul, learned counsel for the respondents and have given our thoughtful consideration to their respective submissions. 
4. During the pendency of the present appeals, the learned counsel for appellants had brought to the notice of the Commission that the envisaged flats were on the verge of completion and lying unallotted and un-occupied by any third party and, therefore, relief may be confined to the main prayer of handing over of the possession of the reserved flats.  On the other hand, it is pleaded that due to the default of the appellants in remitting the balance amount after 2001, the respondent builder had terminated the agreement and had allotted the flats to third parties sometime in 2002-03 and since third party interest has been created it is not possible for the respondent to hand over the possession of the said flats.  Parties have filed certain documents in support of their respective pleas.  From the side of the appellants, statement of one, Alpesh Desai, Sales Executive of the Opposite Party builder, made by him in the Court of Special Judge, Bhopal, has been filed. In the said statement it is stated that the constructions of the above numbered two flats allotted in the names of the appellants is in progress and allotment has not been made to any one.  Therefore, it appears to be far fetched for the respondents to contend that they had terminated the agreement  in 2002 to 2003 and allotted the said flats to third parties.  Even if it is so, this is a question which requires to be established by leading evidence when it comes to the execution of the order passed by the State Commission. 
5. So far as the contention of the Learned counsel for the appellants that the appellants are entitled to higher alternative relief than what has been granted to them, he has relied upon the judgment delivered by the Hon’ble Supreme Court in the case of Nirmala Anand Vs. Advent Corporation (P) Ltd. & Ors. – (2002) 8 SCC 146. In our view this judgment will have no application to the facts and circumstances of the present case and rather the latter judgments of the Hon’ble Supreme Court delivered in the case of GDA Vs. Balbir Singh – (2004) 5 SCC 65 & (2005) 9 SCC 573   will squarely cover the issue involved in the present appeals.  In view of this, we see no case for upgradation of  the alternative relief.
6. Since the relief granted to the appellants can be said to be in consonance with the prayers made by them in the complaints,  we are of the opinion that the appeals before this Commission are mis-conceived and are liable to be disposed of as such.  However, the que
 

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