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Sharma Realty Pvt. Ltd. & Ors vs. Mr. Pawan Kumar Kamlesh Tripathi & Ors dated 2012-08-03


(Against the order dated 15.11.2011 in Complaint Case No.
CC /09 /106 of the State Commission, Maharashtra)
1. Sharma Realty Pvt. Ltd.
109 Bharat Industrial
Estate LBS Marg Bhandup
(W) Mumbai 400 078
2. Shri Muktinath D. Sharma
Chairman & Managing Director
Sharma Realty Pvt. Ltd.
Bharat Industrial Estate
L.B.S. Marg, Bhandup (W),
Mumbai- 400078       
3. Mr. Vinod M. Sharma
Sharma Realty Pvt. Ltd.
Bharat Industrial Estate,
L.B.S. Marg, Bhandup (W),
Mumbai- 400 078
4. Shri Dinesh M Sharma,
Sharma Realty Pvt. Ltd.
Bharat Industrial Estate,
L.B.S. Marg, Bhandup (W)
Mumbai- 400 078                                                                                                                                                ……….Appellants
1. Mr. Pawan Kumar Kamlesh Tripathi
5 B/2 Mishra Chawl Udaya
Niwas Hariyali Village
Tagore Nagar Vikhroli (E)
Mumbai 400 083
2. Khandelwal Hermann
Electronics Pvt. Ltd.
44, 2nd Floor, REHEM
Mansion, Colaba Causeway,
Shahid Bhagat Singh Road,
3. Shri K.K.Khandelwal
44, 2nd Floor REHEM
Mansion, Colaba Causeway,
Shahid Bhagat Singh Road,
Colaba, Mumbai- 400 039
4. Mr. Shishir K. Khandelwal
22, 2nd Floor, REHEM
Mansion, Colaba Causeway,
Shahid Bhagat Singh Road,
Colaba Mumbai -400 039                                                                                                                                       .........Respondents
                              PRESIDING MEMBER
For the Appellants         :   Mr. Dilip Annasaheb Taur, Advocate
PRONOUNCED ON:   03.8.2012    
          This appeal challenges the order of the Maharashtra State Consumer Disputes Redressal Commission in CC No.09/106.  The appellant/Complainant had claimed relief against seven parties.  OP Nos.1 to 4 can be called as builders and OPs –5 to 7 as land owners.
2.      The brief facts of the case, as seen from the record, are that under an agreement of 27.5.2003, OP-5 had given the development rights over his land to OP-1. In the apartments blocks proposed for construction, flat No.406 was booked by the Complainant for a total consideration of Rs.14.82 lakhs.  An agreement of sale was executed by OP-1 in favour of the Complainant.  A loan of Rs.14 lakhs was sanctioned by ICICI Bank.  Rs.4.8 lakhs was released directly by the Bank to the builder reportedly, in response to the demand letter of 30.12.2005.  
3.      From his visits to the site, the Complainant found that there was no progress of construction on the ground, despite assurance of completion and handing over by 30.6.2007.   Therefore, a legal notice was issued to the OPs seeking refund of Rs.4.8 lakhs. Two months later, the OPs informed the Complainant that the work would soon start and that they were ready to refund the excess amount released by the ICICI Bank.
4.      Eventually, the Complaint issued a legal notice on 13.5.2009 to hand over possession of the flat or alternatively, pay the difference of price of a flat of the same dimensions and in the same locality.  This difference, according to the Complainant, was Rs.35.88 lakhs.    
5.      It is seen from the impugned order that before the State Commission, the OPs pleaded that because of the civil litigation the continuation of the development agreement of 27.5.2003 itself was threatened.  The delay of five years in obtaining the labour NOC  was another reason why construction could commence only in 2009.  It was no longer possible for them to construct the building at the rate prevailing in 2005.  Therefore, the opponents pleaded before the State Commission that they were ready to refund the money paid by the Complainant.  It was in this background that the State Commission observed:-
“So, one thing is certain that the opponent Nos.1 to 4 are unable to give possession of the flat to the complainant and they are so stating on oath in the year 2010.  Hence, deficiency in service on the part of builder/developer-opponent Nos.1 to 4 is clearly admittedly by the opponents and now, we are simply required to decide what should be the compensation payable to the complainant for the admitted deficiency service on the part of opponent Nos.1 to 4.” 
6.      Even the revision petition clearly admits not only the liability but also the petitioner’s willingness to repay the Complainant, though not in the manner ordered by the State Commission.  One of the grounds of challenge to the impugned order reads as under:-
“Because the State Commission grossly erred in overlooking the fact that the Appellant categorically admitted that he has ready to refund back the amount deposited by the Respondent with interest.  However despite the aforesaid admission on part of the Appellant, the State Commission erroneously proceeded to award amount of Rs.25,00000/- as a lumpsum without any basis.
Because there is no basis or reasoning has been recorded by the State Commission by awarding such a lumpsum amount neither there is any calculation has been placed by the State Commission on record to arrive at the calculation of lumpsum amount of Rs.25,00,000”.
7.      We have heard Shri Dilip Annasaheb Taur, Advocate on behalf of the revision petitioner and carefully perused the records of the case. Learned counsel argued on the same line as above, that refund of the amounts paid by the Complainant with reasonable interest was acceptable, but the compensation of Rs.25,00,000/- by the State Commission is not justifiable.  Learned counsel argued that in the normal course this matter should have been decided by the District Forum, but high level of compensation was claimed only to bring it within in the purview of the State Commission.  However, learned counsel could not point out what should have been appropriate compensation in the facts and circumstances of this case and whether it was suggested to the State Commission. 
8.      In the context of reasonableness of compensation, we need to take the following facts into account—
a.   The property development agreement was signed on 27.5.2003 several months before Government clearance under the Urban Land Celling Act was received.
b.   As informed by the State Commission Rs.4.89 lakhs were paid on behalf of the Complainant by the ICICI Bank, as per the demand letter of 30.12.2005. Thus, the demand for payment was raised long before the labour NOC was received in 2009.
c.   The purchaser cannot be blamed for the predicament of the builder and the decision of the latter that it was not possible to construct the building in 2009 at rates of 2005.
d.   The builder/OPs entered the agreement to sell the flat to the complainant on 29.11.2005, when the clearances necessary to commence work on the project were not even received.
9.      Coming to the award of the State Commission, we do not agree with the contention of the appellant that there was no basis for awarding compensation of Rs.25,00,000/-. While determining of this amount of compensation, the State Commission has clearly recorded:-
“In the complaint itself, Advocate Mr. K.P.Mishra has mentioned that if in the same locality at Bhandup he was to book a flat of 780 sq.ft. then he would be required to spend amount of ’35,88,000/- at the current market rate.  This was mentioned by the complainant when he filed complaint in the year 2009.  Today, as per ‘Hindustan Times’ property rates dated 12/03/2011 flat/property situated in Bhandup can be purchased @ ‘7,500/- to ‘9,000/- per sq.ft.  By that rate, complainant can be compensated.  So, instead of directing simplicitor refund of moneys with interest @ 24% p.a., we are inclined to grant lump sum compensation of ’25 Lakhs by opponent Nos.1 to 4 because complainant had simply paid total amount of ‘7,26,000/- of which some amount had gone waste which was paid by way of stamp duty, registration charges, miscellaneous expenses and that they actually got lesser amount than this amount, but the builder is unable to complete the project and is unable to give flat to the complainant.  So, taking all these facts into account and taking further facts into account that the complainant had not paid full price of the flat being ’14,82,000/- and had simply paid roughly ½ of the amount, we are of the view to settled equity between the parties, we should direct opponent Nos.1 to 4 to pay lump sum compensation of ’25 Lakhs instead of refunding of amount with interest @ 24% p.a.  We make it clear that had the complainant paid amount of ‘14,82,000/-, price agreed between the parties for the flat No.406 in Sharma Residency before filing of the complainant, we would have awarded compensation of ’35 Lakhs as per the demand made by the complainant in his complaint.”
It is evident from this that the State Commission has considered the factual background of the case while computing the reasonableness of the amount awarded.
10.    For the reasons detailed in this order, we do not find any merit in this appeal. The same is therefore, dismissed. No orders as to costs.                

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