DR. K.D. SUCHAK & Mrs Geeta K.Suchak vs HI - LIFE DEVELOPERS PVT. LTD. & ORS

There was a delay of 26 days in filing this appeal, which was condoned vide order passed by our predecessor Bench on 05.05.2011. The facts germane to the present case are these. Hi-Life Developers Pvt. Ltd. -OP-1, Mr. Dhiraj P. Shah-OP-2, Mr. Chaitanya N Parekh- OP-3, Mr. Chirag V Shah-OP-4, Mr. Vinayak C. Shah -OP-5, issued a brochure in the year 2001 with the Scheme of construction of farm house measuring half Acre agriculture land and construction of 1250 sq.ft. in Village Ovale, District Thane. Complainants Dr.K.D. Suchak and Mrs. Geeta K. Suchak booked one half Acre farm house by paying Rs.4,50,000/- by cheques and Rs.50,000/- in cash. OP-3 issued an allotment letter dated 23.08.1991. The total consideration was agreed at Rs.6,00,000/- for the said farm house. The said project was known as "COSMOS".

Thereafter, several letters of request were sent to the OPs to hand over the possession of the farm house but these efforts made by the complainants did not ring the bell. Ultimately, the complaint was filed before the State Commission on 01.12.2001, wherein the following prayers were made:- "(a) that the opposite parties be jointly and severally directed to refund the amount of Rs.5,00,000/- (Rupees Five Lakhs only) paid by the complainants;

(b) that on the aforesaid amount of Rs.5 lakhs, the opposite parties be jointly and severally directed to pay interest at the rate of 18 per cent per annum from the dates of payment till the date of refund/realization;

(c) that the opposite parties be jointly and severally directed to pay a compensation of Rs.1 lakhs or such other amount as this Hon''ble Commission may deem fit and proper, for the harassment caused to the complainants;

(d) that the opposite parties be jointly and severally directed to pay costs of this litigation; and

(e) for such further and other reliefs and/or directions as this Hon''ble Commission may deem fit and proper. Dated at Mumbai, this 15 day of June 2001." th

It is note-worthy that in their written version filed by OPs- 1 & 3, they promised that they would hand over the possession within 9 months. It is also note-worthy that the OPs did not agree to refund the amount instantaneously but insisted that farm house would be given within a period of 9 months. They explained that OPs are ready and willing to provide the constructed plot to the complainant as per terms of the allotment letter, hence the question of refunding money together with interest and compensation, as alleged, demanded by the complainant in the instant complaint, did not arise.

The complainants moved another application dated 13.06.2003 wherein they stated that even after the lapse of 9 months i.e., till July 1992, the respondents had failed to hand over the possession and the complainant signified their interest in possession of the said farm house. The OPs further averred that they had submitted a plan to the Municipal Corporation but the same was rejected by the Corporation on technical grounds. It was contended that the complainants were aware of that. The OPs denied having received Rs.50,000/- in cash.

Thereafter, the amendment application was moved on 11.10.2005 seeking relief of the possession as well. It may be mentioned here that vide order dated 24.02.2006, the State Commission was pleased to note that the complainants had filed an application for amendment of complaint with the relief in regard to delivery of possession of plot. Before the amendment could be allowed by the State Commission, the land in question was sold in favour of Mr. Suraj P. Parmar, who was subsequently, arrayed as OP-6 in this case.

The State Commission heard the parties and passed the following order on 16.01.2010:- "1. Complaint is partly allowed.

O.P.Nos.1 to 3, jointly and severally, do pay Rs.4,50,000/- (Rupees Four Lakhs Fifty Thousand only) to the complainant along with interest @ 18% p.a. from the date of their respective payments till their realization.

O.P.Nos.1 to 3 are hereby further directed to pay an amount of Rs.1 lakh as compensation to the complainant for mental agony.

Opposite Parties to bear their own costs and O.P.Nos. 1 to 3 do pay Rs.25,000/- as costs to the complainant.

Copies of the order be furnished to the parties."

Aggrieved by the order passed by the State Commission, both the parties preferred First Appeals before this Commission. First Appeal filed by the OPs was dismissed on the ground of delay.

This stands established that the complainants paid a sum of Rs.4,50,000/- only. There is no solid and unflappable evidence to reveal that they have paid Rs.50,000/- in cash. It stands established that the mode of payment is through cheques. If one has to pay the amount in cash, he must get the receipt for the same. Absence of the receipt clearly goes to show that the said story was made out of whole cloth. Consequently, the State Commission correctly held that the complainants paid a sum of Rs.4,50,000/- only.

However, the other portion of the judgment appears to be not legally tenable. We have gone through the written synopses filed by the three parties. Counsel for the Respondents No. 1 & 3 vehemently argued that the State Commission has taken a correct view, though, there was delay in filing the complaint. He contended that the order passed by the State Commission is rather on the higher side. The prayer of possession was added after a period of 4 years, therefore, the same cannot be accepted. The learned counsel had laid emphasis on the following extracts of the Lower Court. "1. "It is not disputed that the plot is part and parcel of the agricultural land.

Further more Bombay Agricultural tenancy land Act, prohibits transfer of Agricultural land to non agricultural land except for the permission granted admittedly complainant is not an agriculturist but medical practitioner by profession.

" furthermore, looking to the development agreement dated 4.3.2005, one thing is made clear that either as an owner or developer /OP No.1/Hi-Life Developer Pvt. Ltd., has nothing to do with the property under development as per agreement dated 4.3.2005".

"the contesting OP has categorically claimed that no property which is a subject matter of allotment letter dated 23.8.1991 is since then in existence, one has to accept this contention on the aforesaid circumstances and in absence of any contradictory evidence brought on record by the complainant while granting any order, it needs to be executable order. While settling the dispute, one has to take into consideration this particular aspect. We, therefore, find that the relief of possession which is added Per amendment in the year 2006, supra cannot be granted".

It is claimed that the complainants have already withdrawn the amount deposited by the respondents in the Execution Proceedings. It is admitted that the above said amount was withdrawn by the complainants without prejudice. It was argued that the appellants/complainants are debarred and estopped from proceeding the present matter. It was prayed that this appeal filed by the complainants deserves to be dismissed.

We have also perused the written submissions filed by Respondent No. 6. It was explained that deed of conveyance was entered into between OP-6 and Mr. Dhiraj P. Shah. OP-1 has got no concern with the land. The same is in the individual name of Dhiraj P. Shah. He contended that OP-1 has got no concern with this case. There is no privity of contract between the complainants and OP-6.

This is an indisputable fact that the Builder company has no land in its name. The land was purchased in the individual names of the Directors. Though the brochures were published in the name of OP-1. It is, thus crystal clear that the gullible consumers were led up the garden path. Directors purchased the land in their individual names and sold it without bringing the company into play. They must have considered Agriculture Tenancy land Act. If the same puts a bar and they were not sure that they would get the sanction order, was their intention to take the consumers for a ride.

We find enough force in the arguments urged by the counsel for the complainants that the compensation should be enhanced. The complainants have annexed documentary evidence of a recently concluded sale of 1/4 acre plot measuring 11,414 sq.ft. in the same area. It was sold th by one of the Directors to one Mr. Darshan Bhimsen Komurlekar for Rs.79,62,500/-. The total of it i.e. of ? acre, the total amount would come to 1,59,25,000/-. It may be mentioned here that the complainants have moved an application for impleadment of Mr. Darshan Bhimsen Komurlekar but that application was dismissed. The agreement dated 24.01.2008 was placed on the record. It shows the total value of the 1/4 acre land is stated to be Rs.79,62,500/-.

We are also inclined to accept the amended prayer made in the amended appeal. Though, the farm house cannot be given to the complainants because no such land or farm house belonging to OP-1 exists. There lies no rub in the eyes of Law to compensate him as per the above said sale deed.

Had the OPs been bonafide, they would have refunded the amount, the moment, the complaint was filed or the written versions were submitted before the State Commission. However, the OPs themselves insisted that they were ready to give the farm house within a period of 9 months when they were owners of no land. Even after the lapse of 9 months, they did not hand over the plot to the complainants. Application in this context was filed but it appears that the State Commission did not pay heed to the same. It appears that OPs- 1, 2 & 3 have always made attempts to mislead the complainants. This case is pending for the last 2? decades (25 years) when the cheques were given on 23.08.1991. It is well said that justice delayed is not only justice denied, it is also justice circumvented, justice mocked and the system of justice undermined. The consumers are exasperated by senseless delay. The Ops have tried to feather their own nest i.e. to make profits for themselves often on the expenses of others. It is surprising to note that all these facts were not brought to the notice of the State Commission. The State Commission just offered pea-nuts to the complainants.

We have also taken into consideration that the complainants, first of all wanted the refund of the money and the possession of farm house crossed their mind subsequently.

In view of the above said agreement filed by the complainants on the record, the complainants are entitled to Rs.1,59,25,000/- being the proportionate costs of half an acre plot. However, they paid Rs.4,50,000/- instead of Rs.6,00,000/-. Consequently, they are not entitled to 1/4 of the said amount i.e. Rs.39,81,250/-. After deducting the same, complainants are entitled to th a sum of Rs.1,19,43,750/-. The complainants are not entitled to further interest w.e.f. 2008/2001 because they have adopted the policy of but and ben.

We, therefore, order that Rs.1,19,43,750/- be paid to the complainants after deducting the amount paid in Execution Proceedings, within a period of 90 days from the date of receipt of this order otherwise it will carry interest @ 9% till its realization. Complainants are also awarded costs in the sum of Rs.1,00,000/- for harassment, mental agony etc., which shall also be paid within a period of 90 days from the date of receipt of this order otherwise it will carry interest @ 9% till its realization.

The First Appeal stands disposed of.