RATNA ALEXANDER BHAMBHANI vs RUBY COMPLEXES PVT. LTD.

MRS. Ratna A. Bhambhani filed this complaint against Ruby Complexes Pvt. Ltd. and others for deficiency in service, unfair trade practices etc. and demanded compensation of Rs. 19,99,950 as per page 8 of complaint.

MRS. Bhambhani is NRI (Non-Resident Indian) widow often staying in London. She desired to return to India and live peacefully in the old age. She chose to settle in Baroda in or around 1992. She also runs a Charity organization named "Age Concern Day Centre" in Baroda. She had rented a flat for above purpose and residence. Complainant came to know about Tirth Apartment Scheme and after going through the brochure, was impressed by workmanship, quality of materials and overall get up of flats promised in it (Page 2 Para 5). Complainant visited office of Opp. 1, where she met Opp. 2, who said the price of flat is Rs. 1,200 per sq. ft. because of high class materials like Tiles, Marbles and Jaguar Sanitary fittings. The flats were going to be luxurious as per brochure. Opp. 2 also stated about covered car park and telephone lines. Opp. 2 gave estimate of Rs. 16.75 lacs for a flat (Page 3, para 6), exclusive of registration charges of Rs. 25,000 was required to be paid. The total amount that complainant will have to pay will be Rs. 17,00,000. The project was to be completed latest by Jan. 1998. Opp. 2 is alleged to have said that the complainant will have to pay Rs. 6,50,000 for which no receipt will be given, the balance amount will be official price of flat plus developmental charges, maintenance, car park and registration fees (page 3, para 6).

The complainant selected Flat No. 403. On request of complainant opponents reduced the amount to Rs. 15,60,000 as one time total payment, that flat will be handed over by December 1997 and if delayed will pay interest at the rate of 13.5%. Meeting with complainant was held on 26.12.1996, where all opponents were present, they discussed in detail, agreed for necessary adjustment in flat. Construction was to be per brochure. Mode of payment was Rs. 650,000 for which no receipt was given. The complainant also made official amount part payment by 3 cheques "Payable to some relatives of Mr. Bhadresh K. Shah in UK". Cheques were of National Westminster Bank, London. Amount paid was in Sterlig Pounds. Complainant also gave post-dated cheques for Rs. 7.20 lacs to opponent-2 dated 2.2.1997. Agreements for Sale were executed (page-3, para.8). On January 27, 1997 the peon of opponents approached for signature on blank stamp papers, which complainant refused.

COMPLAINANT communicated with opponents from UK. She was assured of progress in work and handing over of flat latest by January 1998 end. She arrived from UK on 17.11.1997 and saw that construction was grossly incomplete and opponents had no answer for the same. She had already brought Rs. 5 lacs worth furniture paying Rs. 75,000 for transport. COMPLAINANT and opponents mutually agreed for original brochure plan construction after discussion and signed to that effect on 1.2.1998. COMPLAINANT had supplied bathroom fittings and tiles worth Rs. 75,000 which the opponents cirminally misappropriated. COMPLAINANT became sick and decided to go to UK. She held meeting with opponents, who assured her that work will be completed by 1.3.1999 and flat will be handed over. Opps. also paid Rs. 20,000 by cheque and Rs. 15,000 as cash as interest earlier in year 1998. COMPLAINANT was assured of Registration and Revenue Record. Complainant was called on 23.2.2000 to the office of opponents for registration, but money was asked and no process done for registration. Complainant left, but overhead the opponents say "She is an old woman. She will die in few years and flat will be ours".

COMPLAINANT sent notice to Opp. 3 for receipt of Rs. 45,200 which Opp. tore off, stopped the construction work and asked the complainant to go to Court, which complainant did and got the possession of incomplete flat (page 7, para 21). The complainant narrates incomplete work in para 22 of the complaint. She has also obtained certificate of Architect for work not done in her flat. Complainant says she had paid total price of flat plus Rs. 40,000 maintenance, Rs. 50,000 for car park and Rs. 25,000 plus Rs. 42,500 for registration fee, Rs 25,000 for development charges and all other amounts. Complainant has also supplied bathroom fittings. The name plate of complainant was removed from building board. Complainant says she has suffered tremendous mental torture and agony, physical strain, resulting in ill-health. She has suffered hardships, humiliation, harassment, savings of her life and asks for compensation of Rs. 19,99,950 (pages 8-9, para 23). Complainants have stopped paying interest after paying twice.

COMPLAINANT states about pecuniary and territorial jurisdiction of this Commission. COMPLAINANT (in para 32, page 10) prays for completion of remaining work in flat as per agreement, pay damages of Rs. 19,99,950 with interest at 13.5% from date of this application.

AFFIDAVIT is duly filed. Annexures are attrached. The opponents were duly served. They have filed their written statements Exh. 5, wherein they state : - Complaint is false and deserves to be dismissed - Opponents deny all allegations and averments - Complainant has suppressed material facts - Complainant is not consumer - Opps. agree that complainant selected Flat No. 403 - Opps. deny reduction in price and payment of interest - Opps. deny having received material for bathroom fittings - The opponents have not paid any interest as claimed by complainant - Opps. say it is not true that flat is incomplete, does not have water or electricity connection or telephone lines. - Complainant has not paid maintenance, car park and developmental charges totalling Rs. 2,00,000 - Opps. deny loss and damages to complainant and say complainant is not entitled to the claim of Rs. 19,99,950. - Opps. were restrained by order of Collector to continue building work from July 1997 to Jan. 1998. Complainant knew about the same. - Complainant obtained possession of flat without paying dues by police action in year 2002. - The opponents refer to Clause 4 of agreement wherein delay on account of legal orders were required to be considered as factors holding them not liable for delay. - Opps. have not taken any action permissible by agreement condition Nos. 12, 21 and 27 is a generous consideration to the complainant. - Opps. say there are 20 well contended families are residing in these flats. Written statement is duly signed with affidavit jointly by opponents. Annexure including brochure copy and agreement copy are attached with written statement.

Exh. 10 is the rejoinder affidavit by complainant confirming her previous statements in complaint and denying all averments of opponents given in written statement.

WE have perused documents on records, more specifically money receipts, brochure, valuation reports of Surveyors. WE have also heard the complainant''s oral arguments and also perused her written submissions. WE have heard the learned Advocate for opponents. It is not in dispute that Mrs. Ratna Bhambhani had selected to buy Flat No. 403 in ''Tirth'' Pashabhai Park, Race Course Road, Baroda (Page 23, Annexure-B). It is also not in dispute that she paid of Rs. 9,10,000 (Rupees nine lacs and ten thousand) as per receipts (Annexures H, I and J - Pages 31, 32 and 33). It is also not in dispute that some works remain to be done in flat 403 above mentioned, though the quality and quantity of same is disputed by both parties.

IT is also absolutely clear from presentation of both parties to this complaint, both oral and written that complainant wants the work done and opponent''s LA categorically states that opponents are willing to complete the work in the flat as per brochure, if the complainant gives them possession of flat for a period of 1 month or arrange to keep the flat open and permits the work. (IT is noted here that complainant has stated before this Commission her often visits to UK and plans.) The complainant''s Surveyor Mr. A.V. Kotecha''s Report dated 8.4.2002 - Annexure-8) states with affidavit, the value of incomplete work as Rs. 2,00,000 (on page 5a) of his report and market value of flat as Rs. 10,40,000. The complainant has also submitted another Surveyor''s report (Exh. 40) dated 18.12.2002, subsequent to the first report wherein the total cost of "all inclusive and the un-priced items will be approximately Rs. 4,00,000." It must be noted here that this report contains certain items, the quantity and price of which appears to be differing from that of brochure and also includes some items and included in contract. It is also not clear why was second report by the other Architect was sought when one, chosen by complainant herself had given report.

THE opponents have also appointed their Government approved Surveyor Architect-Valuer (Exh. 24) who has put "so the total valuation of left out work = 55,280, say Rs. 55,300. THE above Valuer has filed affidavit.

THUS it is absolutely clear that complainant''s Flat No. 403 at ''Tirth'' Baroda has some work left undone. The opponents agree to this fact. Their main objection is that complainant is not helpful in allowing to carrying out the remaining work, because of her frequent visit abroad and for other reasons not known to them. Opponents also submit that they are willing and ready to carry out the left work as per brochure as far as that flat is concerned in a period of 1 month from the time they are permitted by complainant and she should pay Rs. 2,00,000 for covered car park, maintenance and development as per brochure. Complainant also wants covered car park, exemption from maintenance charge and development charge amounting to Rs. 2,00,000 which according to her she says had paid, but we don''t have any documentary evidence or receipts to show that she has paid the above amount. Opponents categorically deny the payment/complainant''s version of having paid 3 cheques on the names of relatives of opponent in Pound Sterling abroad is not borne out of record and we do not intend to comment on mode and way of payment made, if any, because such transactions on face of it may raise so may ugly question unrelated to this complaint and will not contribute to solve or help to solve the present complaint.

It will be proper and in interest of justice that opponent carry out the remaining work in Flat 403 (in question) as per brochure (Annexure 1) in one month from the time the flat is available to them. Alternatively complainant shall be paid Rs. 1,27,650 (mean of Surveyors report of complainants Surveyor A V Kotecha filed on 18.12.2002 and Surveyor Prakash Vagalia filed on 8.10.2003, both Government approved Surveyors. We have not considered the report of Akar Associates of 18.12.2002, becaue it appears exaggerated; it is also filed by complainant, that too after filing the 1st survey report (Report 2) which probably for reason best known to her. She does not press regarding compensation sought. It is clear that complainant''s claim for purchase, transport and maintenance of furniture bought in UK and brought here. The opponent cannot be saddled for the expenses so incurred (Amount being Rs. 5,75,000). There is no evidence or convincing presentation of or Rs. 1,38,000 claimed as expenses. There is nothing on record to show that Rs. 65,000 were received as Registration charges. The opponents also have on affidavit denied having received so called registration charges and there is no receipt for Rs. 3,50,000 claimed for left out work in flat is taken care of wide supra. Other claims of prayers are not convincing and proved. Oral submission of L.A. for opponents for Rs. 2,00,000 (for covered car park, maintenance and development) from complainant is not borne out from agreement or from written statement of opponents. There is nothing from complainant''s side showing such payment in form of receipt for the said purpose. The brochure is also silent on the above work. The complaint herself does not have prayer for such relief. The opponents have not shown up positive evidence that complainant shall have to pay extra Rs. 2,00,000 in their agreement or any other documents. Therefore, question of awarding such amount does not arise.

LOOKING to the facts and circumstances following order is pased : ORDER The complaint is allowed partly. Opponents shall carry out left out work as per brochure in flat No. 403 of ''Tirth'' Pashabhai Park, Race Course Circle, Baroda in one month''s time after mutually adjusting the date. Complainant will assist the opponents in giving access to the opponent for the work to be done, failing which the opponents shall pay Rs. 1,27,650 (Rupees one lakh twenty seven thousand six hundred fifty only). If the work in said flat is not completed within 2 months from this order, the opponent shall pay interest @ 9% p.a. from the date fo this order. Opponent shall also pay cost of Rs. 2,500 to the complainant.

PRONOUNCED on this 18th day of April, 2006. Registry is directed to send the copy of this order to complainant at the address mentioned below as per her application: Mr. Narayan C. Shah, Advocate, Opposite Shastri''s Pole, Kothi, Vadodara - 390 001. Complaint partly allowed.