HEMANT Vs. M/S. ZENAL CONSTRUCTION PRIVATE LIMITED

JUDGEMENT

(1.) Heard Mr. Jay Savla, Sr. Advocate, assisted by Mr. Akshay Sharma, Advocate, for the complainants and Mr. Sameer Kumar, Advocate, for the opposite parties.

(2.) Dr. Hemant Shah and Mrs. Mita have filed above complaint, for directing the opposite parties to (i) undertake construction of the second plot as described in the second schedule of the property in the agreement to sale dtd. 5/11/2007, in a time bound manner and handover possession of the premises to the complainants forthwith; or in alternate (ii) refund Rs.87996796.00 with interest @24% per annum from the date of respective deposit till the date of refund; (iii) pay damages for deficiency in service; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

(3.) The complainants stated that Dr. Hemant Shah (complainant-1) obtained M.D. (Radiology) degree, in 1989 and set up a diagnostic clinic in the year 1994, in an accommodation of 850 sq.ft. at 112-113, Ashoka Super Market, Junction of S.V. Road and Aarey Road, above Bata Showroom, Goregaon (West), Mumbai, from where he used to provides diagnostic services of Digital X-ray, Digital Sonography, Whole Body Colour Doppler Sonography, 2D Colour Eco Cardiography, Digital OPG, Digital Lateral Cephalogram, 3D and 4D Sonography and various other pathology services, with the help of staff of 10 persons. There was no C.T. Scan and M.R.I. services in Goregaon (West) area, till the year 2003. Complainant-1 saw this an opportunity to establish a State of Art Radiology Centre in Goregaon (West). For the said purpose, the existing clinic of complainant-1 was insufficient, as C.T. Scan set up requires at least 500 sq.ft area and M.R.I. set up requires at least 800 sq.ft area. Complainant-1 has earned good-will and reputation in the locality as such he was searching an alternate accommodation in the locality of S.V. Road. M/s. Zenal Construction Private Limited (opposite party-1) was a company, registered under the Companies Act, 1956 and Mr. Prakash J. Barot was its director. The opposite parties were engaged in the business of development and construction of multi-storey residential and commercial buildings. The opposite parties launched a project in the name of 'Krishna Ambika Arcade' at S.V. Road, Goregaon (West), under redevelopment agreement dtd. 12/2/2001 and 21/3/2003 which was at a distance of 25 mtrs. from the clinic of complainant-1, across the road. The complainants decided to purchase ground floor and first floor, interconnected by internal staircase in the said building 'Krishna Ambika Arcade'. The complainants negotiated with the opposite parties, who agreed to sell 1245 sq.ft at ground floor and 1275 sq.ft. on the first floor with interconnected by internal staircase in Wing-C of the said building for Rs.20700000.00. As at that time, necessary sanction/NOC for construction of building were not issued, the opposite parties issued allotment letter dtd. 16/10/2003, in respect of above accommodation. The opposite parties informed that building plan would be obtained till December, 2003. The complainants deposited Rs.2500000.00 on 31/10/2003 and Rs.2500000.00 on 10/12/2003. In February, 2005, the opposite parties informed that the building plan has undergone certain changes due to which carpet area of the shop at ground floor was increased to 1255 sq.ft and first floor to 1990 sq.ft. Therefore an additional amount of Rs.12000000.00 was payable and issued additional allotment letter dtd. 28/2/2005 and the complainants deposited Rs.200000.00 on 26/2/2005. The construction was not started even at that time. The opposite parties executed two Agreements for Sale dtd. 5/11/2007 in respect of two shops, in which carpet area of the shop at ground floor was mentioned as 1205 sq.ft and first floor was mentioned as 2275 sq.ft. For increase of 235 sq.ft. area, Rs.3200000.00 was charged. At the time of agreement, the complainants paid Rs.8000000.00 in cash and Rs.6500000.00 through cheque on 5/11/2007, Rs.2000000.00 on 23/11/2007, Rs.1000000.00 on 17/12/2007 and Rs.1000000.00 on 17/12/2007 to the opposite parties. The opposite parties did not start construction. On persistent inquiry, the opposite parties informed that the owners of the flats of premises Wing-A and Wing-B have filed Special Civil Suit No.89 of 2007. In this suit a notice of motion No.95 of 2007 was moved by the plaintiffs of for interim injunction, which was rejected by trial court, vide order dtd. 5/8/2008. The plaintiffs filed an appeal registered as A.O. No.884 of 2008, which was allowed on 21/1/2009. Special Civil Suit No.89 of 2007 has been filed on the ground that without taking consent of the plaintiffs, the opposite parties have amalgamated adjoining land in their land and constructing Wing-C and Wing-D. The order dtd. 21/1/2009 of Bombay High Court was a bolt from the blue to the complainants. The opposite parties were assuring to resolve the issue with the flat owners. Complainant-1 suffered a heart attack on 5/7/2016. On 6/7/2016, he underwent an angiography. On 8/7/2016, he was diagnosed with acute calculus cholecystitis. On 15/7/2016, he was operated for removal of gall bladder. In C.T. scan a large lesion in the left iliac bone was found. In MRI multiple lesions in the spine as well were found. The biopsy report showed that complainat-1 had multiple myeloma (cancer). Complainant-1 underwent 10 sessions of radiation at Hinduja hospital. On 22/8/2016, chemotherapy was administered and he was advised 4-6 cycles of chemotherapy. If the opposite parties are not in position to construct the building and handover possession, they are liable to refund entire amount deposited by the complainants with interest @24% per annum, Then this complaint was filed on 16/12/2016, alleging deficiency in service.