NARI GULABANI Vs. NIRAJ KAKAD CONSTRUCTIONS

JUDGEMENT

(1.) Heard Mr. Sanjoy Kumar Ghosh, Advocate, for the complainants, Mr. Manish Paratap Singh, Advocate, for opposite party-1 and Mr. Uday B. Wavikar, Advocate, for opposite parties-2 to 4.

(2.) Nari Gulabani and Deepak Gulabani have filed above complaint for directing the opposite parties to (a) handover possession of Flat No.702, admeasuring 550 sq. ft. carpet area, 7th Floor, in 'Devi Kakad Solitaire', Plot No.124, CTS No.213, Village Chembur, after accepting the balance consideration of Rs.20.00 lacs; or in alternative (b) refund the amount of Rs.14000000.00 with interest @ 18% p.a. from the date of filing of the complaint till actual payment; (c) award compensation of Rs.10.00 lacs for mental torture and hardships caused to the complainants; (d) award cost of Rs.200000.00; and (e) any other relief deems fit in the facts of the case.

(3.) The complainants stated that opposite party-5 was the owner of the project land Plot No.124, CTS No.213, 213/1, 213/2 and 213/3 Village Chembur, Taluka Kurla, Mumbai Suburban District and opposite parties-2 to 4 were share-holders in opposite party-5 and lessees of the land. Opposite parties-2 to 5 obtained Intimation of Disapproval (IOD) dtd. 13/12/2010, revised IOD dtd. 21/11/2013 and commencement certificate (CC) dtd. 3/5/2014, for raising construction over the land. Opposite party-1 was a developer. Opposite parties-2 to 5 executed a Development Agreement dtd. 19/8/2013 and Power of Attorney dtd. 30/12/2013, authoring opposite party-1 to construct new building 'Devi Kakad Solitaire' over the project land. Under the Development Agreement, entire development had to carried out by the own expenses of opposite party-1, who was required to give 58% of the built up area to opposite parties 2 to 4, in which, 16 flats were allotted to the original lessees and opposite party-1 was entitled for 42% of the total built up area and authorised to sell it. The complainants are real brothers and booked Flat No.702, carpet area 550 sq.ft. with one car parking for a consideration of Rs.16000000.00 in their joint names in 'Devi Kakad Solitaire' vide allotment letter dtd. 16/12/2015 and agreement for sale dtd. 4/4/2016 executed by opposite party-1. The complainants made payment of Rs.10.00 lakhs on 16/12/2015, Rs.10.00 lakhs on 18/12/2015, Rs.10.00 lakhs on 28/12/2015, Rs.10.00 lakhs on 20/1/2016, Rs.10.00 lakhs on 3/2/2016, Rs.10.00 lakhs on 4/2/2016, Rs.10.00 lakhs on 22/2/2016, Rs.13.40 lakhs on 17/3/2016 and Rs.1.60 lakhs on 17/3/2016 (Rs.85.00 lakhs). As per clause 6 of the agreement, Rs.55.00 lakhs was to be paid on or before execution of agreement and Rs.20.00 lakhs at the time of possession. After execution of the agreement, opposite party-1 informed the complainants that OP-1 has taken loan from Capital First Limited who has created charge on part of the property. Opposite party-1 orally asked the complainants to pay Rs.55.00 lakhs to Capital First Limited, which was paid by the complainants on 16/4/2016 and intimated to OP-1, vide letter dtd. 16/4/2016. The complainants paid total amount of Rs.1.40 crores and the balance amount of Rs.20.00 was to be paid at the time of possession. As per clause 8 of the agreement, possession of the flat had to be delivered by December, 2016. Opposite parties-1 to 4, vide public notice dtd. 5/12/2016 cancelled the development agreement dtd. 19/8/2013 which was executed in favour of OP-1. On 17/12/2016, the complainants replied to the public notice dtd. 5/12/216 informing opposite parties-2 to 4 that the complainants have claim, right, title and interest in the property in question which was not replied by them. Then the complainants filed this consumer complaint on 22/2/2017.