KINGSTON PROPERTIES PVT. LTD Vs. NARAYAN PRASAD GOENKA

JUDGEMENT

(1.) The present First Appeal has been filed under Sec. 19 read with Sec. 21(a)(ii) of the Consumer Protection Act, 1986 (for short, "the Act") by the Kingston Properties Limited and Mr. Vikas Oberoi (hereinafter referred as Appellants/Opposite Parties) against Mr. Narayan Prasad Goenka and Ms. Meena Devi Goenka (hereinafter referred as Respondents/Complainants) assailing the Order dtd. 9/1/2019 passed by the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai (hereinafter referred as "State Commission") in the Consumer Complaint No. 328 of 2014 (CC/14/328) which was filed by Mr. Narayan Prasad Goenka and Ms. Meena Devi Goenka against the Appellants herein, whereby the Complaint filed by the Complainants was partly allowed and the Appellants were directed to pay Rs.25,000.00 as Costs and Rs.1,00,000.00 as compensation for mental agony. The Complainants are also directed to deposit Rs.1,14,960.00 with the learned State Commission, and upon execution and registration of the agreement by the Appellants herein within two months, the Complainants shall deposit the balance amount of Rs.37,17,040.00 with 9% p.a. interest from 01/10/2004 till the date of deposit, after which possession of the flat/Unit with all amenities and documents shall be handed over.

(2.) The facts in brief are, that the Complainants (Respondents herein), induced by representations made by the Opposite Parties (Appellants herein) regarding a project known as "Oberoi Woods" at Goregaon (East), agreed to purchase a flat/unit for a total consideration of Rs.38,32,000.00, and paid Rs.1,91,600.00 as earnest money on 2/4/2004. Despite receiving the amount, the Opposite Parties failed to issue a receipt or execute a written agreement as mandated under the Maharashtra Ownership Flats Act, 1963 (hereinafter referred to as "MOFA"). The Opposite Parties had assured possession within 8 months and agreed that the balance payment would be accepted at the time of possession. The Complainant's partner, Mr. Pawan Drolia, had also paid Rs.2,24,000.00 for a separate flat but later cancelled due to deficiencies in service and requested adjustment of the said amount towards the Complainant's booking; however, this request was ignored. Multiple letters dtd. 18/8/2004, 9/9/2004, and 15/9/2004 were sent by the Complainants requesting receipts and execution of the agreement, which the Opposite Parties failed to comply with. Eventually, the Opposite Parties issued a cheque of Rs.1,14,960.00 dtd. 3/8/2004 after deducting 2% of the flat cost, citing non-payment of 20% of the total amount. Thereafter, the Complainants in their letter dtd. 26/10/2004 clarified that the cheque issued by the Opposite Parties was accepted without prejudice to his rights and contentions. The Complainants denied any agreement permitting a 2% deduction upon cancellation and refuted the claim that they failed to pay 20% of the flat's value, reiterating that it was agreed the balance payment would be made upon possession. As the Opposite Parties did not respond to this clarification, the Complainants, through a letter dtd. 23/11/2004, reminded them of the short payment and warned that failure to take corrective steps would result in legal action. However, instead of addressing the legitimate grievances, the Opposite Parties responded with false allegations in their reply dtd. 1/12/2004. Consequently, the Complainants filed Consumer Complaint No. 144 of 2005 (CC/05/144) before the District Consumer Disputes Redressal Forum, Mumbai Suburban (hereinafter referred to as the "District Forum"). However, the said complaint was subsequently withdrawn by the Complainants, as reflected from the Order of the District Forum dtd. 17/9/2013.

(3.) Thereafter, the Respondents/Complainants filed a complaint before the State Commission with the following prayer: