NCDRC orders Lodha group to refund money to flat-buyer with 18% interest plus compensation
"The builders and promoters adopt a Fabian policy (a dilatory policy) and harass the consumers no end. The consumers are exasperated by senseless delays. Hopefully, the new changes made recently, would go a long way to pull the consumers chestnuts out of the fire (rescue from difficulties)," the National Consumer Disputes Redressal Commission (NCDRC) said while asking Lodha group to refund money to a buyer with interest.
The NCDRC while condemning the attempts of Lodha group and Shree Sainath Enterprises, which is part of the same group (Lodha group), for pulling a fast one on a flat buyer, asked Shree Sainath Enterprises to refund the entire money paid by the buyer with interest of 18% and also pay a compensation of Rs1 lakh.
The NCDRC ordered the Lodha Group "to pay a sum of Rs1.02 crore with interest of 18% from the date of its deposit till its realisation. It must be borne in mind that the complainants had to withdraw their fixed deposits (FDs) and suffered a loss of Rs3 lakh towards interest and other charges".
The NCDRC bench of Justice JM Malik and Dr SM Kantikar said that the realty group had played "havoc with the hard earned money of both the doctors-complainants".
The case relates to a flat booked by Dr Naren P Sheth and Dr Sudha N Sheth (the Sheths), both senior citizens, in Lodha Luxuria at Thane. They paid Rs1.02 crore out of the total price of Rs1.04 crore in instalments between 27 September 2010 and 2 November 2010. It was agreed between the Sheths, the Lodha group and Sri Sainath Enterprises that the senior citizens would get flat no 203 on the second floor, measuring 1,118 sq ft (carpet area) in the 'Fairfield' building in the project. It was also agreed that the Sheths would pay the remaining Rs2.62 lakh, while taking possession of the flat.
However, the developer and promoter avoided executing an agreement with the Sheths. The requests made by the doctor couple in this context were ignored. Their emails, dated 9 December 2010, 13 December 2010 and 20 December 2010, in this context, were not replied to by the realty group.
On 22 December 2010, the developer and promoter further demanded Rs3.96 lakh from the Sheths for car parking. The NCDRC observed, "First two floors from the ground were reserved for car parking for which the (realty group) illegally demanded additional amount from the complainants. The complainants questioned this demand, vide email dated 22 December 2010. Ultimately, legal notice dated 23 December 2010 was sent."
The Sheths were asked to make payments for car parking charges as demanded, otherwise, they would have to execute an indemnity bond to the effect that they shall not be availing the car parking facility and they will not allow to park their car there. This was done even though the agreement clearly stipulates that no further charges would be demanded. A protest was made by the Sheths vide email dated 5 November 2011, but there was no response.
On 17 January 2011, the developer and promoter forwarded the allotment letter to the complainants, which the apex consumer forum found completely arbitrary. It says, "They (Lodha group) also made a reference of executing an interim agreement, the concept of which, is completely illegal and unacceptable. In the Annexure to the allotment letter, the schedule of payment was given, but there was no reference of the amount to be paid towards the car parking. On the contrary, the agreement makes it clear that the complainants are entitled for car parking for two vehicles, but very conveniently, the (Lodha Group), in the agreement, have marked the car parking as 'Nil', instead of filing the details of the parking slots earmarked for the complainants. No extra demand has been made therein."
"The Lodha group thereafter forwarded agreement dated 18 January 2011 which is arbitrary and most of the clauses of the said agreement are contrary to the interest of the complainants. The Lodha group did not mention the time limit for executing deed of conveyance and the period of completing the project. The Lodha group have arbitrarily, informed the complainants over telephone, that if the complainants do not execute the agreement, they would proceed to cancel the allotment. It is also alleged that the Lodha group arbitrarily, in clause 28(3) have retained their rights and interest in respect of the first podium level, second podium level which is basement and stilt podium top one level garden apartment with swimming pool and club house. All these facts fall within the common use of the complainants. The Lodha group have demanded advance maintenance charges for two years, which shows that it is not going to form the society as per the provisions laid down under the Maharashtra Flat Ownership Act, 1963. It is silent about the Conveyance Deed, it states that the complainants cannot claim common amenities. There is no mention of parking space and club house. The complainants were asked to sign the agreement, without their consent," the Bench noted.
Earlier the Sheths had filed a similar complaint before the District Forum, but since it was beyond the purview of the Forum, the doctor couple were granted liberty to file the same before the NCDRC. However, when the District Forum dismissed the complaint of the Sheths, the builder and promoter, cancelled the flat allotted to the Sheths vide a letter on 2 June 2011, 'maliciously' in spite of receiving Rs1.02 crore out of Rs1.04 crore of the total value, the NCDRC observed. The Commission had also directed the builder and promoter not to create any third party interest in the suit property.
In its written statement, Shree Sainath Enterprises claimed that the complaint of Sheths is infructuous as on 30 August 2011, the flat no 203 in A wing of Fairfield building in Lodha Luxuria project was agreed to be sold to one Monish Jain and an agreement was also registered on 26 July 2011 before the sub-registrar. "The Sheths had filed their complaint before the NCDRC much later on 21 November 2011. It is admitted that no agreement for sale was executed by the complainants. Again, there is failure on the part of the complainants to comply with the terms and conditions of the application form. There is no concluded contract between the complainants and Shree Sainath Enterprises," the statement says.
The NCDRC Bench observed that the action of the builder and developer just borders on contempt of court. "It clearly goes to establish the mala fide intention on the part of Lodha group. They did not desire to allot a compartment in favour of the complainants for ulterior motives. It is also surprising to note that the Lodha group acted hurriedly and according to the counsel for the complainants, sold the flat to the new purchaser for lesser amount shown in the sale deed. At the same time, the Jains are bona fide purchasers and no orders of their eviction at this stage could possibly be passed. The only way left under the circumstances is to compensate the complainants," the Bench said.
The Lodha group also contended that the Sheths do have a flat in Colaba and are not in the need to buy a flat almost 45 kms away from this place. Similar defence was submitted by Monish Jain and Lalita Jain, who were sold the same flat by the Lodha group. The Jains contended that the Sheths live in Cuffe Parade and ran a clinic in Cooperage and also have a home in Dadar. The Jains stated that they are bonafide purchases (of the said flat) and should not be disturbed.
In her reply, Dr Sudha Sheth, in an affidavit stated that she was living in a two bedroom flat at Shivala and since this was a small flat, she was looking for buying a bigger one so that her family, including three daughters, can live at single place. She also said her daughter was living in a one bedroom flat at Dadar. The Bench accepted the contention of Dr Sheth.
The Lodha group also tried to put on the blame on the Sheths for not executing the agreement. However, the Bench rejected the argument. It said, "All these arguments have left no impression upon us. The Lodha group went on to accepting the lion's share towards the construction, delivery and possession of the flat, but they did not execute the agreement to sell. It depicts the deficiency and unfair trade practices. It is also surprising to note that after receiving almost the entire amount, the Lodha group chose to cancel the same, without giving delivery of possession. The clauses, which, the complainants did not like, were never specified. The complainants were not bound to pay the double amount for car parking. The complainants should have been warned and a notice should have been sent before cancelling the flat. This shows the arbitrary, high-handedness, arrogance, despotic and capricious character of Shree Sainath Enterprises."
The NCDRC also ratified the Supreme Court that the builder and promoter cannot demand additional money from buyers for parking. It said, "It must also be borne in mind that the Lodha group cannot demand additional sum of Rs3.96 lakh towards car parking, as per the law laid down in Nahalchand Laloochand Pvt Ltd Vs Panchali Cooperative Housing Society Ltd (2010) 9 SCC 536."
The Bench also noted that Shree Sai Enterprises on 7 June 2011 sent a cheque of Rs91.66 lakh to the Sheths against the payment of Rs1.02 crore it received. "The said amount was sent without any interest. Had the Lodha group been bona fide, they should have paid the money back to the complainants when they appeared before this Commission in the year 2011. They are illegally withholding the money of the complainants for a period of five years. No inkling about the refund of money came from Lodha group side at any time," it added.
The NCDRC then asked Shree Sainath Enterprises to pay the entire amount paid by the Sheths with an interest of 18% from the date of its deposit till its realisation and also pay a compensation of Rs1 lakh.