Decided on December 21,2013

Carlos Felix Barretto Appellant
Shetty Coastal Development Pvt Ltd Respondents


USHA S.THAKARE, J. - (1.)COMPLAINANT , Mr.Carlos Felix Barretto and his wife Mrs.Rita Barretto have filed the present consumer complaint against opposite party, Shetty Coastal Development Pvt.Ltd. by alleging that the opposite party failed to deliver possession of the flat as per the agreement and further failed to refund money with interest and thereby caused loss and hardship to the complainants by adopting unfair trade practice. They are guilty of deficient service through gross negligent acts.
(2.)ACCORDING to the complainants, they had booked two flats with the opposite party. Flat No.8 out of building no.6, area 577 sq.ft. was booked for consideration of Rs. 3,30,775/ -. Flat no.4 out of building no.6, area 530 sq.ft. was booked for the consideration of Rs. 3,04,750/ -. The complainants had paid an amount of Rs. 2,50,250/ - to the opposite party towards part payment of the flat no.8. The opposite party agreed to hand over possession of flat on 13/02/1997. The complainants had paid an amount of Rs. 2,00,000/ - for flat no.4 to the opposite party towards part payment and the opposite party agreed to hand over possession of the flat on 22/03/1997. Two separate agreements were executed as per terms agreed between the parties. Location of both the flats is at Little Baga Holiday Home, Gao. The complainants were expected that those flats would be ready by 13/02/1997 and 22/03/1997 as per agreement. However, till September 1997, delivery of possession of the flats was not given. The complainant no.1 informed the opposite party about the delay in constructing the flats. The complainant no.1also informed about failure of his both kidneys and he is required to undertake regular dialysis due to failure of kidneys. Regular dialysis involved heavy expenditure. Therefore, he informed the opposite party that he would take only one flat i.e. flat no.8 admeasuring 577 sq.ft. and he had requested for cancellation of booking of other flat i.e. flat no.4. The complainant no.1 requested for refund of amount paid for the flat no.4 and refund of an excess amount paid for the flat no.8. He further requested to the opposite party to hand over the flat no.8 by October 1997 as promised by him in January 1997. The complainant issued a letter dated 02/09/1997 as there was no response to said letter and also to the personal visits and telephonic calls of the complainants. The complainant no.1 vide letter dated 30/01/1998 again reiterated his demands of cancellation of flat no.4 and refund of amount. The complainant also reminded about his kidney problem and about incurring heavy expenses. He narrated urgency for refund of money. One more letter was sent by the complainant no.1 to the opposite party on 25/05/1998 for claiming possession and refund of amount, but of no use. When there was no response from the opposite party, the complainants sent a legal notice dated 25/12/1998 to the opposite party whereby they informed the opposite party, their decision for cancellation of second flat on account of long delay and called upon the opposite party to refund the entire amount with interest @25% p.a. thereon within one month. It is warned by said notice that in any event of failure to pay the amount with interest, the complainants would file suitable claim for claiming compensation for the financial loss as well as hardship and mental torture. Since the opposite party failed and neglected to respond the legal notice, the complainants have filed the present consumer complaint. It is alleged by the complainants that the opposite party failed and neglected to complete the construction and hand over possession of two flats as promised. Therefore, the complainants were constrained to cancel booking of second flat and demanded refund of amount paid for the same. As per the agreement, the opposite party is liable to refund the entire amount along with interest @10% p.a. thereon as the construction is not completed within stipulated time. The opposite party is guilty of adopting unfair trade practice, rendering deficient service causing financial loss on account of gross negligence and therefore, it is prayed that the opposite party may be directed to refund an amount of Rs. 2,50,000/ - and amount of Rs. 2,00,000/ - with interest @25% p.a. from the date of respective payment till realization of the amount. The complainants also claimed exemplary compensation of Rs. 1,50,000/ -, costs of Rs. 10,000/ - and other suitable reliefs.
(3.)THE opposite party has resisted the claim of compensation by filing written version and denied all adverse allegations against it. It is submitted that as per clause 33 of the said agreement, the present complaint is not tenable before this Commission. The complaint is required to be referred to the arbitrator as per law. It is further submitted that as a matter of fact about 60% work of the building is completed. However, due to unprecedented recession in real estate market, the opposite party could not proceed with construction in spite of best efforts on his part. In spite of adverse conditions, the opposite party acted in the interest of flat purchasers including the complainants. He took them in confidence and informed about its inability in achieving the target and further informed to the flat purchasers including complainants about the safety of their money and/or possession of the flat. The opposite party could not complete the construction even in the extended period and with the consent of the complainants and other flat purchasers, the period of completion was extended till 31/12/2001. Therefore, the complaint filed by the complainants is pre -mature and not maintainable. The opposite party was keeping in touch with the flat purchasers from time to time and informing them the actual position and condition in market by various communications. Although, there is non -adherence to the time schedules of the agreement dated 04/04/1995, the same is as a result of conditions which are unforeseen and beyond the control of the opposite party in spite of efforts on its part. The opposite party is not negligent in proceeding with construction as alleged by the complainants. Neither benefit nor advantage was accrued in favour of the opposite party. Bonafide attitude of the opposite party can be confirmed by the fact that in spite of there being no provision for cancellation of the agreement on the part of the purchasers, the opposite party has never taken disadvantage of said fact, or refused to pay the amount received by it towards the sale of the said flat, what was sought to be cancelled. The opposite party denies the liability to pay interest @25% p.a. as demanded by the complainants. It is submitted that the opposite party has no intention to dispute the contractual liability vis - -vis the complaint. The opposite party has left no stone unturned to discharge its obligations despite tremendous odds on account of the unprecedented recession in real estate market. The opposite party has already indebted to their bankers to the tune of Rs. 3 crores. The said amount has been spent on development work and due to market conditions instead of receiving the returns on investment made; the opposite party is required to pay heavy interest which is further piling up. The complainants have demanded heavy interest. For all these reasons, the complaint may be dismissed with costs.
On filing written version by the opposite party, the complainant no.2 has filed rejoinder -cum -affidavit on 30/03/2001. The complainant no2 -Rita Barretto has filed affidavit of evidence. In support of claims, written agreement of flat no.8 and agreement of flat no.4, payment of receipts, letters dated 07/05/1996, 02/09/1997, 30/01/1998, 25/05/1998, 09/07/1998, copy of notice dated 25/12/1998 issued to the opposite party have been placed on record. Certificate from LilavatiHospital is also filed to show kidney failure of the complainant no.1 and regular continuous dialysis.


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