Per HON'ABLE MR. TRYAMBAK A THOOL , MEMBER.
1 The case in brief is that the complainant had booked shops in the names of his relatives and his company in the year 2003. Opposite party issued common allotment letter dated 10th September 2003 wherein it is stated by the Opposite Party that the possession of the shops shall be given on or before June 2004 and on failure to do so, double the amount invested by the purchaser shall be returned to the purchaser on demand.
2 The opposite party failed to give the possession in June 2004. The Opposite Party asked the complainant to pay the amount of Rs. 78,000/- to the opposite party number 2 , towards the payment to be made to the MSED \ CIDCO development charges, Society charges, water charges etc. which were not mentioned in the agreement .
3 The Opposite Party had given the possession of shops in 2010 after long persuasion by the complainant and by taking signatures on the paper indicating that the possession has been given to the complainant.
4 When the complainant went to take the physical possession of the shops he found that the shops had already been given on rent by Opposite Party to third parties who where in the possession of said shops and having their goods stored in those premises. After further persuasion the opposite party gave the physical possession of the shops to the Complainant . But in the month of June 2011 , during the rainy season it was found that the shops were heavily leaking and had faulty electrical connections giving shocks to the persons using the premises. On enquiry it came to the knowledge of the complainant that the faulty electrical connections had been caused because MSED had cut down the electrical connections as the opposite party had not paid the charges for electricity used.
5 The complainant had filed this complaint in the forum to get the compensation for loss caused to the complainant as he was not given the position on the time and the opposite party had used those shops for his own benefit by giving those shops on rent to third parties. The complainant had also requested for other compensation for mental agony and litigation charges.
6 The notice had been issued by the forum for appearance of the opposite party in the said case however even after the receipt of the notice the opposite party failed to appear for the hearing. The complainant applied to the forum for getting the ex parte order against the opposite party which was granted. Neither the opposite party themselves nor their advocates or representatives appeared for the hearing nor did they submit reply or explanation in this case.
7 After going through all the documents submitted by the complainant the following questions arose for consideration by forum while deciding this case.
a) Whether the complainant is the consumer of opposite party Yes.
b) Whether the opposite party is liable to compensate the complainant for the loss caused the complainant Yes
c) What order? As per the final order.
Reasons
8 The complainant had booked the shops offered by the opposite party by paying the full down payment as per the opposite party’s demand and has submitted the proof of payment by presenting we receipts for the payment. The opposite party was to give the possession of shops booked by the complainant against the payment made by him. This clearly shows that the complainant is the consumer of opposite party.
9 The complainant had requested for refund of the amount paid by him to Opposite Party for payment to be made against various charges mentioned above. The complainant had claimed that the Opposite Party had collected this money illegally. However on the perusal of the agreement and other documents it appears that the complainant had to pay these charges in addition to the amount he had paid as price for purchase of the shop. The amount collected by the opposite party in accordance with the agreement terms cannot be considered as the amount illegally collected and therefore cannot be refunded to the complainant.
9 The Opposite Party did not give possession of the shops at the promised time and in fact gave the position after about six years from the promised time. According to the letter of Opposite Party submitted by complainant the opposite party had promised that opposite party shall pay double the amount invested by the complainant if the possession is not given in June 2004 . However it appears from the documents submitted by the complainant that the complainant had not pursued this claim for getting the double amount of his investment during the period when the opposite party had not given the position and when the complainant was pursuing the matter for getting the possession. It therefore seems logical that the complainant cannot claim for double the amount of his investment now .
10 The Opposite Party instead of giving the possession of the shops to the Complainant , had rented out those shops to third parties and was earning the rental income. Had the position been given to the complainant the complainant would have earned that rental income. This is the loss to the complainant and the opposite party is liable to compensate for the same.
11 Non-receiving the possession of the shops has definitely caused mental agony to the complainant and also had to file this case giving rise to litigation charges which also needs to be compensated by the opposite party.
12 After considering all the documents submitted by the complainant and the oral arguments made by the advocate of the complainant the forum passes the following order.
Order.
- The complaint number 189\2012 is partially allowed.
- The opposite party shall pay to the complainant the amount of Rs. 20,000/- (Rs. Twenty Thousand Only ) for the compensation of the loss occurred to the complainant for repairs of the premises.
- The opposite party shall pay to the complainant the amount of Rs. 20,000/-(Rs. Twenty Thousand Only) towards the mental agony.
- The opposite party shall pay to the complainant the sum of Rs. 10,000/- towards litigation charges.
- The opposite party severally and jointly shall comply with this order within 45 days from the date of outward of this order
- The copies of this order shall be given to the concerned parties free of cost.
Place – Kokan Bhavan, Navi Mumbai.
Date – 20/11/2014
