Per HON’BLE PRESIDENT MRS. S. S. MHATRE

1. The case in brief  is that the Complainant had booked a Flat No 202/ A Wing (665 Sq Ft Super Built area)  in Leelavati Apartments  Sector 27 , Nerul , Navi Mumbai 400706 with Opposite Party  in the year 2003  . For which the total consideration  amount fixed  was Rs. 6,31,750/-  on 6^th November 2003 . Complainant and Opposite Party  entered into and executed the a agreement for sale which was  registered  on 6^th Nov 2003  with the Sub Registrar  of assurances Thane – 6 . The Complainant has paid the entire  consideration amount  plus amount for escalated cost  for the same to the Opposite Party No 1.
2. Opposite Party had promised to give possession of the flat in to the Complainant  in May 2005 , but till date not handed over  the possession to the Complainant  in spite of frequent requests and  sending the legal notice to the  Opposite Party . Hence  the Complainant has filed this Complaint The notice had been issued by the forum for the appearance of the Opposite Party , which was  duly served on the Opposite Party ; The Complainant has filed the postal acknowledgement  in proof of service of the notice to the Opposite Party , still they were absent for the  hearing , hence Ex Parte order was  passed against the Opposite Party
3. On perusal of the document s filed by the Complainant following issues are framed  : -

A) whether the Opposite Party  is responsible for deficient  service  towards the Complainant ? Yes

B)   Whether the Opposite Party is liable to compensate the Complainant  for the loss caused to the Complainant ?       Yes

C)   What order ?                         As per the final Order.

Reasons

4. The Complainant had booked a Flat No 202/ A Wing (665 Sq Ft Super Built area)  in Lilavati Apartments  Sector 27 , Nerul , Navi Mumbai 400706 with Opposite Party  in the year 2003  . For which the total consideration  amount fixed  was Rs. 6,31,750/-.  Out of that,  on 06/01/2003, the  Complainant paid Rs. 50,000/- by Cheques  No 373432  and on 05/12/2003  by Cheques No 143424 Rs. 80,000/-  both drawn on  HDFC Bank  Baroda, to the Opposite Party  for which  Opposite Party  had issued the receipts  which are available in record on Exhibit 3/B and 3/B1  in the said Complaint . Thereafter  Complainant had approached  his banker  ICICI Home Loan  Finance  Co Ltd. Vashi and through  the loan application No 777154587 LAN LBNMU 00000623365 and got sanctioned  loan of Rs 5,00,000/- and as stated by the Complainant in Complaint with total  amount paid earlier  by cheques / cash etc   Complainant paid to Opposite Party No 1  , a total  sum of Rs 6,71,933/-  till 30/11/2005 along with  escalated cost  as demanded  by Opposite Party No 1  from time to time
5. As per agreement  to sale  Clause No 13 –  Opposite Party No 1  had promised  to give possession  of the said flat  in May 2005  but on 03/07/2007  Opposite Party No 1 through  Opposite Party No 2 (Director of Opposite Party No 1)  sent  a letter  to the Complainant  (Exhibit No  3/D )  apologising to the Complainant  for the delay in  giving the possession  of the said  Flat  and offered  to  refund the  amount  paid by the Complainant  to the Opposite Party  for sale of the  said flat  and asked the Complainant to sale the flat back to Opposite Party  again
6. On 15/05/2012 Complainant again sent legal notice  to  Opposite Party  and asked for   possession  of the said Flat  within  one month from the date of receipt of the notice , which was duly received  by the Opposite Party but the Opposite Party still have not handed over the possession  of the said  flat to Complainant  and Complainant is regularly paying the EMI  of Rs 4460/- to the aforesaid ICICI Bank . Thus the Complainant has suffered  a monetary loss  and in spite  of the huge amount for consideration  of the said flat  Opposite Party are  avoiding to give the possession of the said Flat  under one or another pretext  which is deficiency in service  rendered by Opposite Parties to the Complainant . The cause of Action  is aroused  within the Jurisdiction  of the forum as the office of the Opposite Party  (Nerul) is  within Territorial Jurisdiction of the forum . Opposite Party has not handed over the possession  of the flat to the Complainant  till date , hence there is  a continuous  cause of Action  and so the case is within the limitation period .
7. The Complainant is still paying the EMI  to ICICI bank  as stated by the Complainant  in his Complaint  and evidence  and  in spite  of payment  of huge amount   (Rs. 6,71,933/-  )  to Opposite Party  for purchasing the  aforesaid flat  No 202 in Lilavati Apartments  the Complainant is  denied the possession of the flat  till this date  which has  given tremendous   mental torture  to the Complainant  as  well as  he had to bear the  legal charges   for filing  this Complaint  before the forum , by appointing an advocate  for the same,   and Complainant has lost  time, money and energy  for  the last  11 years  for making efforts  to obtain the possession   of the aforesaid flat  behind the  Opposite Party , hence  Complainant is  liable for compensation  of Rs. 1,00,000/-  for mental torture  and for legal charges Rs 20,000/-  from Opposite Party No 1  of which the Complainant is consumer. 
8. The Complainant is consumer of  GTK Construction  Pvt Ltd. i.e. Opposite Party No 1 and Opposite Party no 2 is one of the Director who is Managing all the affairs of the company. All the correspondence of the  Company Opposite Party No 1 is done through Opposite Party No 2  and

Opposite Party No 2 has signed the  receipts  for the considerations  amount paid by the Complainant  to the Opposite Party No 1 . Hence for giving the possession  of the said flat  along with Opposite Party No 1 , role of Opposite Party No 2  is also  equally  important . Hence , Opposite Party No 1  and No 2  both are  directed to  give possession  of the said Flat No 202/ A Wing (665 Sq Ft Super Built area)  in Lilavati Apartments  Sector 27 , Nerul , Navi Mumbai 400706  to the Complainant  within TWO Months  from the outward date of this order, by the complying  all requisite  legal formalities  as per MOFA Act

9. As far as demand  for copy of  OC / CC  is concerned  when the Complainant will get the possession  of the said flat  from Opposite Party; he can  follow up  with the Opposite Party  for the same .

Final Order

1. Complaint No Complaint 207 /2012 is  partly allowed  against Opposite Parties
2. Opposite Party  No 1 and Opposite Party No 2  are directed to  comply requisite  legal formalities as per MOFA ACT   for giving  possession  of the said  flat to the Complainant within TWO months  from the outward date of this order 
3. Opposite Party No 1 is directed to pay Rs. 1,00,000/- (Rs. ONE LAKH only ) to Complainant as compensation  for mental torture  and Rs. 20,000/- as legal charges  to the Complainant  within TWO months  from the outward date of this order
4. Certified copies of the order to be sent to both Complainant and Opposite Party No 1 and No 2  free of cost .

Place – Kokan Bhavan, Navi Mumbai.

Date –   17/11/2014