For Complainant : Advocate Dnyanaraj Sant For Opponents : Advocate Deshmukh ************************************************************ Per : MEMBER, Smt. Sujata Patankar //JUDGMENT// The facts giving rise to the complaint briefly stated are as follows :- It is the case of the Complainant that the Complainant entered into an agreement duly registered in the office of Sub Registrar Pune vide Sr.No. 5023/2005 with the Opponents for the consideration of Rs.3,00,000/- for flat No.11, Dhanori, situated on P+2 floor in a building constructed by the Opponents on the land situated at 82, Hissa No. 2/2, Plot No.7 to 11 and 19/37, Mouje Dhanori Tal. Haveli, Dist. Pune with many luxurious amenities and other several additional facilities. It is further contended that Dewan Housing Finance Corporation, Pune sanctioned loan amount of Rs.2,35,000/- to the Complainant. Out of which the Complainant paid the booking amount of Rs.85,350/- and raised loan amounting to Rs.1,50,000/- from Dewan Housing Finance Corporation, Pune. It is further contended that as per the agreement para No. 6.6, the Opponents would deliver the possession of the said flat within 14 months from the agreement. It is the case of the Complainant that yet he has not get the possession of the flat. It is also further stated that the Complainant is paying the EMI of Rs. 1,553/- to Dewan Housing Finance Corporation, Pune. It is also further submitted that the Complainant is residing on rent. The Complainant visited to the Opponent’s office and requested him to complete the construction of the building of the said flat but the Opponents always avoid the matter. According to the Complainant, till yet 15% work of the building as well as the flat is pending as per the agreement. On 2/6/2007, the Complainant asked the Opponents to complete the construction work and handover the possession of the flat. But the Opponents asked the Complainant to cancel the agreement and to do the new agreement with the consideration of Rs. 6,00,000/- inspite of Rs.3,00,000/- and also told that if the Complainant failed to comply the demand of the Opponents, then the Opponents would sell such flat to third person. Because of this, the Complainant shocked. According to the Complainant, there is no hope of the possession of the flat and it is binding on the Complainant to pay Rs.1,553/- to deposit the monthly installment to Dewan Housing Finance Corporation, Pune. As the Opponents is not completed the construction of the building, the Dewan Housing Finance Corporation is not ready to give the final part of the installment out of the sanctioned loan to the Opponents. Thus it is the case of the Complainant that the Complainant causes so much mental harassment and inconvenience because of the Opponent’s deficiency in service. On all these grounds and as stated in the complaint application, the Complainant has prayed to order the Opponents to complete the construction of the flat and to take necessary steps for giving the possession of the flat by complying all legal formalities and to issue the necessary copies of allotment letter possession letter and all other required document to the Complainant as also order to pay Rs.25,000/- for the loss occurred due to the Opponent’s deficiency in service, Rs.10,000/- for the mental harassment and inconvenience, Rs.10,000/- for the cost of such proceedings, total amounting to Rs.45,000/- etc. The complaint application itself is supported with the affidavit of the Complainant. Alongwith the complaint application, the Complainant has filed relevant documents, such as agreement dtd. 08/06/2005 in support of his contentions. [2] In pursuance of the notice of appearance issued by this Forum, the Opponent Nos.1 and 2 appeared and filed its written statement and has denied the complaint. It is also stated the complaint suffers from the defect of non-joinder of necessary parties. However it is admitted that the Complainant executed an agreement and the same was duly registered on 08/6/2005 at Sr.No.4465/05. It is further submitted that the Opponents repeatedly called upon the Complainant to abide by the payment schedule. It is admitted that it is received only an amount of Rs.1,50,000/- from M/s. Dewan Housing Finance Company. Apart from this amount no further amounts, leave alone an amount of Rs.85,350/- was received by the Opponents. The averment of the Complainant that the Opponents assured to hand over possession within 14 month of date of agreement is only half the truth. The Complainant was entitled if at all of the possession only upon passing consideration in favour of the Opponents and not otherwise. The Complainant failed to pass consideration and cannot be permitted to take advantage of his own wrongs. The Opponents have also denied the demand of Rs.6,00,000/-. On all these grounds and as stated specifically in written statement, the Opponent No. 1 has denied the deficiency in service and has also prayed for dismissing the complaint alongwith the exemplary costs etc.. The written statement is supported with the affidavit of Mr. Prabhakar Pandurang Bhosale and Mrs. Vandana Prabhakar Bhosale. The Opponents also filed list of documents. [3] The Opponent No.3 is duly served with the Public Notice published in newspaper “Pudhari” dtd. 22/12/2010. However the Opponent No.3 chose to remain absent. Therefore, this Forum passed ex-parte order against the Opponent No.3 on 27/04/2011. [4] The Complainant filed rejoinder alongwith affidavit. We have gone through the contents of the rejoinder-affidavit. The Complainant as well as the Opponents Nos. 1 and 2 have filed written notes of arguments as also advanced oral submissions before the Forum. We have gone through the entire proceedings, pleadings, evidence, arguments produced on the record in the complaint proceedings. [5] On perusal of the entire proceedings, the following points arouse for our consideration. Points Answers 1. Whether the Opponents rendered deficiency in service to the Complainant? … Yes. 2. What order ? … As per final order. REASONS :- [6] By virtue of agreement produced on the record (Exh.1/4), it is crystal clear that the Complainant has entered into an agreement with the Opponent dtd. 8/6/2005 for the flat No. 11, adm. about 44.60 sq.mtrs. (480 sq.fts) super built up area on P+2 floor of Building A for consideration of Rs.3,00,000/-. Hence it is undisputed fact that the Complainant is a consumer of the Opponents. [7] It is evident on perusal of the record that the Complainant has placed on the record appeal order dtd . 03/05/2010 in First Appeal No. 53/2010 passed by the Consumer Disputes Redressal Commission, Maharashtra State, Mumbai in the matter of Mr. Vijay Pundalik Gangurde V/s. Sankalp Constructions. After going through the aforesaid judgment, the Hon’ble State Commission had come to the conlusions, more specifically mentioned as follows :- “The facts till 20/02/2007as enumerated above are admitted. It appears that dispute started between the parties on the said date when the respondent demanded remaining amount of Rs.1,35,000/- and the Complainant submitted that there are deficiencies and intimated those deficiencies in writing to the4 respondent and till then there was no dispute between the parties. Even the payment which was made through bank was accepted by the respondents. Therefore, basically respondents are supposed to get occupation certificate so as to give delivery of possession of the flat by 20/02/2007 or thereafter. Therefore we wanted to know from the respondent whether on 20/02/2007 when he orally demanded balance amount from appellant so as to deliver possession of flat to appellant, as to whether the respondent is possessed of occupation certificate and completion certificate or not. This information is not coming forward. It is well settled position that flats cannot be occupied unless local authorities give occupation certificate. However, in number of cases coming before State Commission, we have noted that number of builders in the State Of Maharashtra have handed over the possession of the flat without getting Occupation Certificate and Completion Certificate. This they do only in order to get extra F.S.I. which is likely to be availed by future modification of rules and regulations of local authorities. The purchaser cannot be put into possession of the property and property cannot be said to be ready for delivery of possession unless the occupation certificate is obtained. These are the provisions of MOFA but these are usually ignored by the builders as we have observed in number of cases coming before us. Let the fact as it is. Since such information is not coming forward we can safely conclude that the respondents had not obtained occupation certificate and completion certificate so as to deliver the possession of the flat. This is important for our purposes because unless respondents possessed of occupation certificate, respondents cannot demand the remaining amount from the Complainant/Appellant. As per the conclusion of the Hon’ble State Commission, in the present case also we are bound to compel. In this case also, the Opponents came with the case of termination of agreement and therefore, we came to the conclusion as per the finding of the Hon’ble State Commission in the abovementioned case. Mere sending notice to the flat purchaser by the builder would not be treated as termination of the agreement. In this case, the Opponents filed xerox copy of the envelope sent by the Opponents to the Complainant which is returned unserved with the postal remarks “Not Known”. Therefore, the Complainant came with the case that the notice was not received by the Complainant. [8] The agreement entered into the Complainant and the Opponents executed on 8/6/2005 and the Complainant made the payment of the amount of Rs.1,50,000/- to the Opponents, these facts are undoubtedly admitted by the Opponents in its written statement. On 28/7/2011, this Forum by separate order allowed the production of the documents filed by the Complainant. After going through the receipts dtd.12/2/2005, it is evident that the Complainant paid the amount of Rs.20,350/- and Rs.65,000/- to the Opponents. In the present case, the Opponents received more than 60% amount from the Complainant out of total consideration. As per the term 6.6 of the agreement, it is obligatory on the part of the Opponents to deliver the possession of the flat within 14 months from the date of the agreement i.e. 8/6/2005. Out of total consideration of Rs.3,00,000/-, the Complainant has paid an amount of Rs.2,35,350/- to the Opponents. But still the Opponents till today could not deliver the possession of the disputed flat. It amounts to deficiency in service on the part of the Opponents, for which the Complainant is entitled for reasonable compensation and costs. [9] The Complainant has to come before the Forum for reliefs sought in the complaint application due to deficiency in service and for this he has to sustain cost for the present proceedings. Hence he is liable to recover the amount of Rs.3,000/- by way of the cost of the present proceedings. As per the agreement dtd.8/6/2005, the Complainant paid the substantial total amount of Rs.2,35,350/- to the Opponents. Since then till today the Opponents did not deliver the possession of the flat. Therefore, the Complainant is entitled to recover the amount of Rs.Rs.5,000/- for compensation from the Opponents. Rest of the claims of the Complainant are rejected in the absence of appropriate documentary evidence. It is the settled position that while demanding certain reliefs from the court, the aggrieved party should come with cogent evidence in support of their contentions. Mere demands without any supportive record are ineffective. [10] The Complainant had made party to Lokshahir Annabhau Sathe Maryadit Society as the Opponent No.3 . As also, in the written notes of arguments the Opponents Nos. 1 and 2 have made contention that there is non-joinder of necessary party of Trinity Town Development & Finance Private Limited. In this context, it is true that Lokshahir Annabhau Sathe Maryadit Society & Trinity Town Development & Finance Private Limited are parties to the agreement dtd. 8/6/2005. However it is pertinent to note that the receipts produced by the Complainant are issued by the Opponents Nos. 1 and 2 only. In addition to that there are no allegations made by the Complainant as against them in the entire complaint proceedings. As also, we found no grievance against them as well no deficiency in service. In the written notes of the arguments of the Complainant it is mentioned that the Opponents Nos. 1 and 2 have failed to perform their part of the legal obligation in view of the registered agreement and therefore, M/s. Trinity Town Development And Finance Private Ltd. is not at all a necessary party to the present complaint. Therefore we opined that no orders would be passed against the Opponent No.3. [11] With the aforesaid discussions, it is crystal clear that the total consideration for the said flat is Rs.3,00,000/-, out of which, the Complainant had paid the amount of Rs. 2,35,350/- , which fact is clear by virtue of receipts produced on the record. Moreover, the Complainant has shown his willingness to pay the remaining amount i.e. Rs.64,650/-. Therefore in our opinion, by directing the Complainant to make the payment of Rs.64,650/- to the Opponents would meet the ends of justice. With this backdrop, we proceed to pass the following order :- // ORDER // (i) The complaint is partly allowed. (ii) The Complainant is directed to pay Rs.64,650/- to the Opponents within a period of (30) days from the date of receipt of this order. (iii) After receipt of the amount from the Complainant, the Opponents are directed to complete the construction of the flat and handover the vacant and peaceful possession of the flat bearing No. No.11, Dhanori, situated on P + 2 floor in building constructed by the Opponents on the land situated at 82, Hissa No. 2/2, Plot No.7 to 11 and 19/37, Mouje Dhanori Tal. Haveli, Dist. Pune within a period of (30) days from the date of receipt of the payment by the Complainant. . (iv) The Opponents are also hereby directed to comply as per prayer clause 10 (a) of the complaint application within the period of 30 days from the date of receipt of this payment. (v) The Opponents are also hereby directed to pay to the Complainant an amount of Rs.5,000/- towards compensation and Rs.3,000/- towards cost of the complaint proceedings, within a period of (30) days from the date of receipt of this order, failing which, the Complainant would entitled for filing appropriate proceedings under the provisions of Consumer Provisions of the Consumer Protection Act, 1986 (vi) No orders as against the Opponent No.3. (vii) Certified copies of this order be supplied to both the parties free of costs. (Smt. Sujata Patankar) (Smt. Pranali Sawant) MEMEBR PRESIDE NT ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PUNE. Place : Pune Date : 04/08/2011
| | [ Smt. Sujata Patankar] MEMBER[ Smt. Pranali Sawant] PRESIDENT | | 
