Petition of OP is seen the previous order dated 20.10.16, 26.10.16, 02.11.16, 09.11.16 is seen . case has already been fixed for judgment on this day i.e. on 16.11.2016 accordance with direction of honorable state forum as such this petition of Op is considered and rejected exparte judgment is followed:-
The complainant’s case in brief is that he is a patient of chronic stomach cancer since September, 2008, and he has been treated by Tata Memorial Hospital, Mumbai for a long time. The OP no.1 is a land owner cum developer, while the Proforma OP No.2 is the bank. Initially there was an oral agreement between the complainant, and the OP No.1 for purchase of the flat as mentioned in schedule ‘B’ to the petition of complaint @ Rs.800/- per Sq. Ft., and a written agreement was executed between the parties on 10.03.2008. The written agreement was drawn up showing the floor measurement as 850 Sq. Ft. super built up area. At the time of the said written agreement, the complainant paid Rs.1,49,000/- as advance to the OP. the complainant applied for home loan to the Proforma OP No.2, and a sum of Rs.6,51,000/- was sanctioned as home loan for purchase of the flat. The complainant claims that he had paid the entire consideration money to the OP, and the complainant alleges that the OP has illegally taken an excess amount of Rs.96,381/- from him keeping him in the dark. In September, 2009, the OP delivered possession of the flat to the complainant, but no sale deed was executed, and registered by the OP in favour of the complainant despite repeated tagid by the complainant. The Proforma OP has issued a letter to the complainant for depositing title deed of the ‘B’ schedule flat which was mortgaged with the bank as security for the loan taken by the complainant. The complainant claims that he is legally entitled to get registration of the flat from the OP, and that the cause of action in this case is a continuing one, since the possession of the flat was not given to him within the time as specified in the agreement dated 10.03.2008, and the registration of the flat has not been completed till today. The complainant accordingly filed this case praying that the OP No.1 be directed to execute, and register the deed in his favour, and he prays for some other reliefs as well.
Complainant has filed the following documents :-
- Photocopy of the Discharge Summary issued by the Tata Memorial Hospital, Mumbai in favour of the complainant along with the Bio-Chemistry Test Report.
- Photocopy of Agreement for Sale of flat executed in between complainant and OP No.1 dated 10th day of March, 2008.
- Photocopy of loan sanction letter issued by the Proforma OP to the complainant dated 22nd May, 2008.
- Photocopy of loan disbursement letter issued by the Proforma OP dated 22.05.2014.
- Photocopy of money receipts (7 Nos.) issued by Sharda Enclave to the complainant.
- Photocopy of the letter dated 11.05.2012 issued by the complainant to the OP No.1.
- Photocopy of the letter dated 25.07.2012 issued by the complainant to the OP No.1.
- Photocopy of the letter dated 17.09.2012 issued by the complainant to the OP No.1.
- Photocopy of the letter dated 16.03.2013 issued by the Proforma OP to the complainant and the OP No.1.
10. Photocopy of the letter dated 22.03.2013issued by the OP no.1 to
the complainant and the Proforma OP.
11. Photocopy of the lawyer’s letter dated 16.04.2013 to the OP No.1 and the Proforma OP.
12. Photocopy of the reply by the OP No.1 dated 29.04.2013 against the letter dated 16.04.2013 of ld advocate Sri Rajat Das and some other documents.
Complainant has field evidence-in-chief.
Complainant has filed written notes of argument.
Points for determination
1. Is there any deficiency in service on the part of the OPs ?
2. Is the complainant entitled to get any relief as prayed for ?
Decision with reason.
This case has been heard exparte as per order dated 20.10.2016, 26.10.2016, 02.11.2016 & 09.11.2016 read with the order of the Hon’ble State Commission directing this Forum to dispose of the case by a speaking order. Accordingly, today is fixed for exparte judgement reasons has been reflected in the order sheet on 20.10.2016.
It appears from the original documents filed by the complainant that the agreement was done between the complainant and the OP. The
case made out by the complainant in the complaint, examination-in-chief and documents filed by the complainant in original on 26.10.2016 which support the complainant’s case that complainant purchased the flat and got delivered the flat and complainant paid the price agreed for and it also appears that in spite of fixing date the OP did not register the sale deed in favour of the complainant. It is also appears that the OP took Rs.96,318/- from the complainant. There is nothing in the record to discard this statement of complainant and the contents of those documents filed by the complainant which goes unchallenged. These unchallenged testimonials in the record convince us to hold that complainant has succeeded to establish his case as per complaint.
In the result, the case succeeds.
Hence, it is
O R D E R E D
that the Consumer Case No.67/S/2014 is allowed exparte against the OP No.1 with cost.
The complainant is entitled to get the relief sought for in the prayer of the complaint mainly 19 (a), (b), (c), (d) and another sum of Rs.25,000/- as cost of litigation.
The OP No.1 is directed to execute and register the necessary Sale Deed of the ‘B’ Scheduled flat in favour of the complainant within 45 days from the date of this order.
The OP No.1 is also directed return back a sum of Rs.96,318/- by issuing an account payee cheque in the name of the complainant within 45 days from the date of this order.
The OP No.1 is further directed to supply/provide the occupancy/ completion certificate of the building to the complainant within 45 days from the date of this order.
The OP No.1 is further directed to pay a sum of Rs.1,00,000/- by issuing an account payee cheque in the name of the complainant for mental pain, agony and harassment within 45 days from the date of this order.
The OP No.1 is further directed to pay a sum of Rs.25,000/- by issuing an account payee cheque in the name of the complainant for litigation cost within 45 days from the date of this order.
Failing which the amount will carry further interest @ 9% per annum on the awarded sum of Rs.1,96,318/- from the date of this order till full realization.
In case of default, the complainant is at liberty to execute this order through this Forum as per law.
Let copies of this judgment be supplied to the parties free of cost.
