J U D G M E N T

(Per Shri. Sanjay Chodankar, President)

By this Judgment and order we shall dispose off the Complaint dated 14/12/2007 filed by the Complainants and which was admitted by this Forum against the Opposite Party’s herein under section 12 of the Consumer Protection Act, 1986.

The brief facts of the case are as follows:-

1. The Complainant no. 1 is a businessman and the Complainant No. 2 is his wife.

2. Opposite Party. No. 1 is an incorporated company with late Ashley D’Souza and the Opposite Party No. 2 as Directors of the said company. The said company has undertaken construction of residential project in landed property bearing survey No. 185/1 at Naikawaddo Calangute, Bardez – Goa.

3. Opposite Party No. 2, 3 & 4 are the legal heirs of Ashley D’Souza. The Opposite Party No. 5 with Directors being Opposite Party No. 6 and 7 have been assigned the rights and obligations of the Ashley Developers and they function at the site work at “Ashley Classic” Naikawaddo, Calangute Bardez Goa.

4. On 01/10/1995 the Complainant’s entered into an agreement with Opposite Party No.1 to purchase flat bearing No. 201 on the second floor in ‘B’ block (Bldg) admeasuring 644 square feet, for total consideration of Rs. 6,08,580/-. The said consideration was payable in installments directly related to the work completed at the respective building.

5. The Opposite Party No. 1 has undertaken to complete the flat and the project with all amenities and facilities by 31/03/1997 as per the agreement dated 01/10/1995.

6. The Complainant’s thereof after identified the Opposite Party No. 5, 6 and 7 and after knowing about his status to fulfill the obligations as per the agreement dated 01/10/1995 between Complainant’s and Opposite Party No. 1 to 4, memo of understanding had been drawn on 14/04/2004 between Complainant’s and Opposite Party No. 5 & 7.

7. The Opposite Party No. 5 to 7 had agreed to complete the said above project and the said flat No. 201 in block ‘B’ as per the memorandum of understanding dated 14/04/2004.

8. As the said flat had not completed by the Opposite Party’s on 03/05/2006 the Complainant’s served a legal notice to Opposite Party’s calling upon them to fulfill the terms of the said memorandum of understanding, and hand over the possession of the said flat to Complainant’s.

9.  The Opposite Party’s failed to complete the said project and handover the possession of the said flat to the Complainant’s.

10. The points that arise for consideration are :-

1. Whether there is any deficiency in service on the part of the Opposite Party’s.?
2. To what relief the Complainant’s is entitled to ?

11. The Complainant’s has filed their affidavit in evidence and had relied on the documents mentioned above inter-alia reiterating their stand taken in the Complaint and written arguments. The matter was also orally argued by the Learned Advocate R. Ambekar for the Complainant’s and Learned Advocate R. Kantak for Opposite Party No. 5 -7.

12. On going through the records, we now proceed to record our findings on the merits of the case. We find that the Opposite Party’s had agreed to deliver the said flat to the Complainant’s within a period of 2 years from the date of agreement dated 01/10/1995, but Opposite Party’s has failed to keep the promise and the same is not handed over to the Complainant’s, inspite of Memorandum of understanding dated 14/04/2004 and the extension given by the Complainant’s to deliver the possession of the said flat.

13. It has also come in the evidence that the said flat was booked on 01/10/1995 and the memorandum of understanding was signed on 14/04/2004 which is very much clear that the said flat was not ready for possession till 14/04/2004. The Opposite Party’s inspite of various communication by the Complainant’s to them and their assurances has miserably failed to deliver the said flat to the Complainant’s as promised by them.

14. The Opposite Party’s adopted an unfair attitude and attempted to make wrongful gains for themselves at the cost of occasioning great loss to the Complainant’s.

15. In view of the sorry state of affairs Complainant’s had suffered great loss and has been put to unnecessary expenditure entirely on account of the fault, Complete lack of co-ordination, co-operation, negligence and gross deficiency in service by the Opposite Party’s. The Opposite Party’s entire conduct in the matter so far has been totally unethical, unprofessional, highly casual and unconcerned and regardless of complaints.

16. It is crystal clear that after collecting the said amount by the Opposite Party’s, the Opposite Party’s has no intentions of completing and handing over the said flat to the Complainant’s and therefore for the inconvenience, financial loss and mental agony suffered by the Complainant’s the Complainant’s to be compensated with compensation keeping in mind the Complainant’s are senior citizens of this country.

17. It is pertinent to make a mention that food, clothing and shelter are 3 basic needs of the humankind. The above mentioned basic needs are protected under the Constitution of India.

18. After minutely considering the Complaint, evidence , documents, written and oral arguments advanced by the Ld. Advocates, we are of the considered opinion that there is indeed a deficiency in service on the part of the Opposite Party’s which has caused great inconvenience, financial loss and mental agony to the Complainant’s and accordingly we pass the following:-

O R D E R

The Complaint is allowed with following reliefs:-

1. The Opposite Party’s are ordered and directed to hand over the said flat free vacant and completed possession of the flat, bearing No. 201, 2^nd Floor, Block B, Ashley Classic at Calangute with area of 644 square feet super built up with amenities like Tennis court, Gymnasium, backup Generator and Swimming pool.

2. The Opposite Party’s are ordered and directed to pay an amount of Rs. 5,00,000/- as a compensation for the delay, for harassment mental agony, pains , loss of enjoyment due to ill health.

3. The Opposite Party’s are also directed to pay Rs. 25,000/- to the Complainant’s towards the cost of the present litigation. In case the said amounts are not paid after the appeal period, the same will carry interest @ 12%p.a. till final payment.

Pronounced in open court. Proceedings closed.