PER SHRI. S.S.PATIL - HON’BLE  MEMBER :

1)        This is the complaint regarding deficiency in service on the part of Opposite Party as it did not give the possession of the residential tenement inspite of taking the consideration as per rules.  The facts of the case as stated by the Complainant are that the Complainant has purchased a residential tenement in Kharghar Gharkul Yojana.  However, the Opposite Party did not hand over the possession in habitable condition.  The Opposite Party has offered self contained mini housing project with all basic amenities as per its brochure.

2)        The Opposite Party accepted the Complainant’s application No.3813 dtd.07/11/2000 for allotment of a residential flat and allotted tenement No.C-1810-3 in Sector 15 in Kharghar Gharkul Yojna, the area of the flat admeasuring 40.97 sq.m. for total consideration of Rs.3,52,672/-.  The Complainant paid full consideration.  However, the Opposite Party vide its letter dtd.05/11/2001 escalated power supply network development charges from Rs.300/- per sq.m. to 350 Rs. per sq. ms.  The Complainant paid the same on 16/01/2002 (Rs.16,203) in a bid to get possession.

3)        Thereafter, the Opposite Party vide its letter dtd.20/12/2001 called upon the Complainant to take possession. Agreement for sell was executed on 23/01/02. Clause 5 of the Agreement states that possession of the flat shall be delivered to the purchaser on date of execution of this agreement. The Complainant paid stamp duty and registered the said agreement on 10/05/02. Accordingly, the Opposite Party was supposed to handover the tenement to the Complainant.  But the construction of the said tenement was incomplete. The Opposite Party has failed to handover proper possession.

4)        The flat was not in condition to reside.  It is incomplete.  The caretaker of the Opposite Party asked the Complainant to give complaint.  Accordingly, the Complainant gave complaint.  The Complainant has stated that the following were the defects in the said tenement.

            a)  There were cracks developed in the walls.

            b)  Lock of sliding door in the hall was loose & the handles were rusted.

            c)  Window frames were in unfinished conditions & material used was of sub

                 quality.

            d)  Flooring was uneven (not leveled) Tiles were broken.

            e)  Bathroom tiles were broken & workmanship was poor.

            g)  Electric board was not properly fixed.

            h) Tube lights & bulbs were not fitted.

            The Complainant vide her letter dtd.31/05/2002, called upon the Opposite Party to rectify the above defects in the tenement but in vain.

5)        The Complainant has further stated that she again & again reminded the Opposite Party to rectify the above defects.  Finally she sent a legal notice to the Opposite Party.  Then the Opposite Party vide its letter dtd.01/07/03 called upon the Complainant to inspect the premises, but there was still incomplete work so she brought it to the notice of the Opposite Party vide her letter dtd.08/07/03. 

6)        The Complainant has further stated that, though no possession was given to the Complainant the Swapnadeep Co.Op. Hsg. Society demanded, maintenance charges amounting to Rs.3,400/-.

7)        Finally the Complainant has prayed that the Opposite Party be directed

a)  To rectify the defects in the said flat pointed out in para 4 above. 

            b)  To hand over the possession of the flat duly completed in all respect

                 alongwith occupancy certificate.

                                                                  or     

            c)  To reimburse the excess charges towards power supply network

                development charges collected by the Opposite Party in excess with interest.

            d)  To pay Rs.50,000/- compensation for anxiety.

            e)  To pay Rs.20,000/- as cost.

8)        The Complainant has annexed the xerox copies of the following documents in support of his complaint –

            a)  Photograph of a building ????? ????? ?????? 1, ?????, ??? ?????–21   ????? ??????? ?????? (Broucher).

            b)  Allotment letter dtd.07/11/2000, Receipts of payment, Letter dtd.16/01/02,

                Allotment letter dtd.20/12/01, Agreement of Sale, Receipt dtd.10/05/02,

                Letter dtd.29/05/03, Letter dtd.01/07/03, Letter dtd.06/07/03, Letter

                dtd.05/06/03.

9)        The complaint was admitted and notice was served on the Opposite Party.  Opposite Party filed its reply wherein it is admitted that the Complainant had applied for a flat in Gharkul Mass Housing Scheme and Opposite Party had issued allotment letter in respect of Flat No.C/18, 03 in the year 2002.  However, the Complainant has not taken physical possession of the said flat and made certain complaints.  The Opposite Party rectified the defects pointed out by the Complainant and then only the Complainant took possession of the said flat.  Before taking possession of the said flat joint inspection was carried out by both the parties (Complainant & Opposite Party) on 08/12/03.  Observation & complaints were recorded.  Defects were rectified and the Complainant was informed vide letter dtd.07/01/04 for taking over the possession.

10)      The Opposite Party has specifically mentioned that the Complainant has taken physical possession of the said flat on 20/02/04.  Then the Complainant again pointed out some defects vide her letter dtd.01/03/04.  Again on 31/03/04, the Complainant pointed out cracks developed in the walls of the flat.  The E.E. of the Opposite Party again inspected the flat and found that the cracks were developed due to some internal work in adjacent flat.  Detailed letter was sent to Complainant on 03/06/04.  All the cracks were rectified.  However, re-plastering of the entire flat as demanded by the Complainant was not justifiable and hence, was not done by the Opposite Party.

11)      The Opposite Party has further stated that the Complainant has made certain changes by extending hall by enclosing balcony and hence, Opposite Party is not responsible.  Finally the Opposite Party prayed for dismissal of the complaint with cost.

12)      The Complainant filed additional affidavit wherein she has stated that she had taken possession of the said flat subject to Opposite Party providing No Dues Certificate and without prejudice to the present complaint.  The Complainant has pointed out that the slope of kitchen platform and both rooms was not proper and hence, there was water accumulation.  The Complainant also filed one document on 04/03/05 rebutting the reply filed by the Opposite Party.  The Complainant has further pointed out that the Opposite Party in his affidavit has admitted the defects in the flat at the time of giving possession to the Complainant.

13)      The Complainant has stated that the Executive Engineer Mr. Nandkumar Deshpande has stated falsely on oath. She has further submitted that she has not constructed any wall or done any massionary work.  The wall has been constructed by neighbour even before giving possession to the Complainant. The Complainant has reiterated that the Opposite Party has delayed the handing over possession.  She has reiterated the defective construction, by use of substandard material etc.

14)      The Opposite Party has filed written argument wherein it has reiterated the facts mentioned in its reply.

15)      The Complainant has filed written argument wherein she reiterated the facts mentioned in the complaint.

16)      The Ld.Adv. for the Opposite Party has filed documents like leave and license agreement between the husband of the Complainant and one Smt. Vellayamma Kokji Parimal for 11 months and possession letter dtd.20/02/04 in respect of the tenement in dispute.

17)      We heard the Ld.Advocate for the Complainant and Opposite Party.  We also perused all the documents filed by both the parties and our findings are as follows –

            The Complainant has applied for a residential tenement situated at Kharghar, Navi Mumbai, vide her application No.3813.  Accordingly, the Opposite Party vide its letter dtd.07/11/2000 allotted C-18-03 tenement to the Complainant. The Complainant paid the full consideration for this tenement.

18)      It is alleged by the Complainant that the Opposite Party escalated the power supply network development charges by Rs.50 per sq.m. and thus, levied excess amount. In this connection the Complainant has produced the copy of a letter dtd.05/11/2001 issued by the Opposite Party to the Complainant. In this letter the Opposite Party has stated that “We have communicated the power supply network development charges as Rs.300/- per sq.m. approximately.  Now the said charges have finally been worked @ 350/- per sq.m.  The Opposite Party has further directed the Complainant to pay additional payment of Rs.50/- per sq.m. to the Opposite Party at the time of execution of sale agreement.  As per allotment letter dtd.07/11/2000 the power supply Network Development charges were shown as Rs.12,293/-.  However, the Opposite Party vide its receipts dtd.16/01/02 has accepted Rs.14,343/-.  Thus, Opposite Party has charged excess amount of Rs.2,050/- without assigning any reason for increasing the charges. Thus, it is established from these documents that the Opposite Party has escalated power supply network Development charges without giving any plausible reason.  Even in the reply of the Opposite Party the Opposite Party is silent on this point and has not given any reason to increase this charge.  Therefore, we find that the Opposite Party has adopted unfair trade practice by burdening the consumer with excess charges and the Complainant is entitle for refund of this amount with interest alongwith compensation for causing mental agony to the Complainant.

19)      The other grievance of the Complainant is that, as per the agreement for sale, the Opposite Party was supposed to hand over the possession on the date of execution of this agreement.  Accordingly, the agreement was registered on 10/05/02.  When she visited the site, she found that the construction was incomplete.  It was not in a condition where the Complainant could reside.  It is alleged by the Complainant that the Estate Manager inspected the flat and accepted that the flat is incomplete she made a complaint in this respect.  In this connection we perused the papers. The Complainant has produced one xerox copy of her letter dtd.31/05/02 addressed to Opposite Party.  In this letter the Complainant has pointed out that the construction of the flat is incomplete & the condition of the construction is not good.  She has further requested to hand over the possession to her.  These allegations were repeated in letter dtd.23/07/02 and 06/09/02.  Finally the Complainant sent a legal notice dtd.29/05/03 reiterating the above grievances.

            On receipt of the notice dtd.29/05/03, the Opposite Party has replied to the Complainant vide letter dtd.01/07/03 that they have repaired the flat and it is ready for handing over the possession.  Accordingly, the Complainant inspected the flat and on 08/07/03, but she again found the following defects and she pointed out the same to the Opposite Party.

a)      In living room the tiles are broken.  The flooring is not properly leveled.

b)     Door handles are in rusted condition.

c)     Balcony flooring was not having good finishing

d)     W.C. room slab no properly finished.  Minor cracks

e)      Bedroom window sides are not finished.

f)      Dampener in bedroom wall.

g)     Tubes, bulbs were not fixed.

h)     W.S. Pan/Pot not finished smoothly etc.

20)      The Opposite Party in its reply has admitted that the Complainant had complained about the defects in the flat and hence, it repaired the defects pointed out by the Complainant and finally the actual physical possession of the flat was given to the Complainant on 20/02/04.  From the reply filed by the Opposite Party it is clear that the flat was not ready for actual possession and there was defects in the construction as mentioned above.  The Opposite Party repaired the defects and handed over the flat to the Complainant on 20/02/04.  Thus, the Opposite Party failed to hand over the well finished defect free tenement to the Complainant on stipulated date as per agreement on 23/01/02.  The actual well finished tenement was not handed over to the Complainant more than 2 years.  During this period the tenement was defective with defects mentioned by the Complainant. The Opposite Party has not uttered a single word regarding these defects in its written reply. On the contrary it has admitted that the defects were repaired and the final possession was given to the Complainant on 20/02/04.  Thus, the allegation of the Complainant that the Opposite Party did not give actual possession of a defect free tenement to the Complainant is established.  The Opposite Party is certainly deficient in providing a defect free tenement to the Complainant.

21)      However, the defects mentioned in the para 4(b) of complaint are not appearing in the letter dtd.31/05/02 of the complaint.  Only the Complainant has mentioned that on 04/02/02 the tenement was in incomplete condition. There is no specific complaint.  Again the Complainant has stated in this letter that she visited the tenement on 04/02/04 to take possession of the said tenement but the tenement was incomplete.  She has given the complaint in respect of the condition of the tenement on the very day to the Opposite Party but the Complainant has not filed any such complaint dtd.04/02/02 in this case.  However, the Complainant has pointed out some of the defects in letter dtd.08/07/03 in respect of living room flooring, door gaps, balcony, latch& W.C. etc.

22)      The Complainant has another grievance regarding the maintenance bill demanded by the Society, though no possession was given to her.  In this connection, dispute is between the Complainant and the Society.  The society is not the party to this complaint and hence, no order can be passed in this respect.

23)      This Forum has also noted that, the Complainant has taken actual physical possession of the said tenement on 20/02/04 i.e. after filing of this complaint before this Forum.  In this connection, the Opposite Party has produced letter dtd.20/02/04.  In this letter it is stated as follows –

            “Inspected the tenement and I have taken over the possession of the said tenement together with the fittings, fixtures and AI.D1 Form and key in good condition.”  This has been signed by the Complainant.  At this time the Complainant has not complained about any defects.  Therefore, it appears that on 20/02/04 the Opposite Party has repaired all the defects and handed over the possession to the Complainant. 

24)      The Opposite Party has also filed a copy of Leave and Licence Agreement in respect of the said tenement between the husband of the Complainant Shri Sanjay Chaphekar and Sau Vellamma Kokanji Parimal.  As per this agreement the said tenement was given to Mrs. Vellamma for 11 month on leave and licence basis from 01/01/12.  Therefore, taking into consideration the findings and facts mentioned above it is established that there is a deficiency in service on the part of Opposite Party as mentioned in para 18 to 20 above.  However, in respect the defects mentioned at para 20, it appears that these defects were removed before 20/02/2004 and then the Complainant has taken the possession of the tenement in dispute.

25)      In view of the above finding we find that the Opposite Party has adopted unfair trade practice by escalating the power supply Network charges by Rs.50 per sq. meter.  There is also deficiency in service on the part of Opposite Party as it did not hand over the defect free possession of the residential tenement from 23/01/02 till 20/02/04 and thereby caused mental agony and physical hardships to the Complainant for which the Complainant is entitled for the compensation.  However, the other grievances of the Complainant are not substantiated.  Therefore, we pass the following order –

                                                                                             O R D E R

            1.    Complaint No.243/2003 is partly allowed.

2.         The Opposite Party is directed to pay Rs.2,050/-(Rs.Two Thousand Fifty Only) to the Complainant alongwith interest @ 9% p.a. from 16/01/2002 till payment.

3.         The Opposite Party is also directed to pay a compensation of Rs.25,000/- (Rs.Twenty Five Thousand Only) to the Complainant for causing mental agony and physical hardship as mentioned in para 18 to 20 above.

4.         The Opposite Party is also directed to pay Rs.5,000/-(Rs.Five Thousand Only) to the Complainant towards the cost of this complaint.  

5.    Opposite Part is directed to comply with the above said order within 30 days from the receipt of copy of  this order.

6.    Certified copies of this order be furnished to the parties.