Advocate Dinkar Bhavsar for Complainant

Advocate Vinod Bapat for Opponents

Per Hon’ble Shri. V.P. Utpat, President

                                     JUDGMENT

                                Dated 16^thJune 2014

                This complaint is filed by flat purchaser against builder and developer as well as housing society for deficiency in service u/s 12 of the Consumer Protection Act, 1986.  Brief facts are as follows-

[1]            Complainant is resident of Yamunanagar, Nigdi, Pune 44. Opponents No.1 is doing the construction business. Opponents No.2 is the housing society.  It is the case of complainant that Opponents No.1 had proposed to form Devi Indrayani Co.Op. Housing Society Ltd., on Gat No.382/1 + 383/1 + 384/1 of village Talavade, Tal. Haveli, District Pune. Opponents No.1 had got sanctioned lay out plan which is approved by the Pimpri Chinchwad Municipal Corporation. Then the revised plan was also approved by the said Corporation. The permission for non agricultural use is obtained by the Opponents. Complainant was interested in purchasing flat from the said scheme. He paid Rs.1,00,000/- as earnest money on 29/09/2006 at the time of execution of registered agreement. The said amount was paid by cheque. Complainant made query about the coverage of red zone, occupation certificate, completion certificate with Opponents No.1. In the agreement dated 13/2/2006 Opponents have agreed that the remaining amount of consideration i.e. 7,81,250/- was to be paid after obtaining occupation certificate under B.P.M.C. Act. Complainant had persuaded for the documents which were required for obtaining loan as well as for completion certificate. But the Opponents instead of obtaining completion certificate, terminated the agreement of complainant by sending notice. They have also demanded the interest on arrears as well as other charges. It is the case of complainant that unless and until completion certificate is obtained, there is no question of payment of remaining balance. Still the Opponents had terminated the agreement by sending the notice. That amount to deficiency in service. Complainant has prayed for directing the Opponents to obtain completion certificate, clearance in respect of red zone, no objection certificate for loan amount. In the alternative complainant has asked compensation of Rs.19,00,000/- and cost of litigation to the tune of Rs.10,000/-.

[2]            Opponents has resisted the claim by filing written version in which it have denied the contents of complaint. It is the case of Opponents that the said construction does not fall within red zone. They have already applied for completion certificate and occupation certificate. The Corporation has neither allowed their application nor rejected the same. Hence, it should be presumed that the Corporation had issued deemed completion certificate and occupation certificate. It is further contended by the Opponents that the brother of the complainant had obtained loan from ICICI Bank for purchasing the flat and occupied the flat in the same building. This indicates that the building is completed in all respect. The complainant has become defaulter and failed to make payment as per the demand hence the complaint is not maintainable. The Opponents has prayed for dismissal of the complaint and asked compensation.

[3]            After scrutinizing the documentary evidence, pleadings, affidavits which are produced by the parties and hearing the argument following points arise for the determination of this Forum. The points, findings and reasons thereon are as follows-

Reasons-

As to the Point Nos. 1 and 2-

[4]            It is the specific case of the complainant that he has paid Rs.1,00,000/- at the time of execution of agreement and remaining balance was to be paid when the Opponents have produced the completion certificate. In order to substantiate this contention complainant has strongly relied upon Schedule 3 clause X of the said agreement. It reveals from the same that the Opponent agreed that the remaining balance amount of Rs.7,81,250/- and other dues were to be paid when the promoter herein obtained completion certificate in respect of the said flat from the local authority or said flat is ready for occupation. It reveals from the correspondence between the Opponent and Corporation that, still the completion certificate is not issued. The Complainant has produced copy of the letter which was addressed to him by the engineer of Pimpri Chinchwad Municipal Corporation and it reveals from the same that Opponent has not obtained completion certificate. Complainant has also produced copy of Memorandum of Understanding between his brother and Opponent in which the Opponents have specifically averred that still the completion certificate is not obtained and the possession of flat is given to the brother of complainant only for the purpose of carrying out interior and furniture work. It is pointed out by the complainant that the builder and promoter cannot deliver the possession of flat unless and until the completion certificate and occupation certificate is obtained from the local authorities. If that term is violated that amounts to offence under the BPMC Act. In such circumstances it is very difficult to accept the contention of the Opponent that as the Pimpri Chinchwad Municipal Corporation has not replied their request as regards granting completion certificate, that amounts to deemed completion. Opponent has produced application made by their Architect to the Pimpri Chinchwad Municipal Corporation. Opponent has also produced the certificate as regard clearance of red zone. In this circumstances, it is the opinion of the Forum that there is no fault at the instance of complainant, as; as per the terms of the agreement Opponent has not obtained completion certificate. Unless and until the completion certificate is obtained the complainant cannot occupy the flat and he is not bound to pay the balance amount of consideration. In this regard this Forum is of the opinion that the complainant has proved that Opponents have caused deficiency in service by not obtaining completion certificate as well as by not giving the documents which were required for obtaining loan. As it reveals from the proceeding that the relations between the parties are strained, still the Opponents have not produced any documentary evidence to show that the completion certificate is obtained. Hence, it would be embarrassing to allow the same relief which is claimed by the complainant in the present proceeding. Hence, instead of directing the Opponents to hand over the flat after obtaining completion certificate it is convenient to grant alternative relief i.e. refund of consideration of Rs.1,00,000/- along with interest @ 9% p.a. from the date of making payment i.e. 29/09/2006 till its realization, would meet ends of justice. Complainant is also entitled for compensation of Rs.25,000/- for deficiency in service, for mental and physical sufferings as well as cost of litigation.

                In the result, this Forum answers points according and pass following order –

                                       :- ORDER :-

1. Complaint is partly allowed.
2. It is hereby declared that the Opponents have caused deficiency in service by not obtaining completion certificate as well as by not giving the documents which were required for obtaining loan.
3. Opponents are jointly and severally directed to refund amount of Rs.1,00,000/- [Rupees One Lakh only] to the complainant along with interest 9% p.a. from  29/09/2006 till its realization within six weeks from the date of receipt of copy of order.
4. Opponents are jointly and severally directed to pay amount of Rs.25,000/- [Rupees Twenty Five Thousand only] to the complainant towards compensation for deficiency in service, for mental and physical sufferings and cost of the litigation within six weeks from the date of receipt of copy of order.
5. Both parties are directed to collect the sets which are provided for the Hon’ble Members.

 Copy of order be supplied to both the parties free of cost.

Place – Pune

Date – 16/06/2014