O   R   D   E   R

          This is a complaint filed under Section 12 of Consumer Protection Act seeking the relief to direct the O.Ps. to pay an amount of Rs.4,000/- p.m., towards damages from 9-2-2012 to June, 2013 and also to pay future damages and to direct the O.Ps. to complete the construction of the flat as per agreement and to deliver its possession its position within stipulated time and also to direct the O.Ps. to pay 2 lakhs towards damages for causing mental agony and discomfort  besides awarding costs on the following averments:

          The 1^st O.P. is the absolute owner of the site admeasuring 507 Sq.Yards who purchased the same under the sale deed dt.17-10-2007.  The 1^st O.P executed  an agreement of sale cum power of attorney in favour of 2^nd O.P and the same was registered on 16-11-2007 and the latter submitted a plan for construction of stilt floor, ground plus 3 floors with a view to sell the same to others.  The 1^st complainant approached the 2^nd O.P. with a view to purchase a flat in the apartment for a consideration of Rs.12,35,000/-.  The 2^nd O.P. informed the complainants to pay an amount of Rs.5,60,000/- at the time of registration and to pay the balance amount of Rs.6,07,500/- at different stages of the construction.  The complainants have paid Rs.5,60,000/- to the 2^nd O.P. on 9-12-2010 upon which this latter executed a sale deed on behalf of 1^st O.P. being the agreement to sell cum power of attorney holder.

          The 2^nd O.P. executed the construction agreement for the construction of said flat in favour of complainants and the same was also registered.  The complainant paid a sum of Rs.4 Lakhs i.e., Rs. 1 Lakh by way of cheque and Rs.3 Lakhs by way of cash for which the 2^nd O.P. did not issue any receipt and told that he will provide additional amenities to the said house.  The 2^nd O.P. constructed the residential building but did not lay flooring and did not complete the construction in terms of the agreement entered into between the parties.  Inspite of repeated demands made by the complainants the O.Ps. did not complete the construction and did not deliver the flat to them.  Hence the complaint.

          Notice was sent to the O.Ps. and inspite of service of notice they did not come to the Forum to contest the matter.  In support of complainants case the evidence affidavit of P.W.1 is filed and they got marked Ex.A.1 to A.3.  To know the stage of construction an Advocate Commissioner was appointed on                    8-5-2014 and the said commissioner having visited the schedule property submitted his report.

          Now the point for consideration is whether the complainants are entitled to get the reliefs as prayed for ?

          The learned counsel for complainants has contended that there is ample evidence on record to believe that the O.Ps. did not complete the construction of the flat inspite of repeated demands made by the complainants and as the O.Ps did not appear in the Forum to contest the matter,  the contents of the complaint as well as evidence of P.W.1 remain uncontroverted and as such the complainants are entitled to get the reliefs prayed for. 

It is an admitted fact that inspite of service of notices the O.Ps did not come to the Forum to contest the matter.  Hence the contents of complaint and the oral and documentary evidence adduced on behalf of the complainants are remained uncontroverted.

          In the complaint as well as in the evidence of P.W.1 it is clearly stated that 2^nd O.P. agreed to sell the flat for consideration of Rs.12,35,000/- and on the request made by the 2^nd O.P. a sum of Rs.5,06,000/- was paid to them at the time of registration and the balance amount of Rs.6,07,500/- was agreed to be paid as and when the construction is completed.  Ex.A.1 is the copy of sale deed dated 9-12-2010 and as seen from its contents the 2^nd O.P. being the power of attorney holder of 1^st O.P. has executed the sale deed in favour of complainants, Ex.A.2 is the copy of residential flat construction agreement and the same was executed by the 2^nd O.P. in favour of complainants and as seen from its contents the complainants had to pay Rs.6,07,500/- at different stages of construction of the flat and the said construction was to be completed within one year from the date of its execution.  The complainants have taken a plea that in pursuance of terms and conditions of Ex.A.2 they have paid                    four lakhs i.e., one lakh by way of cheque and three lakhs by way of cash. 

          For the reasons best known the complainants did not file any documents to show that the above said payments were made to O.P.2.   On the other hand they have filed Xerox copy of deposit receipt for 5 lakhs.  The above said deposit was made in Kaurur Vysya Bank, Visakhapatnam to show that the complainants are having sufficient money to comply the terms and conditions of Ex.A.2 agreement.  During pendency of this complaint an Advocate Commissioner was appointed to note down the physical features of the schedule flat.  As seen from Commissioner’s Report the construction of flat was not completed. 

          Since the complainants have not paid the entire amount as agreed under Ex.A.2 agreement and as the construction of the flat was not completed a direction cannot be given to the O.Ps. to pay an amount of Rs.4,000/- per month towards damages from 9-2-2012 to June, 2013.  Since the O.P.No.2 did not complete the construction as agreed under Ex.A.2 a direction can be given to him to complete the construction and after receiving balance amount he has to deliver the possession of the flat to the complainants.

          In the result the complaint is partly allowed directing the 2^nd O.P. to complete the construction of the building within 2 months from the date of this order and after receiving the balance amount he has to deliver possession of the same to the complainants.  The O.P.No.2 is directed to pay a sum of Rs.20,000/- (Rupees twenty thousand only) towards damages for causing mental agony, discomfort and inconvenience to the complainants.  He is further directed to pay a sum of Rs.3,000/- towards costs of the complaint which includes the advocate fee of Rs.1,000/- (Rupees one thousand only).

Dictated to the Typist, transcribed by her, corrected by me and pronounced by us in the open Forum, this the 5^th day of August, 2014.

Member                                                           President.

CC. 57 of 2013

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

     For P.W.1                                                                  For R.W.1                                                                               

DOCUMENTS MARKED

For complainant:-

1. Ex.A.1 Attested copy of Sale deed dt.9-12-2010
2. Ex.A.2 Construction agreement dt.9-12-2010
3. Ex.A.3 Karur Vysya Bank Deposit Receipt dt.24-6-13 (Xerox copy)

For O.P:-   NIL                                                                                                                                                                                                              President