Per Mr.B.S.Wasekar, Hon’ble President
1) The present complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986. According to the complainant, he booked the residential flat No.211 on the 2nd Floor in building known as ‘Sant Mukta Bai CHS Limited’ admeasuring 350 Sq.Ft. carpet area for Rs.2,75,000/-. He paid Rs.35,000/- as booking amount on 21st January, 2007 and the opponents issued receipt to that effect. As per provision u/s 4 of MOFA Act, 1963, it was mandatory on the opponents to execute agreement for sale in favor of the complainant but the opponents failed. Thereafter, on demand, the complainant paid further amount of Rs.50,000/- to the opponents on 7th January, 2008 and the opponents issued receipt. Again, the opponents demanded Rs.63,000/- and the complainant paid it on 8th March, 2009 in presence of Mr.Pradeep Eknath Botale. The opponents refused to issue receipt. In spite of this payment, the opponents failed to execute agreement for sale. However, on 1st May, 2004, the opponents issued letter claiming illegal demand. Thereafter, the opponents demanded Rs.2 Lakhs. The complainant issued cheques of Rs.1 Lakh and Rs.50,000/- and the opponents issued receipt to that effect. Thereafter, again, on demand of the opponents, the complainant paid Rs.1,50,000/- to the opponents on 6th April, 2010 and the opponents issued receipt to that effect. In spite of payment, the opponents failed to execute the agreement and handover the possession of the flat to the complainant. The complainant was forced to incur additional expenses of Rs.22,000/- towards rent. The complainant also paid security deposit Rs.20,000/-. In spite of payment, the opponents failed to execute the agreement and handover the possession of the flat. Therefore, the complainant has filed this complaint to direct the opponents to execute and register the agreement for sale of Flat No.211, in the building known as Sant Mukta Bai CHS Limited. He has also prayed for direction to the opponents to handover the possession of the flat after obtaining occupation certificate and to give regular water supply connection and separate electric meter and other amenities. The complainant prayed for recovery of rent amount Rs.30,800/- and Rs.49,500/-. He has also prayed for compensation of Rs.3 Lakhs and legal expenses of Rs.30,000/-.
2) The opponents appeared and filed written statement. It is submitted that the claim is barred by limitation. There is no deficiency in service. It is admitted that the opponents received Rs.35,000/- towards Flat No.211 on 2nd Floor. However, the consideration amount was fixed at Rs.4,50,000/- and not Rs.2,75,000/-. The complainant failed to pay the amount though the building was completed upto 5th Floor. Therefore, notice was issued to the complainant dated 1st May, 2009 calling upon him to make the payment. The price of the real estate had gone up in the year-2010 therefore the complainant approached the opponents and requested to allot the flat and showed willingness to make the payment. He issued cheque of Rs.1 Lakh and Rs.50,000/- dated 23rd March, 2010 however the same were bounced with endorsement ‘drawers signature differs’. Intimation was given to the complainant and he paid Rs.1,50,000/- on 6th April, 2010. The complainant never paid Rs.63,000/- as claimed by him. The complainant failed to pay Rs.4,50,000/- therefore he is not entitled for the relief as claimed.
3) After haring both the parties and after going though the record, following points arise for our consideration.
POINTS
Sr. No. | Points | Findings |
1) | Whether the claim is barred by limitation ? | No |
2) | Whether there is deficiency in service ? | Yes |
3) | Whether the complainant is entitled for the relief as claimed ? | Yes |
4) | What Order? | As per final order |
REASONS
4) As to Point No.1 :- There is no dispute that the complainant booked the flat and paid Rs.35,000/- on 21st January, 2007. Next payment of Rs.50,000/- dated 7th January, 2008 is also not disputed. According to the complainant, thereafter he paid Rs.63,000/- on 8th March, 2009. It is disputed by the opponents. Further payment of Rs.1 Lakh and Rs.50,000/- by cheques dated 23rd March, 2010 is also disputed by the opponents. Further payment of Rs.1,50,000/- on 6th April, 2010 is not disputed by the opponents. Thus, the booking of the flat was on payment of booking amount of Rs.35,000/- dated 21st January, 2007. Similarly, last payment of Rs.1,50,000/- dated 6th April, 2010 is also not disputed. There is also payment of Rs.50,000/- dated 7th January, 2008, which is not disputed. It was expected to execute agreement for sale in favour of the complainant after receiving the amount from the complainant as per the provision under MOFA Act. Admittedly, the opponents have not executed the agreement for sale in favour of the complainant. The opponents were expected to execute the agreement and handover the possession of the flat to the complainant within reasonable time. There is no time limit agreed between the parties to hand over the possession. Therefore, the opponents can not take benefit of their own wrong and submit that the claim is barred by limitation. There is no refusal by the opponents after receiving the amount Rs.1,50,000/- on 6th April, 2010. The limitation will start from the date of refusal after last payment. As there is no refusal by the opponent after last payment, the claim is well within limitation.
5) As to Point No.2 & 3 :- As discussed above, there is no dispute of the payment of Rs.35,000/- dated 21st January, 2007, Rs.50,000/- dated 7th January, 2008, Rs.1,50,000/- Rs.6th April, 2010. Thus, there is no dispute about total payment of Rs.2,35,000/-. The opponents has disputed the payment of Rs.63,000/- dated 8th March, 2009 and the payment of Rs.1,50,000/- by two cheques dated 23rd March, 2010. The complainant has produced affidavit of Mr.Pradeep Botale for showing the payment of Rs.63,000/-. After going through his affidavit, it differs from the affidavit of the complainant about the mode and details of payment. As per affidavit of the complainant, he paid Rs.23,000/- on 18th November, 2007 and Rs.40,000/- on 25th March, 2009. But, as per the affidavit of Mr.Pradeep Botale amount of Rs.63,000/- was paid on 8th March, 2009. Considering this contrary evidence, the contention of the payment of Rs.63,000/- can not be accepted. The opponents has produced copies of bank letter showing that cheques were not enchased as drawers signature differed. It is not disputed by the complainant. Thus, as per the evidence on record, the complainant paid Rs.2,35,000/- to the opponents.
6) According to the complainant, consideration was fixed at Rs.2,75,000/-. On the other hand, the opponents has submitted that consideration was fixed at Rs.4,50,000/-. Nobody has produced documentary evidence showing the fix consideration amount. As per the provision under MOFA Act, the opponents were bound to execute the agreement in favour of the complainant after receiving the amount. The opponents has not disputed the payment of Rs.2,35,000/- still they have not executed the agreement in favour of the complainant. Therefore, adverse inference is to be drawn against the opponents. On this background, we think it just to accept the submission of the complainant about the fix consideration of Rs.2,75,000/-. The opponents are bound to execute the agreement for sale in favour of the complainant after receiving the balance amount of Rs.40,000/- and to handover the peaceful possession of the flat after complying the necessary formalities under the MOFA Act.
7) The complainant has also claimed the rent amount Rs.30,800/- and Rs.49,500/-. The complainant has not produced any evidence to show the time limit for handing over the possession of the flat. He has also not produced the affidavits of the persons who received the amount from him. Therefore, the complainant is not entitled to recover this amount from the opponents.
8) The opponents failed to execute the agreement for sale in favour of the complainant in spite of receiving the payment. Therefore, the complainant suffered from mental agony. The complainant has claimed compensation of Rs.3 Lakhs. We think compensation of Rs.25,000/- will be reasonable compensation. Besides this, the complainant is entitled for cost of litigation of Rs.5,000/-.
9) Thus, the complainant is entitled for the possession of the flat and agreement of sale in his favour after complying all the necessary formalities under the MOFA Act. Hence, we proceed to pass the following order.
ORDER
1) Complaint is allowed.
2) The opponents are directed to execute agreement of sale in favour of the complainant after receiving the balance amount of Rs.40,000/- (Rs.Fourty Thousand Only) from the complainant and after complying all the necessary formalities under the MOFA Act.
3) The opponents are directed to hand over the peaceful possession of the Flat No.211, admeasuring 350 Sq.Ft. on 2nd Floor in the building known as ‘Sant Mukta Bai Building’ situated at Manvelpada Road, Virar(East), District-Thane.
4) The opponents shall pay compensation of Rs.25,000/- (Rs.Twenty Five Thousand Only) to the complainant for mental agony and Rs.5,000/- (Rs.Five Thousand Only) towards cost of this litigation.
5) The order under Clause No.2 to 4 shall be complied with within a period of one month.
6) Copies of this order be sent to the parties free of cost.
