Present         (1)      Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                               President

                    (2)      Anil Kumar Singh

                              Member

Date of Order : 24.10.2018

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To direct the opposite parties to give physical possession of completely finished flat no. A on 3^rd or 6^th floor in the Prabha Twin Towers situated in Dusadhi Pakri, Kankarbagh, Patna.
2. To direct the opposite parties to pay the rent of the flat in which the complainant is residing from January 2013 till the date of actual physical possession to be given by the opposite parties @ Rs. 12,500/- per month with 15%increment per year.
3. To direct the opposite parties to pay the resnt of the flat in which the complainant is residing since December 2010 till December 2012 @ Rs. 10,000/- per month i.e. Rs. 2,50,000/-.
4. To direct the opposite parties to pay Rs. 10,00,000/- as compensation for the inconvenience, mental agony, physical harassment and loss of reputation suffered by the complainant and her husband.
5. To direct the opposite parties to pay Rs. 25,000/- as litigation cost.

2. The facts of this case lies in a narrow compass which is as follows:-

The complainant has asserted that she with her husband applied for booking of a flat to opposite parties for booking a flat in their forth coming apartment namely “Prabha Twin Towers”. Thereafter Rs. 2,50,000/- was deposited as advance on 29.04.2007. The flat was to have super built up area of 1,450 Sq. Ft. and the rate agreed by both the parties was 1,200 Sq. Ft which comes to Rs. 17,40,000/-. The booked flat was to be constructed and numbered as flat no. A on 3^rd floor of Block – B of the said apartment. As per booking document Rs. 6.9 Lacs was to be paid by the complainant till casting of the terrace of 3^rd floor and balance of Rs. 11,31,000/- (65% of the total cost) was to be paid at the time of handing over possession of the booked flat. Opposite parties had assured that construction work shall be completed in November 2008 with grace period of 6 month and the flat was to be handed over to the complainant and husband in the end of May 2009 in finished condition.

It is further case of the complainant that later on the opposite parties requested the complainant and her husband to get flat at 6^th floor in another tower and accordingly an agreement was executed on 31.07.2008. The opposite parties had assured that the flat will be handed over within the schedule period. However, opposite parties had informed that the price of the flat will be increased to Rs. 27,60,000/- for a smaller unit comprising of 1,380 Sq. Ft. @ Rs. 2,000/- per Sq. Ft. As per agreement dated 31.07.2008 the flat no. A of block – A was to be handed over to the complainant and her husband on or before July 2010 schedule of the payment has also been changed by the opposite parties which is mentioned in Column – 2 of the agreement. The complainant and her husband arranged money and till 17.02.2009 paid Rs. 22,10,000/- more than 80% of the agreed amount.

It has been further stated that opposite parties took the aforesaid amount of Rs. 22,10,000/- and issued two different type of money receipt namely Friendlies Estate and Essential Pvt. Ltd. (opposite party no. 1) and Prabha Twin Towers.

The further case of the complainant is that the husband of the complainant is in Merchant Navy and despite repeated request the aforesaid flat was not handed over to them. The complainant is always ready to pay remaining amount of Rs. 5,50,000/-. The complainant had received an undated notice from opposite parties by which they demanded the full consideration amount at revised and undisclosed rate within a period of four week with a threat to cancel the booking. The aforesaid notice was sent to the complainant only to harass her as the flat was not complete. The husband of the complainant replied the notice on 28.11.2012 and put his objection with respect to the conduct of opposite parties but the opposite parties never responded to the reply of the husband of the complainant and the complainant is still residing in the rented house and paying handsome amount every month due to fault of opposite parties.

The grievance of the complainant is that although the complainant had already agreed to pay enhanced rate from Rs. 1,200/- to Rs. 2,000/- per Sq. Ft. but despite the fact the opposite parties did not keep their word and they have not given possession of the flat although the complainant is ready to pay Rs. 5,50,000/- to the opposite parties at the time of giving possession of the completely finished flat as per the agreement after deducting the rent paid by the complainant from 01.12.2010 till the date of receipt of possession of flat.

From record it appears that when the notice of the forum could not be served on opposite parties then Dusti Sumon was sent to opposite parties which was received by their staff and opposite party no. 2 had appeared on 28.05.2015 and thereafter he did not turn up again as will appear from order sheet dated 06.04.2016 when opposite parties did not filed written statement then this case was heard ex – parte after debarring the opposite parties from filing written statement.

On behalf of complainant the letter dated 21.03.2017 issued under signature of opposite party no. 2 has been annexed as annexure – A of the affidavit dated 18.04.2018 from perusal of which it appears that opposite parties want to cancel the booking of the flat so that they can sale the flat on higher price to another person.

In Para – 7 of affidavit dated 18.04.2018 it is stated by the complainant that she want to take the flat as per agreement and if the same is not possible then she had prayed to receival of her deposited amount with interest of 18%.

It goes without saying that as the opposite parties have not filed written statement and hence the statement of the complainant on oath in her complaint petition shall have to be taken as true.

It goes without saying that statement of the complainant in her complaint petition clearly disclose deficiency on the part of opposite parties.

For the reason stated above the opposite parties are directed to hand over the flat in finished condition to the complainant as per agreement dated 31.07.2008 within the period of three month from the date of receipt of this order or certified copy of this order and the complainant is also directed to make payment of the remaining amount as per the agreement at the time of registration of the deed.

It is also made clear that if the aforesaid flat is not handed over to the complainant as per agreement dated 31.07.2008 due to the impossible change of situation then the opposite parties will have to return the amount of the complainant which has been paid by the complainant along with 14% interest within the period of three month from the date of receipt of this order or certified copy of this order failing which opposite parties will pay 18% interest on the amount paid by the complainant to opposite parties.

Opposite parties are further directed to pay Rs. 50,000/- ( Rs. Fifty Thousand only) to the complainant by way of compensation and litigation cost within the period of three month.

Accordingly, this complaint stands allowed to the extent referred above.

                                     Member                                                             President