Per Mr B A Shaikh, Hon’ble Presiding Member
1. This is a complaint filed under Section 17 of Consumer Protection Act, 1986.
2. The case of the complaint in brief is as under.
a. The opposite party No.1 is Infratech Real Estate Pvt Ltd. Company. The opposite party No2 is authorised representative of the said opposite party No.1 – company. The opposite party No.1 is a builder and developer. It is engaged in the business of constructing houses in the layout carved out by it and selling the same. The opposite party started a scheme constructing villas over the land described in Para No.2 of the complaint, in detail. The opposite party also distributed pamphlets about that scheme. Looking to the said scheme, the complainant approached the opposite party for purchasing one of the villas for his residential use. After detailed negotiations, the price of the villa No.9 of the said scheme, admeasuring 1944 sq.ft. alongwith built up area of 1676 sq.ft., was fixed at Rs.40.00 Lakhs as per agreement to sell dtd. 07.11.2009. The complainant at the time of agreement, paid part of consideration of Rs.6.00 Lakhs as an earnest money and the balance amount was agreed to be paid as per said agreement. The opposite party issued separate receipt of Rs.6.00 Lakhs.
b. The complainant had also booked two plots under that scheme with opposite party on 26.10.2009 and he had paid Rs.51,000/- on 26.10.2009 to the opposite party for purchasing the plots. However, thereafter the said transaction regarding the plots was cancelled and as per request of the complainant the said amount of Rs.51,000/- was adjusted in balance part price of the aforesaid villa. Thus, the complainant paid total Rs.6.51 Lakhs to the opposite party.
c. It was agreed by the opposite party that construction will be completed within 24 months from that agreement. However, the opposite party did not start the construction nor provided any document to the complainant as required for execution of the sale-deed. The complainant made requests repeatedly to the opposite party and he was also ready and willing to perform his part of contract. But the opposite party failed to perform the part of its contract. Therefore, lastly, the complainant issued notice dtd.11.04.2017 through his advocate calling upon the opposite party to intimate the date and time of execution of sale-deed by accepting balance consideration from him. However, the opposite party did not give any response to that notice. Hence, the opposite party filed present complaint seeking following reliefs.
i. Direct the opposite party to execute the sale of villa No.9 by accepting balance consideration as per agreement to sell dtd.07.11.2009.
ii. Or alternatively, the opposite party may be directed to refund Rs.6.51 Lakhs with interest @ 24% p.a. from the date of receipt i.e. from 07.11.2009 till its realization by him.
iii. Direct the opposite party to pay Rs.1.00 Lakhs as compensation for mental harassment and willful delay and deficiency in service on the part of opposite party.
iv. Direct the opposite party to pay Rs.50,000/- to the complainant towards litigation expenses.
v. Direct the opposite party to pay interest @ 18% p.a. on the amount awarded by this Commission.
3. The complainant alongwith complaint filed copies of agreement to sell dtd.07.11.2009, allotment letter dtd.03.11.2009, two receipts dtd.26.10.2009, legal notice dtd.11.04.2017, acknowledgement about service of notice and returned envelope sent on another address of the opposite party. The complainant’s advocate also filed Written Notes of Arguments.
4. Initially notice of the complaint was issued by this Commission to the opposite party and it was given Hamdast to the advocate of the complainant for service by Registered Post A.D. It appears that the said notice was sent by the complainant to the opposite party on their same address given in the complaint. However, the envelope containing that notice was returned unserved with postal endorsement as “Not claimed”.
5. Thereafter, as per request of the advocate of the complainant permission was granted to the complainant to serve the notice to opposite party by publishing it in local newspaper. Thus, as per the said permission, the complainant published the said notice in local newspaper. The complainant produced one of the issues of that newspaper namely “Navabharat” dtd.17.01.2018 in which the said notice was duly published. After going through the same, we hold that the notice was duly served to the opposite party. As the opposite party failed to appear, this Commission passed an order dtd.26.02.2018 to proceed exparte against the opposite party.
6. We have heard advocate Mr S S Sitani, appearing for the complainant, today and we have also perused the record & proceedings of the complaint.
- The learned advocate of the complainant has drawn our attention to the aforesaid documents filed on record and submitted that though an amount of Rs.6.51 Lakhs was paid as an earnest money to the opposite party, they did not start the construction as per the said agreement. He further submitted that as per agreement, at the time of booking Rs.33,200/- and at the time agreement Rs.5,66,800/- were to be paid, but the complainant paid Rs.6.51 Lakhs which was more than the amount of the said agreement at that particular stage.
8. The learned advocate of the complainant further submitted that Rs.8.00 Lakhs were to be paid on completion of plinth of the construction, but the plinth is still not constructed. Therefore, there was no question of payment any more amount to the opposite party. He also submitted that as no further construction is made, the cause of action is continuous for filing of the complaint.
9. The learned advocate of the complainant further submitted that that as the complaint and the documents filed by the complainant went unchallenged, the same may be believed and the reliefs sought for, may be granted.
10. After considering the record & proceedings of the complaint, we find that the opposite party though agreed to sell the villa No.9, described in the complaint to the complainant as per agreement to sell and though the opposite party accepted Rs.6.51 Lakhs from the complainant as part of consideration, it failed to perform its part of contract by making construction as per said agreement and thus rendered deficient service to the complainant. We find that there is no reason to disbelieve the complaint and documents filed on record by the complainant as the same went unchallenged as opposite party remained absent after service of notice as above. Thus, relying on the averments made in the complaint and documents filed on record, we hold that the cause of action for filing of the complaint is continuous and that the complainant is entitled to get the sale-deed by paying balance consideration. Alternatively, the complainant is entitled to get refund of Rs.6.51 Lakhs with interest, compensation and cost as below.
ORDER
i. The complaint is partly allowed.
ii. The opposite party Nos.1 & 2 shall make full construction of villa No.9 as described in detail in the complaint, as per agreement to sell within a period of six months from today and shall execute registered sale-deed of the same in favour of the complainant within six months after making full construction and shall give its possession at the time of sale-deed by accepting balance consideration as per agreement from the complainant at the time of execution of sale-deed.
iii. If the opposite party is unable to make construction of the said villa within six months from today and unable to execute the sale-deed as above, then the opposite party shall refund Rs.6.51 Lakhs to the complainant with interest @ 15% p.a. from 07.11.2009 till realisation of the same by the complainant.
iv. The opposite party shall also pay compensation of Rs.1.00 Lakh for physical & mental harassment and litigation cost of Rs.20,000/- to the complaint.
v. Copy of the order be furnished to both parties free of cost.
