Per Ms. Savita G. Kurtarkar, Member]

By this order we shall dispose the complaint filed by the Complainant  under section 12 of the Consumer Protection Act 1986. 

1. The facts of the case are as under:-

   That vide agreement dated 25-03-2011 executed between the Complainant and Opposite Parties No.1 who is the owner-cum- developer and Proprietor of M/s. Melissa Developers, and Opposite Parties No.2 who is the wife of said Opposite Party No.1 and the confirming party to said agreement for construction cum sale dated 25-03-2011,  the Opposite Parties No.1 agreed to construct for the Complainant a flat bearing No.FF-1 situated on the first floor of ‘Melissa Green Valley’ admeasuring an area of 78 sq.mts  constructed in the property denominated as Murgulachi Numoxi or Mosmailo or Cargalachi Numoxi or Valados surveyed under survey no.235/3 of Cortalim Village for a consideration of Rs.16,00,000/- payable as per schedule 3 of the said agreement.  The Opposite Parties  agreed to hand over the possession of the said flat within 24 months from the execution of the agreement dated 25-03-2011.

    

2. In the month of May 2013, the Complainant received a notice dated 23/05/2013 signed by the Opposite Parties No.1asthe Proprietor of M/s Melissa Developers and asked the Complainant to make payment of the seventh and final installment of Rs.32,000/- as the flat was ready for possession.The Complainant paid the amount of Rs.32,000/-on 11-06-2013 to the Opposite Party No.1 and the Opposite Party No.1 issued a receipt duly signed by the Opposite Party No.1 to the Complainant.

    

3. Further, it is the case of the Complainant that the Opposite Parties demanded additional Rs.44,300/-as the amount for carrying outadditional work to the said flat.The Complainant offered to pay Rs.44,300/- on the same day by handing over a cheque for the said amount of Rs.44,300/-. The Opposite Parties refused to accept the same,however when asked for the breakup /detailsof Rs.44,300/- Complainant was givena piece of white paperwherein figures totaling Rs.44,300/- was shownfor extra work carried out.

    

4. On 14-06-2013, the Complainant No.2 went to the office of the Opposite Party No.1 with cash ofRs.44,300/-.However, the Opposite Parties put a condition to the Complainant no.2to bring with her,hersister in law ( i.e. sister in law of Complainant No.2) to settle the dispute between the Complainant No. 2 and sister in law of Complainant No.2, and ask the Complainant no.2 to settle the dispute between her and her sister in law, and the Opposite Parties did not accept the said payment of Rs.44,300/- as the Complainant No.2 refused to bring her sister in law as her sister in law had nothing to do with handing over the possession of the flat by the Opposite Parties to the Complainant.The Opposite Parties therefore, did not hand over the possession to the Complainant.

    

5. The Complainant tried to contact the Opposite Parties for taking possessionof the flat from the Opposite Parties, however, her efforts failed and when she contacted the office clerk, the office clerk asked the Complainant No.2 to come to the office of the Opposite Parties on 06-08-2013 at 4.30 p.m. The lady office clerk who was present in the office of the Opposite Parties asked the Complainant to pay interest of Rs.65,948/- for delayed payments in addition to the Rs.44,300/-.When the Complainant asked for the details of the said Rs.65,948/- the said clerk handed a piece of paper wherein the said amount was written.The Opposite Parties did not pay any heed to the request of the Complainants to hand over the possession of the said flat.The Complainants therefore, through an advocate sent a legal notice dated 13-08-2013 to the Opposite Parties, and after dispatch of the said letter, the Complainants received a letter dated 12-08-2013 from the Opposite Parties.

    

6. The Opposite Parties, vide letter dated 11-09-2013 replied to the letter of the Complainant dated 13-08-2013.According to the Complainant, the possession of the flat is neither handed over to the Complainantson 25-03-2011 nor thereafter, therefore the deficiency in service as against the Opposite Parties.

    

7. The Complainant at the time of filing the present complaint relied on the following documents:-

   i) Agreement for construction and sale dated 25^th March,               2011

   ii)  Copy of receipt No.749 dated 11-06-2013.

   iii) Copy of the letter of demand no. dated 23-05-2013.

   iv) Copy of the piece of white paper given on 11-06-2013.

   v)  Copy of the second piece of paper given on 6-8-2013indicating interest payable inter alia other expenses..

   vi) Copy of the lawyer’s notice dated 13-08-2013 to the Opposite  Parties.

   vii) Copy of letter dated 12-08-2013 of Melissa Developers addressed to the Complainants.

viii) Copy of the lawyer’s second letter dated 22-08-2013 addressed to the Opposite Parties in response to their letter dated 12-08-2013 above listed at no.7.

ix) Copy of the letter dated 11-09-2013 of the lawyer of the Opposite Parties.

x) Copies of the remaining six receipts in respect of the installments paid.

1. The Complainant prayed as under:

   a) That the Opposite Parties be directed to deliver the possession of the said flat upon receiving of an amount of Rs.44,300/- from the Complainants. which amount has remained unpaid due to the malafide intentions and neglect of the Opposite Parties to receive the same.

    

   b) That the Opposite Parties be directed to execute a Deed of Sale or a Deed of Conveyance conveying the said flat in favour of the Complainants, so as to provide them a clear and marketable title to the said flat.

    

   c) That the Opposite Parties be directed to pay to the Complainants a sum of Rs.50,000/- as damages to the Complainants for the unnecessary hardships and mental torture caused to the Complainants, without any justification.

    

   d) That the opposite Parties be directed to pay compensation of Rs.1000/- per day to the Complainants, till such time as the peaceful possession is delivered to the Complainants, for causing financial loss to the Complainants by willfully withholding the delivery of the possession of the said flat from the Complainants even after having received the entire consideration by the opposite Parties No.1 & 2 as stipulated in the said Agreement for construction –cum-sale dated 25-03-2011.

    

   e) That an interest @ 18% p.a. on Rs.16,00,000/- from the date of the cause of action i.e. 121th June 2013 till such time as the peaceful possession is given to the Complainant.

    

   f) That any other reliefs that this Honourable Forum may deem fit and proper.

    

2. The Opposite Parties were served and filed their written version.In the written version the Opposite Parties raised the following preliminary objections.

    

   1. The complaint is misconceived untenable, frivolous and ill-founded and is malicious attempt on the part of the Complainant for abusing the process of law and has suppressed the documents, and facts which are vital and necessary for disposal of the complaint.Therefore the complaint ought to be dismissed.

       

      b)  That the flat being the subject matter of the complaint,   has already been sold and possession has been delivered  to third party much prior to the filing of this complaint.  The complaint being purely of civil nature of complex, question of law and facts, this Forum has no jurisdiction.  The Opposite Parties are not in possession of the flat.

       

3. The Opposite Parties denied the allegations made in the complaint.The case of the Opposite Parties is that the Complainants breached the terms of the agreement conditions, as payments of the installment were not made as per the schedule III of the agreement.Therefore, the Opposite Party No.1 had no option but to cancel and terminate the agreement.

    

4. According to the Opposite Party No.1 the first installment which was supposed to be paid at the time of signing of the agreement was paid only on 05-04-2011 after great persuasion and reminders. Secondly, the second and third installments (Rs.8,00,000/-) as per the schedule III of the agreement were paid only after letter dated 18-04-2011.The Complainant failed and neglected to pay the same.According to the Opposite Parties, the Opposite Partieshad sent a letter dated 29-04-2011 to pay the total sum of Rs.10,40,000/- which the Complainant failed and neglected to pay.

    

5. According to the Opposite Parties, 2^nd , 3^rd and 4th installments were dueand payable, however, the same was paid on08-05-2011.Thereafter, the second, third, and fifth installmentof Rs.9,60,000/- which was payable by the Complainant was not paid.Therefore, the Opposite Party sent a letter dated 02-06-2013, still the Complainants failed to pay the same.According to the Opposite Parties, the Opposite Parties vide their letter dated 24-06-2011 for the payments of the amount due being Rs.9,60,000/-, reminded the Complainant to pay the same, however, the Complainants failed and neglected to pay the same.

    

6. That on 15-07-2011, the Complainant paid the fifth installment ofRs.1,60,000/- only.On 25-07-2011, the Complainant paid an amount of Rs.4,80,000/- and an amount of Rs.3,20,000/- was due.According to the Opposite Parties vide letters dated 15-08-2011 and 29-08-2011, the Complainants were reminded to make the payment of the balance amount due and payable.However, the Complainant failed to do so.

    

7. It is the case of the Opposite Parties that the Complainant paid an amount of Rs.3,20,000/- on25-09-2011 and same was accepted by the Opposite Parties without prejudice.

    

8. It is the case of the Opposite Parties that the Complainants vide their letter dated23-09-2011 had requested the Opposite Parties to execute extra work and they have not paid the same.

    

9. It is also the case of the Opposite Parties that the sixthand seventhinstallments were paid after due date and after sending letters dated 11-07-2012 and 23-05-2013 to the Complainants.Further, it is the case of the Opposite Parties that the Complainant had to pay interest of Rs.65,948/- as the interest on the delayed payment andRs.16,800/- as the cost of the extra work carried out, maintenance deposit of Rs.10,000/- and for water and electricity connection, Rs.20,000/-.

    

10. It is the case of the Opposite Parties that repeated oral reminders and written intimationon 11-06-2013and 06-08-2013 were handed to the Complainants, however, the Complainant failed to make the payments.Further, it is the case of the Opposite Parties that under these circumstances the Opposite Parties had no option but to cancel the agreement after deduction of Rs.25,000/-as per clause 2(a)ofthe agreement.

     

11. The Opposite Parties sent written note dated 11-06-2013,06-08-2013 letter dated 12-08-2013 and final reminder on16-09-2013 to paythe balance amount of Rs.1,12,748/-which was due and payable out of which Rs.65,948/- is delayed payment interest as per clause 2(a)of the agreement,Rs.10,000/- towards maintenance, Rs.20,000/- towards electricity and water connection, andtowards cost of extra/additionalwork undertaken for the Complainant sum of Rs.16,800/- as on 06-08-2013.

     

12. The Opposite Parties vehemently denied the contents of the complaint and prayedfor dismissal of the complaint.

     

13. Both the parties filed their affidavit in evidence alongwith certified copies of the documents relied.Both the parties also filed written arguments. The Opposite Parties filed questionnaire to Mrs. Antonetta Xavier e Miranda Complainant No.2. and the Complainant No.2 filed reply to the same.

     

14. We have gone through the affidavit in evidence, the questionnaire and the documents filed alongwith pleadings of the respective parties.We have perused the written arguments of both the parties and of Ld. Advocates for both the parties.

     

15. While perusing the records we have observed that it is an admitted fact that an agreement for construction cum sale dated 25-03-2011 was executed between the Complainant and the Opposite Parties in respect of flat No.FF-1 situated on the first floor, Block ‘E’ of the building “Melissa Green Valley” having area of 78 sq.mts. for a total sum of Rs.16,00,000/- payable as perschedule III of the agreement.The Complainant has filed documents in support of his complaint. We have gone through the copy of the agreement filed by the Complainant.

     

16. We find that there is no dispute about the execution of the agreement by both the parties.

     

17. We have observed that it is an admitted fact that Complainants have paid a sum of Rs.16,00,000/- to the Opposite Party No.1 as Proprietor ofM/s Melissa Developers and have issued receipts for the said payment of Rs.16,00,000/-.The same are on record.

     

18. The Complainants have also relied on correspondence between the Opposite Party No.1 and the Complainants.We have gone through the said correspondence produced by the Complainant.We have gone through the letter dated 23-05-2013 which is annexed to the complaintas Annexure “C”.We have observed that the said letter/notice is from M/s Melissa Developers addressed to the Complainant No.1 asking the Complainant No.1 to make payment of the installment amounting to Rs.32,000/- as the flat was ready for handing over possession.Thereafter, we have perused Annexure “B” which is receipt bearing No.749 dated 11-06-2013 issued by Opposite Party No.1 in the capacity of Proprietor of M/s Melissa Developers.While perusing the said letter dated 23-05-2013, we have observed that the letter clearly states “the flat is ready for possession thus you have to pay the installment under serial no.7 amounting to Rs.32,000/-”and service taxof Rs.989/-, altogether the amount demanded by the Opposite Parties is Rs.32,989/-.We have seen that the receipt is issued for Rs.32,000/- as final payment towards the flat No.FF-1 on the first floor, Block E in the project named as Melissa Green Valley.

     

19. From the above, it is crystal clear that thethat the Opposite Parties had no grievance about the delayed payment and the Opposite Party has voluntarily accepted the last payment of Rs.32,000/- towards the flat proposed to be constructed for the Complainants.

     

20. While perusing the records wehave seen the receipt for thefor thepayments made by the Opposite Parties and we are impressed that the Complainants have paid total amount for the cost of the flat, which flat the Opposite Parties were supposed to hand over to the Complainants herein.

     

21. We have observed that the Opposite Party No.1 was supposed to give/hand over possession of the flat in the month of March 2013.However, the Opposite Party has failed to do so although the Complainants have made the payment of the last installment being an amount of Rs.32,000/- to the Opposite Party.Inspite of making the paymenton 11-06-2013, the Opposite Party has failed to hand over possession of the flat to the Complainants.

     

22. While perusing the written version we have observed that the Opposite Parties have stated that the Complainant have delayed the payment of installments to be made towards the construction of the said flat.

     

23. The Opposite Parties also stated in thewritten version that various reminders were sent to the Complainants vide letters however, we do not find any copies of the letters produced by the Opposite Parties onrecord to show that the Complainants have defaulted in payments of the agreed installments.  Therefore, in our view the Opposite Parties have failed to show that the Opposite Parties had sent reminders.

     

24. In the written version the Opposite Parties have stated that they have handed over the flat to a third party and same has been sold to said third party and has filed affidavit of one Shri Devidas Mardolkarwho in hisaffidavit has stated that heis in possession of the said flat from 29-09-2013.However it is pertinent to note that no registered document is produced on record to say thatthe flat has been sold or agreed to be sold to said Devidas Mardolkar.We cannot accept thestatement made on oath by Devidas Mardolkar as gospel truth unless supported by a registered documents.

     

25. We haveobserved that the Opposite Parties have accepted the last installment from the Complainants without any protest.  We are convinced that the Complainants have regularly paid all the installments as agreed upon.We have found that there is deficiency in service by the Opposite Party No.1 as the flat has not been handed to the Complainants as agreed, even after making the total payment for the said flat, the Opposite Parties on one pretext or the other did not hand over the flat to the Complainant.We find no delay withpayments on the part of the Complainants.However,we find that the Opposite Parties tried to delay the handing over possession of the flat to the Complainant and finally tried to deprive the Complaint from taking possession of the said flat on the pretext that the flat was sold to some third party.

     

26. We are of the opinion that after accepting all the payments due under an agreement the Opposite Parties cannot claim and say that there is breach of agreement on the part of the Complainant as the installments were not paid in time.We find the Opposite Parties have not come with clean hands and tried to misguide the Forum bymerely stating that the Complainants have committed default in payment, reminders were sent to the Complainant vide letters, however, the letters are not on record.

     

27. We have also gone through the questionnaire and the replies and haveperused the same.The Opposite Parties have asked for the details of the delayed payments.We find the questionnaire is of no helpto the Opposite Parties as same isbased on delayed payment and the last letter which is marked annexure“C” to the complaint and last receipt issued by the Opposite Party to the complaint which is marked as Annexure“B” is enough to support the contention of the Complainant that they were regular in payments and the payments made by them was accepted by the Opposite Parties.We find that the Opposite Parties have not produced any statement for interest on delay of payment made and have not produced any bills/statement for extra work carried out by them.We find the last letter which is exhibit “C ” to the complaint speaks of only Rs.32,989/-.We have seen the receipt of Rs.32,000/- issued by the Opposite Party which is at annexure ‘B’, however, we find no statementthat the Complainant has not paid Rs.989/- so we presume that Rs.989/- must have been paid in cash.

     

28. In this complaint we have particularly observed that after obtaining the entire payment from the Complainant, the Opposite Parties have come forth with the claim that there was breach of the agreement on the side of the Complainant as the payments weredelayed. While perusing the records we observed that if the possessionof the flat was given to the Complainant on 25-03-2013 the Complainant would have earned a minimum sum of Rs.5000/- if he had given the said flat on rent.Therefore, we feel the Complainant is entitled for compensation of Rs.5000/- per month from 25-03-2013 till handing over the possession.Therefore, the Complainant is entitled for compensation of Rs. One lakh for the period from 25-03-2013 till the date of passing of the order.

     

29. In view of abovewe pass the following order:

     

    ORDER

     

    The Opposite Parties are hereby directed to deliver the said flat  to the Complainants as described in the agreement dated 25.03-2011.  The Opposite Parties shall also pay to the Complainants  a sum of  Rs.1,00,000/- towards compensation,   and the   Opposite Parties are also directed to pay cost of Rs.25,000/- to the Complainant and in the event if the flat is not delivered and compensation is not paid within thirty  days from the date of this order in addition to said compensation the Opposite Party shall pay compensation of Rs.5000/- per month from the date of passing of this order and sum of Rs.1,00,000/- shall bear interest @ 9% per annum till actual payment.

     

       [Shri Jayant S. Prabhu]

                    President

        [Ms. Savita G.Kurtarkar]

                      Member

[Ms. Cynthia Colaco]                                    Member