ORDER

(Passed on 28/09/2018)

PER SHRI.ATUL D.ALSI, PRESIDENT.

The complainant has filed this complaint U/s 12 of the Consumer Protection Act,1986 for breach of agreement for allotment of flat        and praying for refund of money paid alongwith interest and further claiming compensation and cost of proceeding.

2.     The facts in nutshell are that the complainant entered into an agreement with the Opposite party on 10/12/2012 for purchase of flat bearing No.T/3-A-201 in their scheme at Mouza Datala, District Chandrapur for the price of Rs.13,95,000/-. He paid Rs.2,79,000/- to the OPs by instalments. The apartment was to be constructed within a period of two years from the agreement. After completion of two years the OPs failed to construct and allot flat as per agreement. On the other hand, the construction of the building was carried by another builder at the given site. Therefore, the complainant lodged a criminal complaint with the police. The complainant issued  legal notice through advocate Mr.P.C.Khajanchi on 13/1/2015. The notice was not claimed. Therefore, it amounts to valid service. Evern after repeated oral and written requests, the OPs failed to construct the apartment and also to refund the money. Therefore the act of OPs amounts to deficiency in service. Hence, the complainant has filed this complaint.

3.     The complaint is admitted and notices were served on the OP No.1 & 2. However, inspite of service of notice both the OPs  did not appear before the Forum nor they filed any reply to the complaint. Hence the case proceeded exparte against both the OPs. 

4.      Counsel for the complainant argued that the complainant has filed on record receipts for payment of Rs.2,79,000/- towards earnest money and installments vide Exh.No.C/5(1) to C/5(7), the copy of agreement dated 10/12/2012 is filed at Exh.C/5(8), copy of FIR is filed at Exh.C/5(9), and copy of legal notice issued to the OPs is filed at Exh.C/5(10). He submitted that evern after receipt of notice, the OPs failed to construct the flat or to refund money. Therefore, the petition may be allowed.

5. We have gone through the complaint,  affidavit, documents and WNA filed by the complainant. We have also heard the oral arguments advanced on behalf of the complainant.

                    Points                                                   Finding

1. Whether the complainant is a Consumer ?               Yes

2.  Whether  there is deficiency in service on

     the part of OPs ?                                                    Yes

3.  What order ?                                                                As per final order..

As to issue No.1

6.      The complainant has filed on record agreement to sale of flat executed between him and the OPs and also the receipts showing payment of Rs.2,79,000/- by the complainant to the OPs towards purchase of flat.  When there is an agreement between the parties for the execution of sale deed of the flat, the complainant is a consumer within the meaning of Section 2(1)(d) and the services as promised are the services within the meaning of section 2(1)(d)(ii) of CP act. and hence the issue is decided accordingly.

As to issue No.2

7.       the complainant entered into an agreement with the Opposite party on 10/12/2012 for purchase of flat bearing No.T/3-A-201 in their scheme at Mouza Datala, District Chandrapur for the price of Rs.13,95,000/-. He has also filed on record receipts showing payment of Rs.2,79,000/- to the OPs towards earnest money and installments for purchase of said flat. The copy of the FIR lodged by the complainant with the City Police Station, Chandrapur vide Crime No.218 dated 14/8/2014 is also on record which shows that a crime U/s 420/409 written with Section 34 of IPC is registered against the OPs for cheating, criminal breach of trust for dishonour of cheque issued by the OPs for refund of earnest amount of the flat. The OPs received the amount in the month November, 2012 but failed to construct and allot the flat as per agreement. The OPs failed to communicate to the omplainant that the construction could not be completed within reasonable time due to reasons beyond his controll. On the other hand, there is no attempt on the part of OPs to refund the amount received as earnest money towards flat. The OPs failed to refund the earnest amount as the cheque issued by him towards refund of earnest money was dishonoured. The OPs have failed  to deliver the possession of subject apartment to the complainant almost for more than four years from the expiry of stipulated period of delivery of possession. Hence the OPs are under the obligation to refund the earnest amount alongwith interest for the period for which the amount was enjoyed by them besides compensation and cost.  

As to issue No.3

8.        In view of our observations as above, we pass the following order..

Final order

      1. The Complaint is partly allowed.

2. The OP Nos.1 & 2 are directed to refund Rs.2,79,000/- to the   complainant alongwith interest @12 % p.a. from the date of admission of complaint i.e. 5/7/2016 till realization of entire amount.

3. The OP Nos.1 & 2 shall also pay to the complainant Rs.10,000/- towards compensation and cost of Rs.10,000/-.

4.  Copy of the order be furnished to both the parties free of cost.

(Smt.Kalpana Jangade (Kute) (Smt.Kirti Vaidya (Gadgil)   (Shri.Atul D.Alsi)

               Member                                 Member                                  President