Per Mrs.S.P.Lale, Hon’ble Member
Complainant –Ms.P. Mangala filed this complaint against Mr.Sandesh Govind Bhatte and Mrs.Sandhya Sandesh Bhatte for deficiency in service. Complainant has prayed for possession of the flat and execution of conveyance deed in favour of the complainant along with cost and compensation. Details of the complaints are as under:-
Complainant Ms.P Mangala agreed to purchase a flat no.6 admeasuring 300 sq.ft. in the building known as “Sandesh’ in the year 2000. Accordingly, Agreement for sale was executed between the parties on 18/12/2000. O.Ps agreed to hand over possession of the said flat after receipt of total consideration amount of Rs.2,25,000/-. Complainant paid total consideration amount of Rs.2,25,000/- to the O.Ps on 18/12/2000. According to complainant, O.Ps willfully delayed giving possession of the flat to the complainant even after accepting full consideration amount on 18/12/2000. Complainant stated that after constant persuasion with O.P. on 05/3/2001 with the intervention of the relatives and friends, O.Ps consented that they will give compensation of Rs.11,25,000/- to the complainant, as they failed to give possession of the said flat to the complainant. Therefore, O.Ps issued cheque no.991384 dated 05/3/2001 for Rs.2 lakhs in favour of the complainant and balance amount was agreed to be paid within six months thereof and O.Ps further agreed to cancel the agreement dated 18/12/2000. However, said cheque of Rs.2 lakhs was dishonoured by the bank for “insufficient fund”. Thereafter, complainant further waited for six months for balance refund of the amount, but O.Ps did not turn up to pay the said amount to the complainant. Therefore, complainant lodged Criminal complaint bearing no.3867 of 2001 before the Chief Judicial Magistrate at Thane on 31/10/2001. After filing of criminal complaint, O.Ps once again approached the complainant and requested the complainant to withdraw the said complaint against the O.Ps. On 25/2/2005, O.Ps agreed for settlement of the claim of the complainant and requested that said Sandesh building was under redevelopment and the O.Ps agreed to offer flat under redevelopment and/or agreed to pay Rs.22,23,750/- to the complainant and executed Memorandum of Understanding (MOU) on 30/3/2005, wherein O.Ps agreed to give a flat with carpet area of 900 to 1350 sq.ft. to the complainant in the proposed redevelopment scheme. Unfortunately, once again the said criminal complaint was withdrawn by the complainant against the O.Ps and O.Ps willfully with ulterior motive avoided to keep their promise as per Memorandum of Understanding dated 30/3/2005. Therefore, complainant was constrained to file this consumer complaint before this Commission against the O.Ps, and complainant prayed for following reliefs:-
“a) That the opponents be directed to remove the defects immediately by executing the Conveyance deed/Sale deed and other relevant documents including handing over the possession of a flat of 900 to 1350 sq.ft. carpet, as per the agreement for sale and its addendums/ as amended per their MOUs of 30th March 2005, as appended herein above, with adequate refund and compensation for harassments with delayed possession and increased cost of operations during the last 96 months.
b) That the opponents be directed, if it is absolutely not possible to handover the physical possession of the flat with all its proprietary documents within the next three months in the REDEVELOPED building now, then, they should compensate the complainant with a like flat of same size (900 to 1350 sq.ft.-carpet) in the same vicinity or pay Rs.49,30,125/- (Rupees Forty nine lakhs thirty thousand one hundred and twenty five only) plus interest @ 2% (two percent per month) from the date of filing this complaint until factual payment, as per the claim bill attached herewith per Annex-D & page No.19 & hence, corresponding fees against this complaint is being paid per Bank of Maharashtra, Mumbai, pay order no.615742 of 24th December 2008 for Rs.2000/- (Rupees two thousand only).
c) To pay adequate compensation for continuous harassment, emotionally, financially, mentally and physically coupled with agony for the past 96 months.
d) To pay Rs.20,000/- (Rupees twenty thousand only) being the cost of this litigation.
e) Any other appropriate relief/s including INTERIM reliefs, that this Hon’ble Court may deem fit and proper in the facts and circumstances of this case.”
Complainant filed affidavits and relevant documents in support of her claim and also filed written notes of arguments. O.Ps were duly served with the notice but the packet returned with the remark “Left”. Complainant had published a notice in the newspaper dated 18/11/2009 In Kokan Sakal. Opposite Party is resident of Andheri. However, notice is published in Kokan Sakal and that too in edition published in Thane only. This edition of newspaper is not circulated in the area where respondent resides. Therefore, the complainant was directed to republish the notice in the newspaper, which is widely circulated in Andheri particularly in the area where respondent resides. Therefore, complainant published public notice in the leading newspaper ‘Dainik Sagar’ on 15/2/2010. In spite of public notice, no one appeared on behalf of the O.Ps. Therefore, matter is proceeded ex-parte in absence of O.Ps. O.Ps are to be treated as served.
Perused copy of complaint, agreement of sale dated 18/12/2000 and MOU dated 30/3/2005. Complainant also placed on record receipt of payment of Rs.2,25,000/- and copy of dishonoured cheque of amount of Rs.2 lakhs. After perusing the said documents, it is observed that this is a clear cut case of deficiency of service on the part of the O.Ps. O.Ps even after accepting the full consideration amount in the year 2000 failed to hand over possession of the flat of 300 sq.ft. in the building known as ‘Sandesh’ to the complainant, which is also an unfair trade practice as defined under section 2(1)(r) of Consumer Protection Act, 1986. O.Ps also did not adhere to the Memorandum of Understanding dated 30/3/2005, wherein they have agreed to give a flat of total carpet area having 900 to 1350 sq.ft. in place of 300 sq.ft. in the proposed redevelopment of the building known as Sandesh. O.Ps have willfully breached the contract and not followed due process of law and, therefore, O.Ps are liable under section 2(1)(g) & (o) and section 14(b)(d)(e)(f). O.Ps have also made complainant run from pillar to post to get possession of the flat and O.Ps have used complainant’s hard earned money for nearly 10 years and still failed to hand over the possession and failed to refund consideration amount as agreed in the Memorandum of Understanding dated 30/3/2005. Therefore, O.Ps are also liable to pay compensation to the complainant for mental agony and harassment an amount of Rs.50,000/-. In the result, we pass following order:-
ORDER
1. Complaint is allowed.
2. O.Ps are directed to hand over possession of the flat having carpet area of 900 to 1350 sq.ft. in the redevelopment property as agreed in the Memorandum of Understanding dated 30/3/2005.
OR
In the alternative, if it is absolutely not possible to hand over physical possession of the flat with all its proprietary documents, then O.Ps should compensate the complainant by giving other flat of the same size of carpet area 900 to 1350 sq.ft. in the same vicinity.
OR
To pay Rs.49,30,135/- market value of the flat to the complainant.
3. O.Ps are further directed to execute conveyance deed immediately and should make him available copies of Occupation Certificate and Completion Certificate, if possessed, immediately duly issued by the Local authority or within a period of six months.
4. O.Ps are jointly and severally directed to pay Rs.50,000/- to the complainant
towards mental agony and Rs.5000/- towards cost of the proceeding.
5. O.Ps are directed to comply this order within 30 days from receipt of order from this Commission.
6. Copies of the order be furnished to the parties.
