O R D E R

(8^th March 2011)

HON'BLE MEMBER : SMT. JYOTI IYER

1. This complaint has been filed by the Complainant against the Opponent builder and developer for failing to execute the agreement of a Room within one month despite handing over the entire consideration money and further for failing to give possession of the room within six months from the receipt of payment and thereby for holding the Opponent builder for deficiency in service and unfair trade practice and further for directions to the Opponent builder to refund the full consideration of Rs.90,000/- to the Complainant alongwith interest @ 18% p.a from the date of receipt of payment until realization of the payment and to pay the Compensation of Rs. 50,000/- for mental agony etc, and cost of complaint to the Complainant.

2. The facts of the case in a nutshell are as follows:-

It is the case of the Complainant that the Opponent builder and developer working in the name and style of “Sai Samarth enterprises and fabricator” verbally promised to execute the agreement in the respect of room purchased in a chawl to be constructed by the Opponent builder on Bhoir Chawl. The Complainant further contends that on 25/05/2009 the amount of Rs.10,000/- was handed over to the Opponent, on 06/07/2009 amount of Rs.10,000/-, on 13/07/2008 amount of Rs.20,000/-, and on 05/02/2009 amount of Rs.50,000/-. The entire consideration of Rs. 90,000/- has been paid by the Complainant to the Opponent, however despite that the Opponent has failed to execute the agreement till date and also fail to give the possession of the room within six months after receipt of money till date. The Complainant further avers that the Opponent builder offered the alternative new room in his another construction

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however since it was not suitable to the Complainant he demanded back the sum paid to the Opponent builder towards consideration for the purchase of the room. The Opponent builder thereafter issued two cheques bearing no. 125069 dtd.16/11/2009 of Rs.50,000/- and cheque no. 125068 dtd.17/11/2009 of Rs.40,000/- drawn on The Hindustan Co-operative Bank Dombivali(w) Branch standing in the name of the Complainant. On depositing the said cheques, same were returned on 19/11/2009, 10/12/2009 respectively by the Bank Maharashtra, Ranade Rd., Branch with the reason 'funds insufficient', despite bringing it to the notice of the Opponent builder that the said cheques issued by him were dishonoured he failed to make the payment till date to the Complainant. The Complainant was therefore constrained to hire a flat on leave and licence and pay heavy licence fees etc. and had to go through a lot of physical and mental stress. His wife also being pregnant had to go through immense stress. As despite receiving notice dtd.02/02/2010 requesting the Opponent builder to comply with the requisition in the said notice however in vain, therefore, the present complaint has been filed by the Complainant for the aforementioned reliefs.

3. Pursuant to the issuance of notice, neither the Opponent builder nor his Advocate appeared despite being in receipt of the notice of this Hon'ble Forum. However as a abundant piece of precaution this Hon'ble Forum directed the Complainant to go for publication in 2 Newspapers, as per the directions of this Hon'ble Forum. The Complainant published public notice regarding filing of this present complaint before this Forum against the Opponent builder in two newspapers Kokan Sakal dtd.04/07/2010 (pg.5) and Thane Vaibhav dtd.17/08/2010 (pg 2). The said public notice in the above mentioned published newspapers are filed on record. However in vain. Hence on 13/04/2010 an exparte order was passed against the Opponent builder.

4. We heard the Ld. Advocate for the Complainant at length and also perused the record. The Complainant has filed the following documents in support of this contentions raised in the complaint which are hereunder:-

1.Cash/Bank vouchers dtd. 25/05/2008, 06/07/2008, 13/07/2008, 05/02/2009 collectively at Annexure A – A3.

2.Xerox of cheques given by Opponent at Annexure B

3.Return Memo of Bank of Maharashtra at Annexure C – C1.

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4.Notice dtd.16/12/2009 at Annexure D

5.Return envelope and receipt of Courier at Annexure E -E1.

6.Notice dtd.02/02/2010 and acknowledgment of courier at Annexure F – F1.

5. On careful perusal of the above referred said documents it is clear that the Complainant had paid consideration of Rs. 90,000/- towards the purchase of room as reflected in the said receipt at Annexure A2, A3. Further it is pertinent to note that the two cheques dtd.16/11/2009 and dtd.17/11/2009 issued in the name of the Complainant for Rs.50,000/- and Rs.40,000/- respectively confirmed the transactions between the present parties before us. And the receipt at Annexure C which is the memo issued by the Bank of Maharashtra for return of the above referred two cheques issued by the Opponent builder for insufficient funds in his account. From this it is clear that the Complainant has not received the sum of Rs.90,000/- paid towards the purchase of the room to the Opponent. It is also pertinent to note that the documents at Annexure “D” and Annexure “E1” and Annexure “F- F1” referred above also indicate that despite receipt of the said notice the Opponent builder has neither replied nor complied with the requisitions in the said notice as he wants to usurp the amount paid by the Complainant. It is pertinent to note that as per the provision of MOFA 1963 Section 4 of the said act provides that after receipt of 20% of the amount of consideration the Opponent builder has manditorily a statutory obligation is cast upon the builder him to execute the agreement and register the same .The Opponent builder in the instant case in hand despite receiving the entire amount has failed to execute the agreement hence he is guilty of not fulfilling the statutory provisions prescribed under the MOFA 1963. In the instant case the Complainant contends that no possession has been given as promised within the period of 6 months after receiving the agreed consideration between the parties. The Opponent builder would be guilty of deficiency in service as well as unfair trade practice as contemplated in under Consumer Protection Act 1986. However it is also pertinent to note that the Opponent builder replied to the above referred notice issued to him by the Complainant's Advocate nor remained present before this Forum to contravene the allegations against him. Hence we have no hesitation in concluding that the version of the Complainant is correct as it is supported by cogent evidence on record.

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6. In view of the above discussion we find substantial force and truth in the contentions raised by the Complainant. We also have no doubt in our minds that the aforesaid conduct of the Opponent builder of failing to execute the agreement and so also failing to give possession of the room to the Complainant within the stipulated period of six months after receipt of full consideration and thereby failing to refund the consideration of Rs. 90,000/- must have caused immense mental agony and torture to the Complainant and his family in various forms as stated by the Complainant and further that the Complainant was so much so constrained that for redressal of his grievances he had to knock the doors of this Hon'ble Forum. Hence we are of the well considered view that the Complainant needs to be compensated for the same to achieve the ends of justice in view of the deficiency in service and unfair trade practice by the Opponent builder.

7. In view of the above discussion we have no hesitation in holding the Opponent guilty for deficiency in service and unfair trade practice. Hence the following order:-

O R D E R

1. Complaint no. 69/2010 is allowed in the following terms:-

2. Opponent is directed to refund Rs.90,000/-(Rs. Ninety Thousand Only) to the Complainant alongwith interest @ 12% p.a from the date of receipt of the payment until realization.

3.Opponent is directed to pay Rs.20,000/-(Rs.Twenty Thousand Only) towards mental agony and torture.

4.Opponent is directed to pay Rs.5,000/-(Rs. Five Thousand Only) towards cost of litigation.

5. Opponent is directed to comply with the above order within 4 weeks from the date of order.

6. Copies of this order be sent to both the parties free of cost.

THANE

DATE : 08/03/2010

(JYOTI IYER) (M.G.RAHATGAONKAR)

MEMBER PRESIDENT