Complainant through Lrd. Adv. Haider 

Opponents absent (Ex-parte)

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Per : Mr. V. P. Utpat, President              Place   :  PUNE

// J U D G M E N T //

(04/12/2013)

          This complaint is filed by the flat purchaser against the builder and developer for deficiency in service under section 12 of the Consumer Protection Act, 1986.  The brief facts are as follows,

1]       The complainant is a resident of Gunjan Theatre Chowk, Yerwada, Pune – 6.  The opponents are dealing in the business of construction and they are doing their business within the jurisdiction of Pune Municipal Corporation.  The complainant is dealing in the business of fabrications and selling-purchasing of bottles etc.  He has booked a flat no. 20 on 4^th floor admeasuring 1255 sq. ft. in the scheme named as “Manav Blossom”, situated at Sr. No. 43, Kondhwa Khurd, Pune – 48.  At the time of booking i.e. on 6/1/2003, he had paid an amount of Rs. 1,00,000/-.  The total consideration of the flat was Rs. 10,75,000/-.  He had entered into registered agreement of sale on 7/1/2003.   Thereafter the complainant had paid an amount of Rs. 1,75,000/- to the opponent in cash and obtained receipt on 10/1/2003.  It was agreed between the parties that the remaining amount is to be paid by obtaining loan.  Hence, the complainant approached the Manager, Punjab and Sind bank, Pune and loan of Rs. 8,00,000/- was sanctioned.  However, the complainant has received loan of Rs. 5,00,000/- only.  The complainant could not pay installments regularly, hence the bank has filed suit against him for recovery of Rs. 6,77,724/-.  That suit was compromised and the complainant had paid an amount of Rs. 5,59,400/- to the bank and obtained No Dues Certificate on 12/9/2012.  The complainant had done fabrication work for the opponent no. 1 worth of Rs. 3,50,040/-.  The opponent no. 1 had issued two cheques worth of Rs. 2,00,000/- and Rs. 1,50,000/-.   Both the cheques were dishonoured.  Thus, the complainant has paid in all Rs. 10,75,000/- to the opponent, which were agreed by him in the agreement.  During the pendency of the construction, the opponent no. 1 had executed development agreement in favour of opponent no. 2.  Hence, both the opponents are under obligation to fulfill the terms and conditions of the agreement.  The complainant had asked possession of the flat under agreement.  In the alternatively, he has asked refund of Rs. 10,75,000/- along with interest @ 18% and Rs. 1 lac towards compensation for mental and physical agony.

2]      Both the opponents though duly served with the notice remained absent; hence complaint proceeded ex-parte against them.    

3]      Considering pleadings and scrutinizing the documentary evidence, such as affidavit, agreement, receipts and development agreement, the following points arise for my determination. The points, findings and the reasons thereon are as follows-

REASONS :-

4]      It reveals from the documentary evidence, which has been produced by the complainant that the opponent no. 1 had executed agreement for sale to the complainant with respect to flat no. 20 in the scheme named as “Manav Blossom”.  It further reveals from the documentary evidence that the complainant has paid an amount of Rs. 10,75,000/- i.e. amount of consideration, as shown in the agreement.   The evidence, which is adduced on behalf of the complainant in the form of affidavit and in the form of documents, is not rebutted by the opponent.  However, there is no record produced by the complainant before the Forum to show that there was any privity of contract between complainant and the opponent no. 2.  The complainant has asked refund of consideration along with interest alternatively.  In these circumstances, I held that the opponent no. 2 can not be held responsible for performance of the contract on behalf of the opponent no. 1, as there is no privity of contract between the complainant and the opponent no. 2.   The complainant had paid consideration amount after obtaining loan from the bank.  In such circumstances, the complainant is entitled for interest on refund money.  The complainant has satisfactorily proved that the consideration was paid by him and the cheques, which were issued by the opponent, were dishonoured.  I answer the points accordingly and pass the following order.

                                      **  ORDER **

1.                 Complaint is partly allowed against

Opponent No. 1 only.

2.                 The opponent no. 1 is directed to pay an

amount of Rs. 10,75,000/- (Rs. Ten Lacs

Seventy Five Thousand only) to the complainant

along with interest @ 9% p.a. from the date of

agreement i.e. 07/01/2003 till its realization

within six weeks from the date of receipt of copy

of this order. 

3.                 The opponent no. 1 is further directed to pay

an amount of Rs. 50,000/- (Rs. Fifty Thousand

only) to the complainant towards compensation

for mental and physical sufferings and cost of

the proceeding within six weeks from the date

of receipt of copy of this order. 

4.                 Complaint stands dismissed against the

Opponent no. 2.

5.                 Copies of this order be furnished to the

parties free of cost.

                   6.       Parties  are directed to collect the sets,

which were provided for Members within

one month from the date of order, otherwise

those will be destroyed. 

Place – Pune

Date- 04/12/2013