Complainant through Adv. Rajhans
Opponent absent
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Per : Smt. Geeta S. Ghatge Place : PUNE
// J U D G M E N T //
(22/10/2013)
With a view to purchase a flat, the complainant paid the entire cost of the flat to the opponents. But the opponents failed to deliver the possession of the flat to the complainant till today. As a result of which, complainant suffers from the loss. To recover such loss, the complainant filed the complaint. The complaint of the complainant in short is as follows,
1] That, the complainant decided to purchase the flat for her son, who is completing his B.E. course in Sihagad College of Engineering at Yewalewadi. She paid the entire agreed cost of Rs. 21,25,100/- of the flat to the opponents in advance. According to registered “Agreement for sale” between complainant and the opponent, Ackruty Jay Developers, the opponent would delver the possession of the flat in the month of Dec. 2010. After several demands of the copy of agreement for sale by the complainant, the opponent flatly refused the same. And after registration of the agreement for sale, opponent gave the copy of registered agreement to the complainant.
2] The complainant has also mentioned in his complaint that, by sending several letters, opponents were extended to deliver the possession of the flat for the indefinite period of time.
3] The complainant further stated in his complaint that, if the opponents are not able to handover the possession of the flat within stipulated period, they can not compel or force the complainant to rescind the contract or to terminate the agreement, as per clause 19.4 of the agreement for sale. The complainant wants the possession of the agreed flat.
4] Further, it is the contention of the complainant that, due to non delivery of the said flat, the complainant has to spend an amount of Rs. 7,000/- per month towards rental premises for her son. It is also alleged by the complainant that, the opponents have utilized the huge amount of Rs. 21,25,100/- paid by her from 10/2/2010 till today, which compelled her to face the big monetary loss as well as mental agony. According to her contention, opponents have committed breach of contract amounting to severe deficiency in service. And hence, the complainant claimed interest @18% p.a. on Rs. 21,25,100/- and Rs. 7,000/- per month from 10/02/2010 till the date of delivery of flat, charges according to the terms of clause 19.3 of agreement for sale, compensation for mental torture, i.e. total 15,78,824/- plus legal charges and the future compensation from the opponents.
5] Complainant filed her complaint along with the affidavit and in support of the complaint, necessary documents.
6] Even after proper service of notices to the opponents, no one is present before the Forum in this complaint or filed written version in their defense. Hence, the matter is proceeded ex-parte against the opponents.
7] After considering the statements and allegations made in the complaint and the documents produced in support of these contentions in claim affidavit, the following points are raised before the Forum for consideration.
Points, reasons and the findings thereon are as follows,
Sr.No. | POINTS | FINDINGS |
1. | Whether the opponents are held to be liable for the deficient service? | Yes |
2. | What order? | As per final order. |
REASONING POINT NO. 1 :-
8] It is the contention of the applicant that she has paid entire agreed cost of Rs. 21,25,100/- of the said flat to the opponents in advance. In support of this statement, complainant has produced the certified copy of the registered agreement for sale dated 10/2/2010. After perusal of clause 3.4 of this deed, it is clear that, it was agreed between the complainant and the opponent no. 1 that complainant shall pay an aggregate sum of Rs. 21,25,100/- being the total consideration of the flat. Complainant has also produced before the Forum, the receipts of following amounts, paid to the opponent.
Sr. No. | Amount in Rs. | Date |
1. | 21, 000/- | 25/12/2009 |
2. | 2, 97, 765/- | 29/12/2009 |
3. | 18, 06, 335/- | 10/02/2010 |
TOTAL | 21, 25, 100/- | |
From this it is crystal clear that the complainant has paid agreed cost of Rs. 21,25,100/- of the said flat to the opponent no. 1 and from this, the Forum come to the conclusion that, it is proved that the complainant has paid entire agreed amount of Rs. 21,25,100/- to the opponents in advance.
9] The description of the flat mentioned in the complaint is also the same as described in clause 3.1 of the registered agreement for sale.
10] Another important allegation of the complainant is that the opponents have not delivered the possession of the said flat within stipulated time and they are prolonging it till filing the complaint. In support of her allegation, she submitted letters dtd. 17/01/2011, 04/08/2011, 22/10/2011, 10/04/2012 and 24/05/2012 send by the opponent Ackruti Jay Developers and also the notices send by the complainant through her Advocate to the opponent dtd. 24/08/2012, reminder notices dtd. 3/11/2012 and 18/12/2012. From the contents of the above letters and notices, it is the conclusion of the Forum that the said flat is not handed over to the complainant till today, in spite of full agreed payment of the agreed cost of the flat.
11] It is also mentioned by the complainant that due to non delivery of the flat, she has to pay Rs. 7000/- as a rent for the accommodation of his son. But she does not produce any evidence about the said rent, but as this statement was not struck off by the opponent, Forum has no hesitation to accept it.
12] According to the opinion of the Forum, it is also important to note in this matter that, in spite of proper service of notice, providing chance to defend themselves, no opponent is present before the Forum to struck off the allegations made by the complainant. They avoided to exercise their legal right of defending themselves. And such attitude of the opponent give strong support to the allegations made by the complainant.
13] So, from the above all, it is proved before the Forum that opponents have provided severe deficient service to the complainant.
14] From the above discussion and the conclusions, it is the opinion of the Forum that, the opponents can not compel the complainant to terminate the agreement. And as they never remained present in this matter, they failed to prove the contents in their letters dtd. 17/01/2011, 04/08/2011, 22/10/2011, 16/04/2012 and 24/05/2012 regarding the shortage of construction raw materials and laborers, which has resulted in unavoidable delays in completion of the construction.
Hence, from the above discussions and the conclusions, opponents are held liable for the severe deficient services. So, finding of the point no. 1 stands positively.
15] REASONING POINT NO. 2 :-
A] Complainant has claimed in his complaint Rs. 20/- per sq. ft. per month from 10/02/2010 till 31/10/2012 for the area of flat admeasuring 669 sq. ft. according to clause 19.3 of the registered agreement. But according to the opinion of the Forum, this clause is applicable in case of failure of payment by the purchaser. So, the term in this clause can not be applicable in this case. So, this claim of the complainant is not accepted by the Forum.
B] Complainant has also asked for the reimbursement of the rental amount @ Rs. 7000/- per month from Dec. 2010 till 31/10/2012. As in point no. 1, forum has accepted that due to non delivery of the flat, in spite of full payment of the cost in advance, complainant has to pay rent of Rs. 7000/-. It is the opinion of the Forum to allow the amount of Rent of Rs. 1,54,000/- to the complainant.
C] From the discussion and conclusion in point no. 1, it is clear before the Forum that due to severe deficient service given by the opponents, complainant has to face the pecuniary damages as well as mental agony. So, it is also proper and legal to allow the compensation of Rs. 10,000/- as pecuniary damages and legal cost and cost for the complaint of Rs. 5,000/-.
** ORDER **
1. Complaint is partly allowed.
2. Opponents are directed to pay rent amount
of Rs. 1,54,000/- (Rs. One Lac Fifty Four
Thousand only) to the complainant along
with Rs. 10,000/- (Rs. Ten Thousand only)
for pecuniary damages and Rs. 5,000/-
(Rs. Five Thousand only) for the legal cost
and cost of the complaint within 6 weeks
from the date of receipt of copy of the order.
3. Copies of this order be furnished to the parties
free of cost.
4. 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- 22/10/2013
