Per Hon’ble Mr.S.R.Khanzode, Judicial Member
This consumer complaint pertains to alleged deficiency in service on the part of builder –M/s.Bhoomi Castle Construction (herein after referred as ‘builder’) in respect of flat bearing no.1205 situated at Bhoomi Heights constructed by the builder, as more particularly, described in the complaint in para 3(b).
2. It is the contention of the complainant that she and her husband-Pradip Wadivkar through Estate Agent -Mr.Padmakar Tanawade approached a builder and booked two flats bearing nos.1204 and 1205 each having approximately 670 sq.ft. carpet area (saleable area 1110 sq.ft. super built up) @ `4,500/- per sq.ft. The total cost of each flat worked out approximately to `45,00,000/-. Complainant agreed to purchase in her name 1205 and adjoining flat no.1204 in the name of her husband. Complainant paid `4,00,000/- in advance by cheque drawn on Bank of India, Boriwali (west) branch dated 19/11/2009. Thereafter, to raise the necessary funds she sold her flat at Panjim, Goa for `12,00,000/- and, thereafter, when on 14/01/2010 she approached Shri Mehta-partner of the builder to make balance payment and to get execute the agreement, she was advised to make full payment. She, therefore, made preparation to sell her flat at Mumbai and when approached again to the builder, he demanded additional consideration of `1000/- per sq.ft. and that too in cash. Complainant agreed to pay the same but not in cash. Subsequently, she came to know that her flat no.1205 was already sold by the builder. Therefore, ultimately, she filed this consumer complaint inter-alia claiming relief of possession and/or alternatively, another flat of the same area on payment of balance consideration of `41,00,000/-. She further claimed compensation of `5,00,000/- for the inconvenience, harassment, mental agony, stress, etc. and `50,000/- towards costs.
3. The opponent/builder resisted the complaint as per written version dated 16/08/2011 and submitted that complainant and her husband did approach to him along with Estate Agent -Mr.Padmakar Tanawade but according to him since at that time 8th floor slab was already casted, he insisted for at least 50% of the consideration to enter into an agreement. Complainant and her husband sought time of one month and paid `4,00,000/- which with the consent of the complainant kept by opponent as deposit. Complainant and her husband did not approach within one month. Thereafter, on 31/03/2010 complainant’s husband did approach and signed the discharge voucher but since complainant Pradnya was not present for her signature, the cheque of refund was not delivered. Complainant did not approach thereafter but sent a false notice raising a false claim. Sum and substance of the submission of the builder is that the agreement was never concluded in respect of purchase of a flat no.1205 by the complainant and the cheque of refund is still lying with him since the complainant failed to come and collect the same after signing refund receipt, no deficiency in service on their part could be inferred.
We heard both the parties, considered the evidence affidavit of complainant Pradnya and her witness Estate Agent- Mr.Padmakar Tanawade as well as affidavit filed on behalf of the builder of Mr.Shail Mehta and the documents on record relied by both the parties.
In the instant case, complainant tried to get corroboration to her version through the Estate Agent -Mr.Padmakar Tanawade, who sworn affidavit dated 18/03/2011. It is revealed from this affidavit that the complainant did enter into an agreement (which was oral) to purchase a flat no.1205 in BhoomiHeights. Total consideration initially agreed was @ `4,500/- per sq.ft. but later on as per demand of the builder, complainant agreed to pay enhance rate of `5,500/- per sq.ft. The payment of `4,00,000/- made by the complainant on 19/11/2009 is not in dispute. However, according to opponent it was not towards earnest amount or part consideration but by way of deposit towards the intended purchase of flat from its scheme by the complainant. On the preponderance of probabilities, we find that such version by the builder cannot be accepted. Payment is made towards the part consideration of the amount agreed to be payable for purchase of flat no.1205 in question.
As further revealed from the receipt dated 31/03/2010 signed by husband of the complainant, the deal perhaps was called out and the complainant agreed to take refund of the amount paid by her. However, the cheque of refund could not be returned since the complainant herself was not present at that time. The flat according to case of the complainant herself was already sold by the builder. Under the circumstances, what we find is that by way of removal of deficiency, complainant is entitled to compensation to the extent of refund of part consideration of `4,00,000/- and it would be further proper and just to award interest to her @ 18% p.a. w.e.f. 31/03/2010 i.e. the date on which refund receipt was signed by the complainant’s husband. We hold accordingly and pass the following order:-
ORDER
Complaint is partly allowed. Opponent is hereby directed to refund amount of `4,00,000/- with interest @ 18% p.a. from 31/03/2010 i.e. the date on which refund receipt has been signed by the complainant. Rest of the prayers in the complaint are rejected.
Opponent is hereby directed to pay costs of `5,000/- to the complainant.
Pronounced on 22nd October, 2012.
