PRESENT

Complainant by Adv. Poonam Makhijani present.

Opponent Ex-parte.

                    ORDER

( Per- Shri. S.Z. PAWAR, Hon’ble Member )

1. This is a complaint under section 12 of the Consumer Protection Act, 1986 alleging deficiency in service and unfair trade practice against the opponent. The case of the complainant stated in short is as follows.

2. The opponent is the proprietary concern and Mr. Sameer Sapat is the proprietor of the opponent having address mentioned in the title cause.

3. The opponent declared a scheme of constructing residential flats in respect of plot situated at shahad in village kamba bearing survey no. 17/6 (here in after referred to as said building ). The building was to be constructed in phases. On the basis of representations and assurances given by the opponent, the complainants on 20.07.2014 agreed to purchase 1 BHK comprising of 350 sq.fts. in phase II for total consideration of Rs.4,50,000/- ( Rs.Four Lakhs Fifty Thousand only ) . The opponent agreed to hand over possession on or before June 2015. Accordingly, from time to time as per demand of the opponent, the complainant paid an amount of Rs. 4,01,525/- (Rs.Four Lakhs one thoussand five hundred twenty five only) in between 20.07.2014 and 09.01.2016 as mentioned in the complaint. However , the opponent failed and neglected to execute stamped and registered agreement with the complainant and merely issued one confirmation note confirming the allotment of flat of 350 sq.fts.

4. In the month of December 2014, it was surprise to the complainant to see that there was no construction at all and till date the opponent has not given possession. This shows that there is deficiency in service and unfair trade practice on opponent’s part. Since the huge amount of the complainant is blocked with the opponent, he is not able to purchase any other flat. The opponent by its acts and omissions has caused a lot of physical inconvenience, mental agony and harassment to the complainant. The complainants with other complainant has filed police complaint against the opponent. Hence the present complaint for reliefs that (i) to hold and declare the opponent to be guilty of deficiency in service and unfair trade practice, (ii) to direct the opponent to handover possession of flat admeasuring 350 sq.fts. as per agreement Or alternatively to direct the opponent to refund the sum of Rs.4,01,525/- (Rs.Four Lakhs one thoussand five hundred twenty five only) with interest at the rate of Rs.21 % to the complainant, (iii ) to direct the opponent to pay compensation of Rs.1,00,000/- (Rs.One Lakh only ) for mental agony caused to the complainant and (iv) to pay legal charges of Rs. 50,000/-(Rs.Fifty Thousand only) as incurred by the complainant.

5. Though duly served with complaint notice as per track report dated 23.10.2016, the opponent failed to appear and file it’s Written Statement. Hence the complaint is proceeded ex-parte against the opponent, vide Roznama dated 21.06.2017.

6. The following points arose for our determination and we have noted our findings against them for the reasons to follows.

Points Findings

1. Is it proved by the complainant that

there is deficiency in service and unfair

trade practice on the part of opponent ? Yes.

2. Is the complainant entitled to get

reliefs as prayed for ? Partly Yes.

3. What order ? As per final order.

REASONS

7. We have heard ld. Adv. for the complainant. Since the complaint is proceeded ex-parte against the opponent, the complainant filed his affidavit of evidence. On going through the said affidavit of evidence, it appears that it is either in consonance with or reproduction of , the complaint. Besides, the complainant has filed following documents in support of their case stated in the complaint;

Namely-

1. Copy of Phmphlets and also copy of advertisement news paper.

2. Copy of agreement dated 20.07.2015

3. Copy of receipt about 19 in number in between 20.07.2014 and

09.01.2016 for total amount of Rs.4,01,525/-.

8. Considering the evidence by way of an affidavit and documents produced by the complainant, we find that the opponent declared a scheme of constructing residential flats in respect of plot situated at Shahad in Village Kamba, that the complainant on 20.07.2014 agreed to purchase 1 BHK Flat comprising of 350 sq.fts. in phase II for total consideration of Rs.4,50,000/- ( Rs.Four Lakhs Fifty thousand only ) , that the opponent agreed to handover possession of the flat on or before June 2015, that the complainant paid Rs. 4,01,525/- (Rs.Four Lakhs one thoussand five hundred twenty five only) to the opponent in between 20.07.2014 and 09.01.2016 by way of cheques except the amount of Rs.21,000/- ( Rs.Twenty one thousand only) on 20.07.2014 , Rs.9,315/-(Rs. Nine thousand three hundred fifteen only), on 23.05.2015 Rs.9,400/- (Rs. Nine thousand four hundred only), on 8.8.2015 Rs.10,000/- (Rs. Ten thousand only), on 02.11.2015 Rs.9,000/-(Rs. Nine thousand only), on 09.01.2016 given by cash for which the opponent has issued receipts in favour of the complainant. That the opponent failed to execute stamped and registered agreement in favour of the complainants but merely issued confirmation note , that the opponent failed to construct the flat and hand over the same to the complainants till June 2015 and that even till date the opponent has not given possession of the flat to the complainants . This evidence adduced by the complainant remained unchallenged on record as the complaint is proceeded ex-parte against the opponent We there fore hold that there is deficiency in service and unfair trade practice on the part of opponent and for the same reason the complainants are entitled to get possession of the flat admeasuring of 350 sq.fts. in the said building in phase II as agreed. If it is not feasible to hand over possession of the flat agreed, the opponent is liable to refund the amount of Rs.4,01,525/- (Rs.Four Lakhs one thoussand five hundred twenty five only) to the complainant together with interest at the rate of Rs.9 % p.a. in lieu of compensation. The complainant are also entitled to get Rs.20,000/-( Rs.Twenty Thousand only ) towards mental agony and to get Rs.7,000/- towards the l egal charges of the complaint. Accordingly, we noted our findings against the point no. 1 in the affirmative and against the point no. 2 in the partly affirmative.

9. In the result, the complaint deserves to be partly allowed. Hence we proceed to pass the following order.

                                ORDER

1. The Consumer Complaint No. 584/2016 is hereby partly  allowed.

2. It is hereby declared that there is deficiency in service and unfair trade practice on the part of opponent.

3. The opponent is directed to hand over possession of the flat admeasuring 350 sq.mts. to the complainant as agreed upon

    with compensation for delayed possession from June 2015 with interest at the rate of 9 % p.a. on the amount of Rs.4,01,525/-

    (Rs.Four Lakhs one thoussand five hundred twenty five only) till actual possession is given.

                                  OR

     return the amount of Rs.4,01,525/- (Rs.Four Lakhs one thoussand five hundred twenty five only) with interest at the

     rate of 9 % p.a. from 01 June-2015 till actual payment is made.

4. The opponent is also directed to pay to the complainant Rs.20,000/- ( Rs.Twenty Thousand only ) towards mental agony

     suffered by them and Rs.7,000/-(Rs.Seven Thousand only )  towards cost of the Complaint within three months from the

     date of this order.

     Otherwise the amounts will carry interest at the rate of 9 % p.a.

5. Copy of this order be sent to the parties free of cost and Without delay.