Complainant present through Lrd. Adv. Patil
Opponent absent
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Per : Mr. V. P. Utpat, President Place : PUNE
// J U D G M E N T //
(28/03/2014)
This complaint is filed by the flat purchaser against the builder and promoter 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 Kasba Peth, Pune. The opponent is doing construction business at Shivtirth Nagar, Paud Road, Kothrud, Pune. In the year 2007, the opponent has started construction activity at C.T.S. No. 1333 & 1334 at Kasba Peth, Pune on the land owned by one Mr. Shivajirao Sopanrao Paigude, Smt. Indumati Shankar Pavale and Shri. Prasad Shankar Pavale under the registered development agreement dated 21/11/2006. The complainant was in search of small residential flat for self accommodation. The opponent offered flat no. 1 on the first floor admeasuring 400 sq. ft. for Rs. 4,48,000/-. The complainant has made initial payment of Rs. 35,000/- on 3/4/2008 by issuing cheque. On 8/4/2008 agreement was executed between the parties and registered at Haveli No. 10. The complainant had agreed to purchase flat no. 1 admeasuring 400 sq. ft. for Rs. 4,48,000/-. On 3/5/2008, the opponent demanded an amount of Rs. 52,000/- and that was paid by issuing cheques. Then the opponent has demanded various amounts from time to time. The complainant paid amounts and obtained receipts. In all the complainant had paid an amount of Rs.4,08,000/-. The opponent has assured that the flat will be completed within two months and at that time balance amount of Rs.40,000/- was to be paid. However, there was no progress on behalf of the opponent for handing over the possession of the flat. Ultimately, the complainant had issued notice to the opponent on 21/5/2012, but notice was returned back. Again the notice was issued to the opponent but no acknowledgement receipt was received by the complainant. Thus the complainant has decided to file the present complaint against the opponent. He has prayed for possession of the flat after payment of Rs. 40,000/-. In the alternatively refund of consideration along with interest and difference in the price. The complainant has also asked compensation of Rs. 5 lacs for mental and physical sufferings.
2] The opponent though duly served remained absent. Hence the complaint proceeded ex-parte. The complainant has filed affidavit in support of the contentions in the complaint. He has also filed notes of argument and all the relevant documents, as regards the transaction between the parties.
3] On careful scrutiny of the documents i.e. registered agreement, receipts issued by the opponents, it reveals that the opponent has caused deficiency in service by not fulfilling the terms and conditions of the agreement. It is crystal clear from the record that the complainant has paid Rs. 4,08,000/- to the opponent and the complainant is always ready and willing to pay balance amount of Rs.40,000/-. Even though the date of delivery of possession is already over, the opponent has failed to comply the terms and conditions of the agreement and that amounts to deficiency in service. Hence, it is the opinion of this Forum that the complainant is entitled for the possession of the flat. In the alternative, the complainant is entitled to receive refund of money along with interest, which was paid by her. She is also entitled to receive compensation on the ground of mental and physical suffering and costs of the litigation. In the result, this Forum pass the following order.
** O R D E R **
1. Complaint is partly allowed.
2. It is hereby declared that the opponent
has caused deficiency in service by not
delivering possession of the flat as per
terms and conditions of the agreement.
3. The opponent is directed to deliver the
possession of the flat in dispute to the
complainant, within six weeks after
payment of Rs. 40, 000/- (Rs. Forty
Thousand only) made by the Complainant.
4. On failure to deliver the possession of the
flat, the complainant is at liberty to recover
refund of Rs. 4,08,000/- (Rs. Four Lacs
Eight Thousand only) along with interest
@ 9% p.a. from the date of filing of the
Complaint till its realization.
5. The complainant is entitled for Rs.10,000/-
(Rs. Ten Thousand only) on the ground of
compensation for mental and physical
sufferings and cost of the litigation within
six weeks from the date of receipt of copy
of this order.
6. Copies of this order be furnished to
the parties free of cost.
7. 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- 28/03/2014
