PRESENT

                   Complainant by representative Shri. Rajan Badle present.     

                    Opponent by Adv.Wankhede  present.            

ORDER

(Per- Mr. S. D. MADAKE, Hon’ble President.)

1.                The complainant filed present complaint under section 12 of C.P.Act,1986 against M/s.Nanak Properties opponent no.1 and one of the director opponent no.2 for deficiency in service in housing construction.

2.                The complainant stated that he booked flat in 901 and 902 in the project “PALAZZO” of opposite parties relying on new paper Advertisement dated 19/03/2009( Mumbai Mirror) assuring to handover possession in four months.  He stated that as per agreement dated 12.05/2009, opponent agreed to give possession on or before September-2009 but possession was not given as per agreement. The possession of  flat no.901 and 902 was given on 01/06/2011 and 01/08/2011 respectively.

3.                The complainant  stated that he contacted Mr.Nipun Mehta, who assured to give possession by March-2010. He shifted family to Kharghr relying on the assurance of said Mr.Nipun Mehta, took admission of children at Kharghar and his wife obtained leave for two years. He had to take alternate premises on leave and license on payment of Rs.1,50,000/- as deposit and Rs.15,000/-as license fee per month in addition to transportation charges for school.

4.                The complainant stated that opponent sent allotment letter  on 16/05/2011 for car parking for which he had to pay Rs.2,00,000/-. He alleged further that even at the time of handing  over  possession, occupation certificate was not obtained and back-up generator was not installed.

5.                The complainant alleged that, he was subjected to inconvenience due to the fact that he is handicapped and his parents  are 75 years old. He alleged that opponents constructed illegal floors nos.12 to 16.

6.                The complainant prayed for compensation and other reliefs in prayer clause. 

7.                The opposite parties filed written statement and stated that the complaint is not maintainable and complainant is not a consumer, as the complainant who has a residential place, purchased additional flats.

8.                The opponents alleged that the complainant only prayed for compensation except obtaining occupation certificate. The claim is beyond  by pecuniary jurisdiction of  the forum.

9.                The agreement supersede  the advertisement. It is denied that complainant met Nipun Mehta. It is submitted that possession cannot be delivered without receiving payments.

10.              The opponents alleged that notices for payment were sent even flats were ready for occupation. It is further stated that lift facility is operational and certificate of inspection is filed on record. There is ample water supply. The obtaining of occupation certificate is delayed  due to unauthorized changes in flat made by complainant.

11.              The opponents alleged that architect followed up with engineers of CIDCO for occupation certificate. They set up a counter claim of an amount of Rs.54,254/- being  defaulted amount  due by complainant  as per the maintenance bill dated 01/04/2013 and prayed that complaint be dismissed with costs with penalty u/s.26 of C.P.Act,1986.

12.              We have perused all the documents produced on record. We have heard learned consumer representative Shri.Rajan Badale for complainant and learned Advocate Shri.Wankhede for opposite parties. The record shows that complaint pertains to flat no.901 and 902 in the name of complainant and his wife, constructed by opponents. The agreement dated 12/05/2009 between complainant and his wife with opponent, shows possession will be given in September-2009. There is no specific denial that possession was given in June and August-2011.

13.        According to complainant, possession was delayed due to fault of opponents and opposites parties submitted that possession was delayed due to failure of complainant  by not  paying amount on time. The opponents stated that present complaint is filed as a counter blast to their demand for payments of the balance amount of the price of the flat.

14.              The documents on record  show  that there is dispute regarding the payment of price and  its receipts. The complainant has not stated the details of payment made with help of receipts and  opponents also have  not stated what is the balance amount still payable by complainant. The opponents have made a counter claim against complainant. We therefore, feel it proper, that issue relating to settlement of accounts should be adjudicated on the basis of documentary and oral evidence, on the touchstone of cross-examination by filing case before proper court.

15.              The complainant has claimed compensation  for mental agony  as well as loss of salary of his wife to the amount of Rs.5,60,000/- leave and license charges, expenses for transportation etc. The opponents have stated on oath that amount outstanding in respect of flat no.901 is Rs.1,32,957/-and flat no.902 is Rs.1,28,513/- is due from complainant. It is to be noted that both parties have not given the details of payment in respect of their submissions.

16.              The issue regarding claim of compensation by complainant to the amount of about seven lakhs, again will require recording of evidence to estimate the quantum, as per Section-12 of the Evidence Act,1872.

17.              On careful consideration of the facts and circumstances on record we are of the opinion that, as opponent parties have allotted parking space and handed over the keys of the flats in 2011 and  till this date occupation certificate is not obtained. It is therefore evident that opponents failed to give proper service to complainant. It was necessary to inform to the complainant, the progress report regarding obtaining occupation certificate and also grounds for the delay. This is deficiency in service and also failure to perform statutory obligation as  per MOFA 1963.

18.              In the result, mere statement that, architect of opponent is taking steps for obtaining occupation certificate would not justify the unreasonable delay. As per record there is no evidence to show that complainant owned a flat prior to purchase of the flat nos.901 and 902. We do not agree with a view of Adv.Wankhede that complainant is not consumer as there is no evidence to show that the flat was purchased by way of investment.

19.              The learned Advocate Shri.Wankhede argued that, the relief claimed is beyond pecuniary jurisdiction of this forum, however the fact that opponents gave possession of  the  flats and the relief claimed in prayer clause is within jurisdiction as per Sec.11,  we do not accept argument of Adv.Wankhede.

20.              In the result, we pass the following order.

                                        ORDER

1. RBT complaint No.534/2012 is partly allowed.

2.       The opponents are directed to obtain occupation certificate as

          prayed by complainant within four months, failing which they

          shall pay Rs.5000/- per month and to communicate the complainant

          progress report, regarding the obtaining occupation certificate every

          month

3.       The opposite parties are directed to submit the audited statement

          of accounts regarding the receipts of payments in respect of the

          two flats i.e. 901 and 902 in building “ PALAZZO” on ninth floor

          on plot No.72 L and 72 M, Sector -11, Kharghar, Navi Mumbai to

           complainant within two months.