Complainants Smt. Saroj Dviwedi and Prabha Shankar Dviwedi filed this complaint for a claim of Rs. 4,37,250/- as penalty for not handing over possession of flat in time and further a direction to complete the remaining work as per agreement and to execute sale deed and get it registered as the cost of O.P. Compensation is claimed of Rs. 2 Lacs for mental agony and harassment with litigation cost of Rs. 35,000/-

2          The brief case of the complainants is that they booked a flat No. 203 on 03-09-2012 for their personal residence with M/S The Ambiance City Developer at Bokaro and paid the entire agreed amounts. The agreement was executed on the same day and flat will be handed over within 36 months from 03-09-2012.

            Complainants had given notice on 14-09-2016 to O.P. regarding failure of handing over on or before 03-09-2015. After this notice O.P. handed over the flat on 30-04-2017 without fixing doors, windows, etc violating the given specifications of the agreement.

            The flat was booked in the Project name “Golden Castle Luxury Apartment” at Chira Chas Bokaro of the O.P.

            As the flat was not handed over within 03-09-2015 the complainant No. 2, a service holder, had to retain quarter causing payment of rents etc to SAIL about 12000/- per month from September 2015 till date.

            A legal notice was sent on 20-09-2016 and after receipt of the notice, handed over incomplete flat on 30-04-2017 which is shabby and not worth living condition.

            As sale deed was not registered in favour of complainant, and due to non- submission of Sale Deed, mutation paper and current  rent receipt, the Bank who financed for the flat, issued notice dt. 21-04-2017 with a copy to O.P. threatening to charge interest @ 17.95% p.a from the date of disbursement, this causing mental harassment.

            As per clause 8.5 of the agreement 10% of the total amount Rs. 26,23,500/- will be Rs. 2,62,350/- p.a payable W.e.f. 3-09-2015 to 30-04-2017 (Total 20 Months) which is 21,862.50 X 20 = 4,37,250/-.

            Hence the complaint is filed.

3          Complainant in support filed the following documents:-

            Anx-1 – Copy of the Agreement.

            Anx-2- Copy of bank pass book.

            Anx-3- Copy of Receipt by O.P.

            Anx-4- Copy of counter foil of bank payment.

            Anx-5- Copy of letter of O.P. dt 16-04-2014 to complainant.

            Anx-6& 6/1- Copy of legal notice dt. 14-09-2016 and receipt of speed post.

            Anx-7& 7/1- Copy of Bank letter dt. 21-04-2017 to complainant & reply.

            Anx-8 Copy of Estimated cost.

            Anx9& 9/1 Copies of S.B.I. Letter dt. 20-11-2017 and reply

            Anx-10- to 10/3- Copies of photograph of flat taken on 09-03-2018
            Complainant No. 2 examined on affidavit and cross examined as witness       also.

4          O.P.s appeared and filed W.S. It is submitted that the case is not maintainable and without cause of action. Complainant has failed to show deficiency in service or unfair trade practice.

            It is admitted that flat was booked and delivery be given within 36 months subject to clause 6.3 regarding normal availability of building materials. The payment is also admitted by O.P, by the complainant.

            It is submitted that on 14-05-2017 a settlement was arrived between parties to give 90 days time to hand over the flat. But this complaint is filed after two days of the settlement. O.P. is ready to hand over the flat, hence, there is no deficiency in service.

            No document is filed nor has any witness been produced by O.P.

                                                F I N D I N G S

5          We perused the record and hold that the complainants are consumer since they paid money to seek service of the O.P. as developers of a constructions project and the dispute between them is a consumer dispute.

6          As per the written statement, the agreement and booking of flat in favor of the complainat is admitted by O.P. along with payment for the price and development along with fixtures. It is also admitted that as per clause 6.2 of the agreement the flat in all respect was to be handed over within 36 months. The O.P. placed excuse under clause 6.3 of the agreement by which O.P. has no liability of the delivery of the flat within 36 months on account of non availability of the building materials. However no evidence is produced by O.P. to make them not liable for non delivery of the flat within 36 months. Therefore, the O.P. cannot escape liability of deficiency in service. So far the settlement of 14-05-2017 before the police for extension of time to hand over the flat in complete manner within 90 days, this cannot change the primary agreement between the complainant and O.P.

            So the materials available on the record is sufficient to prove the allegation of the fulfillment of the terms under clause 6.2 of the agreement and O.P. is liable to be held responsible for deficiency in service along with penalty of 10% of total amount of the flat under clause 8.5 of the agreement.

7          The complainant have claimed penalty of Rs. 4,37,250/- as a penalty with effect from 03-09-2015 to 30-04-2017 (total 20 months) which is Rs. 21,862.50 X 20 months = 4,37,250/-. During the course of the argument it has been submitted that on 30-04-2017 after receipt of the bank’s letter for enhancing the rate of interest of the loan amount, O.P. orally submitted for handing over the flat. However in actual position the flat has not been still handed over by the O.P. to the complainant and that’s why the calculation of the penalty has been calculated till 30-04-2017.  The complainants have also produced photographs of the flat taken on 09-03-2018 showing the incomplete flat. Meaning thereby even after seeking time of 90 days on 14-05-2017 before the police, the flat is still incomplete and not handed over to the complainants. Therefore O.P. is liable to pay the penalty as per clause 8.5 of the agreement.

8          Since the flat is not ready and not handed over, therefore there could not be any execution of the sale deed and registration thereof the same. For this reason the complainant has to retain the official quarter ever after retirement on payment of rent, roughly above Rs. 12,000/- per month.

9          In the result, we allow the claim of the applicants and O.P. M/s The Aambiance City Developer is here by directed to pay @ Rs. 21,862.50(Twenty One Thousand Eight Hundred Sixty Two Rupee and Fifty Paisa) only per month since 03-09-2015 till the handing over the flat as penalty charges. O.P. is also directed to hand over the flat. with complete in all manner as per the agreement within 90 days of this order.

            It is also directed that the O.P. shall execute the sale deed of the flat and get the same registered and bear 25% of the cost of the registration fee.

             O.P. is further directed to pay compensation of Rs. 5000/-(Five Thousand Only) and litigation cost of Rs. 2,000/- (Two Thousand Only).