J U D G E M E N T      

            (15/05/2014)

Per HON'ABLE MR. S.S.Patil MEMBER.

1.         This is the Complaint regarding the deficiency in service on the part of the Opponents as they have not given the possession of the booked flat to the Complainant.

2.         The brief facts of the complaint as stated by the Complainant are that, the Opponents are the builders and developers and have constructed a building project known as Shri. Vinayaka Apartment no. II situated at 102, Sector 23, Village Darave, Navi Mumbai.  Opponent no. 2 is the director of the Opponent no. 1. The Complainant booked and purchased a flat bearing number 8, admeasuring 460 sq.ft super built up area on 3^rd floor, in the above said building project, for total consideration of Rs.3,40,400/-. The Opponents had issued allotment letter dtd. 27/06/2000. The Opponents and Complainant also entered in an agreement for sale dtd. 04/07/2000.  It was duly registered with the competent authority. The Complainant also paid the following amounts to Opponents as per below table

i) 19/06/2000         Rs.1,00,000/-

ii) 04/10/2000         Rs.  25,000/-

iii) 27/11/2000        Rs.  25,000/-

iv) 06/02/2001        Rs.  50,000/-

v) 06/02/2001         Rs.  50,000/-

vi) 26/04/2001        Rs.  25,000/-

vii) 26/04/2001        Rs.  50,000/-

     Total            Rs.3,25,000/-   

The above amounts were duly received by the Opponents under receipts.

3.         As per the terms and conditions of the agreement the possession of the above said flat was to be handed over to the Complainant before 30/06/2001.  However, the Opponents have failed to give the possession of the above said flat to the Complainant but sent a notice dtd. 21/04/2113, to the Complainant demanding additional amount of Rs. 1,15,000/- quoting reason as increase in the cost of the construction.  The Opponents also filed a spl. Civil suit no. 426/03 before the Hon’ble Court of Civil Judge Senior Division Thane. The Complainant defended said suit. On 28/01/2009 the Opponent withdrew the said suit and filed a pursis agreeing to hand over the possession of the said flat without additional consideration. However, the Opponents have failed to handover the possession till date. Thus the Opponents have adopted unfair trade practice.

4.         The Complainant has further alleged that due to the above deficiency etc. he is incurring losses of Rs. 8,000/- per month.  (rental charges) for retaining his present accommodation.

5.         Finally, the Complainant has prayed for the following reliefs –

a) To handover the possession of the above said flat with all the amenities.

b) To pay the interest @ 18% for delay from respective dates of payment till handing over the possession.

c) To pay Rs. 8,000/- p.m. from 30/06/2001 till the handing over the flat to the Complainant as a rental amount.

d) To pay Rs. 50,000/- towards legal cost & expenses of the Complaint.

e) To pay Rs. 1,00,000/- as compensation for mental agony etc.

6.         The Complainant has attached the Xerox copies of the following  document in support of his complaint.

a) Allotment letter dtd. 27/06/2000.

b) Agreement for sale dtd. 04/07/2000.

c) Receipts of payments.

d) Notice dtd. 21/04/2003.

e) Pursis filed in Civil Court Thane.

f) Letter dtd. 03/08/2007.

g) Letter by Opponents.

h) Notice issued by the Complainant dtd. 09/09/2010.

7.         The Complaint was admitted and notices were served on the Opponents. The Ld. Adv. Prasad Madhavi appeared on the behalf of the Opponent and filed his Vakalatnama. But subsequently withdrew his vakalatnama on 28/11/2012 and did not file written version of the Opponents.  Hence No W/S order was passed against the Opponents vide this Forum order dtd. 02/08/2013 and the matter proceeded without the written version of the Opponents.  The Complainant then filed his affidavit of evidence and written argument wherein he reiterated the facts mentioned in his complaint.  The Opponents remained absent throughout the proceedings and did not file their affidavit of evidence as well as the written argument.

8.         We heard the Ld. Adv. for the Complainant and perused the papers submitted by the Complainant.  Our findings are as follows -

The Complainant has purchased flat no. 8 admeasuring 460 sq.ft. super built up area on 3^rd floor, in project known as Vinayak Apartment II, Plot no. 102, Sector 23, Village Darave, Navi Mumbai from the Opponents for the total consideration of Rs. 3,40,400/-. The Complainant paid Rs.3,25,000/- between period 19/06/2000 to 26/04/2001.  Both the parties entered into agreement for sale dtd. 04/07/2000.  The said agreement was registered with the Registrar of Assurances at Thane.  The said flat was allotted to the Complainant by the Opponents vide Opponents letter dtd. 27/06/2000.  As per the terms and conditions of the agreement the Opponents were supposed to handover the possession of the above said flat to the Complainant before 30/06/2001.

9.         Instead of giving the possession of the above said flat to the Complainant the Opponents issued notice dtd. 21/04/2003 and called upon the Complainant to pay additional consideration of Rs.1,15,000/- to the Opponents. The Opponents have failed to handover the possession of the above said flat to the complainant as per the agreement for sale. Thus the Opponents have failed to comply with the contractual as well as legal obligation conferred on them under MOFA 1963.  Thus certainly there is deficiency in service on the part of Opponents as well as they have adopted unfair trade practice by accepting the consideration and not handing over the possession of the above said flat to the Complainant and by sending a notice for further demand of Rs. 1,15,000/-

10.   However the Complainant has alleged in the complaint that he has incurred loss of Rs.8,000/- per month for retaining his present accommodation in absence of the promised possession of the above said flat. In this connection we again went through the papas filed by the Complainant but there is nothing on record to show as to where the Complainant is living, what rent he is paying to the landlord, or how much expenses he has incurred on the premises, he is leaving. Therefore the Complainant has failed to give any cogent evidence to prove these losses incurred by the Complainant hence prayer in this respect cannot be granted.

11.        Inspite of payment of almost complete amount of consideration (Rs.3,25,000/-) till 26/04/2001, the Opponents have failed to give the possession of the above said flat to the Complainant till date. Hence the Complainant must have gone through the mental agony and inconvenience.  Hence he is entitled for the compensation of Rs. 50,000/- for causing mental agony and inconvenience to the Complainant due to the deficiency in service on the part of the Opponent and unfair trade practice adopted by the Opponents as stated above.

12.        The Complainant is also entitled for the cost of this complaint.

13.        It was contractual obligation of the Opponents to handover the possession of the above said flat to the Complainant before 30/06/2001.  However Opponents have failed to do the same.  Hence the Complainant is also entitled to the interest @ 9% p.a on amount of Rs.3,25,000/- from 30/06/2001 till possession of the above said flat to the Complainant.

14.        In para 5 of the Complaint, the Complainant has averred that the Opponents have sent a letter dtd., 03/08/2007 agreeing for the amount of Rs. 3,25,000/- as full and final payment as per compromise.  The Complainant has already paid this amount to the Opponents in 2001. This para as well as letter dtd. 03/08/2007 does not disclose clearly whether the Opponents called upon Complainant to pay Rs. 3,25,000/- or it was a reutterence of earlier payment.

15.        Ld. Adv. for the Complainant has produced some xerox copies of the documents at the fag end of the proceeding.  No original documents were filed by the Complainant.  It is not produced alongwith any affidavit of the Complainant still we perused these documents and the 1^st document appears to be some receipt.  The dates are different.  At one place the year of issue is 001. In another place the date is 28/01/07.  The second document also display different dates and it is only a xerox copy.  It is not cleared as to for what purpose these amounts have been paid to the Opponent i.e it is not clear whether this amount has been paid towards the consideration of the disputed flat in this case. The third xerox copy appear to be one receipt but it is not in the name of Sandeep Pote i.e the Complainant.  But it is in some other’s name.  Therefore in such circumstances we do not believe in and consider these Xerox copies submitted by the Ld. Adv. for the Complainant without any affidavit at this fag end of the proceeding.  Even the Complainant has also not clarified about these extra payment made by him to the Opponents in the complaint.  The Complaint has not explicitly averred that he had paid double the amount of the cost of the flat. Therefore we do not draw any conclusion from these Xerox copies submitted by the Ld., Adv., of the Complainant.

16.        In view of the above observations we pass the order as follows-

-: ORDER :-

1. Complaint bearing no. 133/2012 is partly allowed.

    

2. Opponent no. 1 and 2 are severally and / or jointly liable for the deficiency in service and for adopting unfair trade practice as mentioned in the above said order.

    

3. Opponent no. 1 and 2 are directed to handover severally and / or jointly the possession of flat no. 8 admeasuring 460 sq.ft super builtup area in Sri Vinayak Apartment no. II at Plot no. B-102, Sector 23, Village Darave with all amenities stated in the agreement for sale dtd.04/07/2000.

    

    

4. Opponent no. 1 and 2 are also directed to pay severally and / or jointly an amount of interest to the Complainant @ 9% pa on 3,25,000/- (Rs. Three lakhs Twenty Five Thousand Only) from 30/06/2001 till handing over the possession of the above said flat mentioned in clause (b) above.

    

5. Opponent no. 1 and 2 are also directed to pay severally and / or jointly a compensation of Rs. 50,000/- (Rs. Fifty Thousand only) to the Complainant for causing mental agony and for adopting unfair trade practice.

    

    

6. Opponent no. 1 and 2 are directed to pay severally and / or jointly an amount of Rs. 5,000/- (Rs. Five Thousand Only) to the Complainant towards the cost of this complaint.

    

7. Complainant is directed to pay Rs. 15,400/- (Rs. Fifteen Thousand Four Hundred only) to the Opponents at the time of handing over the possession of the above said flat to the Complainant by the Opponents.

    

    

8. Opponent no. 1 and 2 are directed to comply with the above said order within 60 days of the receipt of this order.

    

9. Copies of the above said order be supplied to both the parties free of cost.

Date :- 15/05/2014.

Place :- Kokan Bhavan, Navi Mumbai.