IN RAIGAD DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, RAIGAD-ALIBAG.

                                                                                                                                                 Complaint No. 8/2014  

                                                                                                                                                 Date of filing – 29/01/2014

                                                                                                                                                 Date of Judgement-27.02.2015

Shri. Syad Umar Farooq Kadri

Residing 503, 16-B, Shiv Nagar,

Mhada Colony, Off. Mahakali Caves Road.,

Andheri   (East).

Mumbai 400093.                                                      …… Complainant

V/s.

    M/s. Landmark Builders and Developers,

    A Partnership firm having office at –

    G-1, Plot No.105,

    Sector 23, Ulwe,

    Navi Mumbai 410209.                                                    ……. Opposite Party

           Before  :-     Hon. Mr. Umesh V. Jawalikar, President

                              Hon. Smt. Ulka  Pawaskar, Member

                              Hon. Mr. Rameshbabu B. Ciliveri, Member.

                  Present: -    Adv. R.S. Jagtap, for complainant.

                                              Opposite party,   No WS order.

JUDGEMENT

Per Hon. Shri. Rameshbabu B. Ciliveri, Member

1. The complainant has filed this complaint against the Op for deficiency in service and for unfair trade practice for neglecting to register the agreement for sale of flat after receiving huge part consideration amount towards cost of flat. The complaint is in brief as under:

2. The Op who is carrying business of construction and engaged in construction  of building known as “Esta Corner” situated at Plot No.105,  Sector 23, Ulwe, Navi Mumbai.

3.  The complainant is in need of residential premises at “Ulwe”, Navi Mumbai and came to know the Op is developing the building known as “Esta Corner”  at  Navi Mumbai and approached one Mr. Abdul Malik who is partner of Op at his office for purchase of flat in the building project.  The partner of Op shown the Flat bearing No, 401, for sale on 4^th floor, an area admeasuring 765 Sq. fts. @ Rs.3,921/-per sq. ft. for Rs.30,00,000/- for which the complainant agreed to purchase.  The Op also agreed to arrange home loan from GIC Bank.  The complainant paid Rs. 5,50,000 to Op towards the booking/part consideration in respect of said flat.  The Op assured execute the agreement for sale of flat shortly and agreed to give the possession of the flat within one year.   Later on the Op informed through sms to submit some documents to avail the home loan, accordingly the complainant submitted the same to Mr. Abdul Malik.  Thereafter the Op neglected to execute the agreement for sale of flat and started  giving excuses. 

4. When Op reluctant to execute agreement for sale of flat, the complainant personally contacted the Mr. Abdul Malik in the month of May, 2013 and requested for refund of money.   The Mr. Abdul Malik informed to wait till July, 2013 for refund of money. 

5. The complainant is ready to pay balance consideration amount towards the cost of flat, but without registration of agreement for sale the home loan cannot be obtained and not in position to pay balance consideration without home loan.  The Op have deliberately failed to execute registered agreement for sale with the complainant.

6. The complainant issued notice dated 07.11.2013 requested Op  to refund the part consideration.   The said notice dated 07.11.2013 has been issued to Opposite party by track on Courier Pvt. Ltd., on dated 11.11.2013.  the Op neither replied to the said notice nor refunded the part consideration paid by the complainant.

7. For the purpose the complainant filed this complaint against op for claiming the refund of amount paid towards part consideration towards the cost of flat along with the interest thereon and prayed for damages, mental agony, and harassment and towards the cost. 

8. The complainant filed case before this Forum for deficiency in service, unfair trade practice and prayed for reliefs.  After filing the complaint this Forum issued notice to Opposite party as per the provisions of C.P. Act, stating to file written version regarding the complaint filed by the Complainant.  

9. After serving notice, the opposite parties remained absent and not filed any written statement.  As complainant’s advocate made an application under section 28 A of C. P. Act, to proceed with the complaint and to pass necessary orders.  This Forum passed a No W S order against the Op and is confirmed as on date.  The affidavit of evidence, written argument were filed by Complainant.  
10.  After gone through the documents available on record filed by the complainant the following points were raised for determination and we recorded our findings:

Point No: 1.               Whether the complainant proves that the Opposite party 

                                  rendered deficiency in service and unfair trade practice

                                  for non  registration of Agreement for Sale of flat  and 

                                  failed to refund the  amount of part consideration which is

     paid by the complainant ?

Ans:                           YES

Point No.2:          Whether the complainant is entitled to claim compensation 

                              from  Opposite party ?

Ans:                      YES, Affirmative

Point No. 3:         What Order ?

Ans:                      As per final order.

 Reason of Point No 1:   The complainant in need of residential premises came in contact with Mr. Abdul Malik who is partner of Op who has shown the Flat bearing No, 401, for sale on 4^th floor, an area admeasuring 765 Sq. fts. @ Rs.3,921/-per sq. ft. for Rs.30,00,000/- for which the complainant agreed to purchase.  The Op was agreed to arrange home loan from GIC Bank and agreed to give the possession of the flat within one year.  The complainant has paid Rs. 5,50,000 on dated 05.08.2011 wide receipt No. 101 to Op towards the booking/part consideration in respect of said flat.  The Op assured execute the agreement for sale of flat shortly.   Op collected necessary documents for housing loan from the complainant.  Thereafter Op neglected and reluctant to execute agreement for sale of flat and started  giving excuses.  When complainant met personally Mr. Abdul Malik, partner of Op the month of May, 2013 for refund of money,  the  complainant was told to wait till July, 2013 for refund of money.   The complainant was ready to pay balance consideration amount towards the cost of flat, but without registration of agreement for sale, the home loan cannot be obtained and unable to pay balance consideration without home loan.   It is duty of Op to execute and register Agreement for sale of Flat as per law after receiving the part consideration towards the cost of flat which he has not done.  Hence it is proved that the Op is responsible for deficiency in service and unfair trade practice rendered for non  registration of Agreement for Sale of flat  and failed to refund the  amount of part consideration which is paid by the complainant. 

Reason of Point No 2:   After booking of Flat bearing No. 401, 4^th floor, in the building  “Esta Corner” situated at Plot No.105,  Sector 23, Ulwe, Navi Mumbai, the complainant has paid Rs. 5,50,000 on dated 05.08.2011 wide receipt No. 101 to Op towards the booking/part consideration in respect of said flat.   The Op promised  to give registered agreement for sale of the flat in short period of time and also promised to arrange the housing loan from GIC Bank.   But Op neither handed over the registered agreement for sale nor arranged any housing loan.   Op also failed to handover the possession of the flat within one year from the date of booking of flat.    When the complainant came to know that the Op is purposely delaying and reluctant to give registered agreement for sale of the flat. The complainant issued notice dated 07.11.2013 which is served upon Op to refund part consideration.  The  Op neither replied to the said notice nor refunded the part consideration paid by the complainant.  It seems the Op have deliberately failed to execute registered agreement for sale and not refunded the booking part consideration to the complainant.   Hence the compliant is eligible for the compensation towards mental agony, harassment and towards the cost.

FINAL ORDER

1. The complaint No. 8/2014. is hereby partly allowed.
2.  It is declared that the opposite party is held guilty and responsible for unfair trade practice and deficiency in service for not executing and registering the Agreement for sale of the flat after receiving huge booking/part consideration against the Flat bearing No, 401, 4^th floor, an area admeasuring 765 Sq. fts. in the building know as “Esta Corner” situated at Plot No.105,  Sector 23, Ulwe, Navi Mumbai.

3.  The Ops. shall refund amount of Rs. 5,50,000/- (Rs. Five lakhs fifty five thousand only) to the complainant along with the interest @ 10% p.a. from  05.08.2011 to the date of this Order within 30 days of this order,  failing which the interest shall be 12% p.a. shall be charged from  05.08.2011  to till realization.

4.       The Opposite party shall  pay Rs. 2,40,000/ (Rs. Two lakh forty thousand only) towards compensation, mental agony, harassment and towards the cost  to the complainant within 30 days from the date of this order.

5.       The copies of this order to be given to the concern parties free of cost by R.P.A.D.

Date :-  27/02/2015

Place :- Alibag – Raigad.

    (Rameshbabu B. Ciliveri)   (Ulka A. Pawaskar)      (Umesh V. Jawalikar)

               Member                         Member                       President

THE RAIGAD DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ALIBAG.