2.       These complainants are husband and wife and have agreed to purchase one bungalow bearing No. 19 from the scheme by name “Deuxieme Enclave” which is developed by opponent who is a builder and developer, in land from Gut No.356 of village Satara, Tq.Dist.Aurangabad. Accordingly, the respondent has executed the agreement to sale on  26.7.2010 in favour of complainants.  That, the total consideration of the said bungalow as agreed between the parties is of Rs.44 lakhs.  Out of this consideration, complainants have paid Rs.15,60,000/- to the opponent and accordingly agreement to sale has been executed in favour of complainants by the opponent on 26.7.2010.  In the said agreement, schedule of payment of remaining amount is given as per which last payment of Rs.3,40,000/- was to be paid  at the time of possession.  It is contended by the complainant that according to said schedule of the payment, he has paid the entire balance of Rs.28,40,000/- on 10.08.2010 which includes the payment of Rs.3,40,000/- which was to be paid on the date of handing over the possession.  However inspite of making the entire payment of Rs.44 lakhs as agreed upon, the opponent has not handed over the possession of the said bungalow and also has not executed the sale deed of the same, inspite of constant follow up.  It is also the grievance of the complainants that the work of bungalow is incomplete and not done as per specification given in the agreement and that the amenities have also not been provided. It is further contended that, opponent vide letter dated 14.10.2010 has demanded excess amount of Rs.8,24,365/- which consists of Rs.71,294/- towards outstanding amount, Rs.5,12,000/- towards extra work and interest, Rs.75,000/- towards electrical expenses, Rs.16,951/- towards service taxes, Rs.1,00,000/- towards society deposit & Rs.49,120/- towards VAT @ 1% on agreed sale value.  It is the contention of complainants that since the entire amount of Rs.44 lakhs has already been paid there remains no amount outstanding as claimed by opponent. Secondly, it is also contended that   opponent has not given any details regarding extra work as well as electrification, therefore  he cannot claim the said amount. It is further averred that amount of service tax cannot also be claimed as entire amount has already paid by the complainant.  As regards the amount of Vat tax he submitted that the same is under dispute with the Hon`ble Apex Court and hence, the respondent can not claim the same. The complainants however are ready to pay the society deposit of Rs.1,00,000/- for which they have sought the details of the society`s account number and the name of bank. It is alleged by the complainants that it is just to avoid giving possession and execution of sale deed,  the opponent has made demand of an extra amount of Rs.8,24,365/-. It is also the contention of complainants that since they have paid the amount of Rs.3,40,000/- already on 10.8.2010 which was to be paid at the time of possession, the opponent is liable to pay the interest amount of Rs.3,11,666/- which they are required to pay on the amount of loan they have raised from ICICI Bank.  Secondly, they have also claimed amount of Rs.75,000/- towards rent which they were required to pay to the owner of the rented house and further Rs.25,000/- towards mental harassment. It is averred by complainant that letter dated 14.10.2010 whereby the opponent has demanded additional amount of Rs.8,24,365/- is the date of cause of action and therefore this complaint is filed against opponent seeking direction to opponent to hand over the possession of bungalow as well as to execute the sale deed regarding the same by obtaining completion certification from the competent authority. In addition, it is also sought to pay amount of Rs.4,11,666/-.

          Complainants have submitted following documents in support of their complaint.

i)                   Copy of agreement to sale dated 26.7.2010,

ii)                 Copy of acknowledgment showing payment of consideration amount,

iii)              Copy of letter 14.10.2010,

iv)                Photographs showing the quality of construction of the bungalow.

3.       We have admitted the complaint and notice was served on the opponent.  Accordingly the opponent appeared before this Commission and filed his written version on 21.11.2011 and resisted the claim of the complainant.  He is submitted that the dispute pertaining to the complaint involves complicated question of facts and law.  Therefore it requires to record detail evidence and hence the complaint is not tenable and maintainable before the Consumer Forum under Consumer Protection Act. It is further stated by the opponent that the work of bungalow is completed on 14.10.2010 and same is done as per specifications. The photograph as submitted by complainant has no relevancy. Since the work is completed, sale deed can be done in the month of November and December. It is further contended that total valuation of bungalow is Rs.53 lakhs and as per letter dated 14.10.2010 complainants are required to pay additional amount of Rs.8,24,365/-.  However, since complainants have not paid the said amount, they  cannot claim possession and execution of the sale deed. He therefore contended that since there is failure on the part of complainants to pay additional amount as demanded by him by letter dated 14.10.2010 there is no deficiency in service on his part and requested to dismiss the complaint.

4.       Complaint was fixed for final hearing on 14.8.2012.  Adv.Shri.P.F.Patni was present for complainants,  Adv.Shri.M.B.Shaikh was present for opponent.  Both the parties have filed their written notes of arguments.  Adv.Patni appearing for complainants put forth his oral argument in addition to his written notes of argument.  He submitted in his argument that as per agreement to sale the total consideration agreed is Rs.44 lakhs and same is paid by the complainants to the opponent which is not disputed by the opponent. However opponent vide letter dated 14.10.2010 has demanded extra amount of Rs.8,24,365/- which has no base and therefore  complainants are not at all required to pay this amount except the amount of Rs.1 lakh towards society deposit.  He submitted that complainants are ready to deposit the said amount in the society account. He also submitted that construction of the bungalow is not as per the specification and even the amenities as mentioned in the agreement to sale have not been provided.  He specifically pointed out that the amount of Rs.3,40,000/- which was to be paid at the time of possession have already been paid on 10.8.2010 and therefore  from that date the complainants are entitled to get amount of rent which they had to pay at Rs.7,500/- per month till the date of filing of complaint.  They have paid total amount towards rent is Rs.1,72,500/-. He also claimed amount of interest which complainants are required to pay to the bank on the loan amount of Rs.25 lakhs as availed by them towards the bungalow under reference.  This amount of interest as claimed is Rs.3,11,666/- and further Rs.25,000/- towards mental harassment.  He thus contended that since the complainants have performed their part of agreement and have paid total amount of consideration i.e. Rs.44 lakhs the opponent is under obligation to hand over the possession as well as to execute sale deed and also to pay amount of compensation as claimed. Learned counsel  Shri.P.F.Patni for the complainant has relied on following two citations.

i)                    Seth Ramdayal Jat –Vs- Laxmi Prasad, AIR 2009 Supreme Court 2463, in which it is held that, “Averments in plaint not traversed in W.S.-same would be deemed to be admitted”.

ii)                 Sambhaji Laxmanrao Pawar –Vs- Abdul Wahed S/o Rahmatullah, 1995(I), Mh.L.J.22.

5.       On the other hand, learned counsel  Shri.M.B.Shaikh through his written notes of argument has submitted that the complainants have to pay extra amount of Rs.8,24,365/- as demanded vide letter dated 14.10.2010. However since the said amount is not paid the possession of the bungalow as well as execution of sale deed could not be effected. He therefore contended that there is no deficiency in service on the part of opponent and complaint being false and baseless be dismissed with cost of Rs.10,000/-.   

6.       Taking into consideration the complaint, written version as well as evidence affidavit and written notes of argument as submitted by both the parties, we have framed following issues and also given findings thereon.

Sr.     ISSUES                                                       FINDINGS.

No.

1.       Whether complaint can be tried

          & decided by this Commission?                 - Yes.

2.       Whether complainants are entitled for

          possession and also for execution

          of the sale deed of said bungalow?             - Yes.

3.       What order?                                                _ As per final order.

                                      R  E  A  S  O  N  S         

As to issue No.1 :

          It is contended by opponent that present complaint involves complicated question of facts and law and therefore it is not maintainable before this Commission and the complainants therefore have to approach to Civil Court. However it is a settled law that even under Consumer Protection Act, evidence by way of affidavit can be recorded and Consumer Fora is competent to decide the complicated question of fact and law as per the provision under the ‘Consumer Protection Act’. Therefore  the contention of the opponent cannot be accepted.  Hence we have given our finding as regards to issue No.1 in “affirmative”.

As to issue No.2 :

i)        We have perused the record as well as considered in detail  the oral as well as written arguments as put forth by both the learned counsels.  It is an admitted fact that complainants have agreed to purchase the bungalow under reference for the total consideration of Rs. 44 lakhs.  It is also admitted fact that opponent developer and builder has executed the agreement to sale in favour of complainants on 26.7.2010.  On perusal of the agreement to sale, it reveals that, total consideration of the said bungalow is fixed at Rs.44 lakhs, out of which the opponent has received Rs.15,60,000/- on the date of agreement and the remaining amount of Rs.28,40,000/- has been paid as per the schedule given in the said agreement. That, out of this remaining amount of Rs.28,40,000/- the complainants have paid Rs.25 lakhs vide cheque No.615438 dated 10.08.2010 and Rs.3,40,000/- vide cheque No.6041537 dated 10.08.2010 through ICICI Bank which has not been disputed by the opponent.   Hence the total consideration of Rs.44 lakhs as per agreement has already been received by opponent.

ii)       As per condition of agreement the duration of the project is of six months from the date of agreement subject to the payment as per the schedule given in the agreement. Since the complainants have paid the entire amount of consideration of Rs.44 lakhs the opponent was under obligation to complete the project and bungalow in question within six months from the date of agreement i.e. before 25.1.2011. It is further mentioned in the said agreement that on completion of building, the opponent shall give intimation to the purchaser and within one month from the said intimation the purchaser had to pay all dues towards the price of the proposed construction and take possession of the proposed construction.  However in the present case inspite of receipt of the entire amount of consideration of Rs.44 lakhs from complainant, opponent is yet to hand over the possession of the bungalow and also to execute the sale deed.

iii)      However the opponent has claimed extra amount of Rs.8,24,365/- and contended that total value of said bungalow is Rs.53 lakhs.  He has further contended  that since the said additional amount has not been paid by the complainant he is not liable to hand over the possession and also execute the sale deed. However as contended by complainants and as revealed from the papers, we are convinced that there is no proper justification given by opponent in respect of additional amount except the amount of society deposit of Rs.1 lakh which the complainant had already agreed to pay in the account of the society. We therefore find that the opponent is at fault in not handing over the possession of the said bungalow and also not executing conveyance deed of the said bungalow.  Avoiding to hand over the possession and to execute sale deed thus amounts to deficiency in service.  As mentioned above since the complainants have paid entire amount of Rs.44 lakhs towards consideration of the bungalow, they are entitled to get the possession as well as execution of sale deed.  We have therefore given our finding regarding this issue in “ affirmative”.

iv)      As regards complainants claim of compensation of Rs.4,11,666/- which consists of amount of rent, interest on the loan amount resisted by him from ICICI Bank and mental agony.  We find that actual loss which complainants had to sustain due to non-delivery of the bungalow is amount of rent which they were required to pay for the rented house. The amount of bank interest which has claimed by complainants does not appear to be proper because even if the possession of bungalow would have given by opponent complainants were bound to pay amount of interest. We therefore of the view to allow the compensation towards rent due to delay in handing over the possession @ Rs.7500/- per month. As mentioned above as per condition of the agreement opponent was under obligation to complete the project by 25.1.2011 from the date of agreement i.e. 26.7.2010.  Therefore  from 25.1.2011 till the date of possession opponent to pay compensation towards rent to the complainants. 

As to issue No.3.

          Taking into consideration our finding against issue No.2 above we partly allow the complaint by holding the opponent to have committed deficiency in service and pass the following order.

                                                O   R    D    E    R

1.     Complaint is partly allowed.

2.     Opponent is directed to hand over the possession of bungalow as well as to execute the sale deed in favour of complainants within a period of 60 days from the date of this judgment.

3.     Opponent is further directed to pay compensation towards rent of Rs.7500/- per month with effect from 25.1.2011 till the date of delivery of possession and Rs.10,000/- towards mental agony and Rs.5000/- towards cost of the complaint.

4.     Copies of the judgment be issued to both the parties.

Pronounced on 18.09.2012.

Mane