Complainant through Adv. Shah
Opponents through Adv. Smt. Kulkarni
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Per : Mr. V. P. Utpat, President Place : PUNE
// J U D G M E N T //
(19/10/2013)
This complaint is filed by the consumer against the developer for deficiency in service under section 12 of the Consumer Protection Act, 1986. The brief facts are as follows,
1] The complainant is a Government servant and the opponent is in the profession of construction. Opponent agreed to sale out the flat no. 301 in ‘B’ wing from “Swami Samarth Sankul” project, which is situated at Kirkatwadi. The consideration of the flat was fixed Rs. 7 lacs. The opponent has received an amount of Rs. 1 lac till execution of the agreement on 20/8/2010. Thereafter complainant has paid an amount of Rs. 1,50,000/- in three installments up to 3/5/2011. The opponent has not provided legal documents for obtaining loan from the bank and financial institutes. The opponent agreed to deliver the possession of the flat within 12 months from 20/8/2010. The complainant was residing in rented premises by paying rent of Rs. 6000/- per month. The opponent has not abided the condition of the agreement. Hence, the complainant has filed present complaint for deficiency in service and for delaying possession of the flat. The complainant has asked compensation of Rs. 5,00,000/-, possession of the flat and damages @ 6000/- per month from August 2011 till getting the possession.
2] The opponent resisted the complaint by filing written version. The execution of the agreement is not in much dispute. It is also admitted that the consideration of the flat was Rs. 7 lacs. But it is the case of the opponent that the complainant had committed breach of agreement by not making payment. Hence, the complainant himself is the defaulter. There is no deficiency in service. The opponent has prayed for dismissal of the complaint.
3] After scrutinizing the documents, which are produced on the record by both the parties, and hearing arguments of both the counsels, the following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1. | Whether opponents have caused deficiency in service by not delivering the possession of the flat and not executing legal documents? | In the affirmative |
2. | What order? | Complaint is partly allowed. |
REASONS :-
4] It is not in much dispute that the opponents had executed agreement in favour of the complainant. The complainant has established that an amount of Rs. 2,50,000/- was paid to the opponent. It was agreed between the parties that the payment was to be made slab wise after considering progress of the construction. The complainant has further contended that, as the opponents have not provided relevant documents for obtaining loan, she could not obtained loan. Hence, she could not make payment of remaining consideration. It is not established by the opponents that, it has provided legal documents to the complainant and the construction was completed within time, as per the agreement. This indicates that the opponents have caused deficiency in service by delaying the delivery of possession of the flat in dispute.
5] The learned Advocate for the opponents have argued that, as the complainant did not pay entire consideration, he can not ask delivery of possession of the flat. But it reveals from the record that the opponents have failed to supply the legal documents for obtaining loan and that’s why the complainant could not pay remaining consideration amount. It is significant to note that the opponents have not produced any record to prove that, he had intimated the complainant about the completion of the construction. It has never demanded remaining consideration amount in writing. Hence, I held that the complainant has proved that the opponents have caused deficiency in service. I answer the points accordingly and pass following order.
** ORDER **
1. Complaint is partly allowed.
2. It is hereby declared that the opponents have
caused deficiency in service by not delivering
possession of flat as per terms and conditions
of the agreement.
3. Complainant is directed to pay or deposit
balance consideration amount of Rs.4,50,000/-
(Rs. Four Lacs Fifty Thousand only) within one
month from the date of order.
4. The opponents are directed to deliver jointly
and severally possession of flat within 6 weeks
from the date of deposit of the consideration.
The opponent is also directed to execute the
conveyance deed, supply completion certificate
and other relevant documents to the complainant.
5. The opponents are also directed to pay jointly
and severally compensation of Rs. 10,000/-
(Rs. Ten Thousand only) to the complainant
on the ground of deficiency in service, mental
and physical suffering and the cost of the
litigation within 6 weeks from the date of deposit
of the consideration.
6. Copies of this order be furnished to the parties
free of cost.
7. Parties are directed to collect the sets,
which were provided for Members within
one month from the date of order, otherwise
those will be destroyed.
Place – Pune
Date- 19/10/2013
