Order-13.

Date-13/05/2016.

Complainant Md. Manceby filing this complaint has submitted that complainant intended to purchase a residential flat for his own use on lease hold basis.  Accordingly, the offer of the complainant was accepted by the op and an agreement for sale was signed by and between the parties on 08.03.2015 with certain terms and conditions.

          The total area of the super built up is 500 sq. ft. at the rate of Rs.2,000/- per sq. ft. and monthly rent shall be fixed  at the rate of Rs.1.50 paisa per sq. ft. and total amount would be paid as consideration money to the extent of Rs.10,00,000/- out of that on the execution of the said agreement to sale on 08.03.2013, complainant paid Rs.5 lakhs.  But thereafter complainant intended to pay the same and delivery of possession was also not made.  But subsequently thereafter in the month of September, 2015 when the complainant demanded for handing over the possession of the flat then the op further asked the amount of Rs.1,00,000/- to the complainant failing which op threatened to the complainant for more delaying the construction work unless said amount is paid by the complainant, it has to be sold to someother person.

          Finding no other alternative, complainant paid that amount and op assured that flat shall be delivered to the complainant in the month of October, 2015.  But even after lapse of actual time, op did not hand over the same and subsequently it is found that op sold away the flat to third party illegally and completely deprived the complainant as per agreement dated 08.03.2015.  In such a situation complainant prayed for return of deposited amount.  But op did not pay any heed for which complainant filed an application before CA&FBP where op appeared and admitted that he shall have to pay amount within six months by installment.  But thereafter also did not pay the same and has been harassing the complainant for which for negligent and deficient manner of service and also for adopting unfair trade practice, complainant has prayed for refund of money with interest and also compensation etc.

          On the other hand op by filing written statement submitted that the entire complaint is false and fabricated and it is also submitted that complainant failed to pay the total consideration amount as per agreement in time although the op several times requested the complainant for payment of total consideration amount but the complainant failed to pay the same for which op requested the complainant to get back the said amount.  But complainant refused to get it.  So there was no negligence and deficiency on the part of the op and practically with some false allegations, complainant has appeared and there was no fault or negligence on the part of the op for which this present complaint should be dismissed.

Decision with reasons

          On an in depth study of the complaint and written version and also vital documents of the agreement dated 08.03.2013, it is clear that as per agreement, op was bound to hand over the said flat within six months from the date of execution.  It is noted in the Clause-1 and as per agreement, complainant paid Rs.5 lakhs because on the date of execution, complainant must have to pay it and thereafter execution may be made.

          So, it is clear that on 08.03.2013 op received Rs.5 lakhs which is mentioned in clause-5.  But it is admitted position that op did not hand over the flat and he has sold away the same to third party.  It is also fact that complainant thereafter submitted an application before the CA&FBP and in that proceeding op appeared and submitted that he would refund the deposited amount of Rs.  6 lakhs after six months as from the date of order passed by Deputy Assistant Director, CA & FBP on 06.01.2016.  But fact remains that op admitted that he is willing to refund the amount, but that has not been paid, not only that he sold away the flat to third party at a higher rate.  No doubt such an act on the part of the op not only negligent and deficient manner of service but also at the same time by violating the terms and conditions of the policy which tantamounts to unfair trade practice.  No doubt in the meantime the value of the flat had been increased at a high rate due to increase of cost of construction materials for last three or four years.

So, at this stage it is impossible for the complainant to purchase such a flat amount of Rs.6 lakhs.  So, in the above reason, the interest thereon  at the rate of 12 percent p.a. from the date of execution of Agreement that is from 08.03.2013 till its full payment should be given as relief.

Moreover complainant is also entitled to get suitable compensation for mental agony and harassment undergone by the op inlast four years,awaiting a roof over their head, and making numerous calls and visits to op, ultimately complainant failed.  Therefore, O.P. to refund the amount of Rs.6,00,000/- with interest  at the rate of 12 percent p.a. and also compensation which is fully justified in this case and in this regard we are of opinion that if Fora award lesser interest, an unscrupulous builder may, instead of completing the project for which money has been collected from the flat buyers, divert the funds to other projects/activities since cost of borrowing for him may be higher than what he is made to pay to the flat-buyer as interest.  Therefore, we must necessarily take a view, which will discourage any such misuse/diversion of funds by the builder.

Furthermore relying upon the juegement passed by National Consumer Disputes Redressal Commission, New Delhi in CC No. 347/2014 passed on 14.08.2015, we are convinced to hold that the Hon’ble National Commission also took a strong decision and observation against such sort of unscrupulous promoters or developers.

          In view of the above findings and on relying upon the ruling as referred, we are convinced to hold that complainant’s case is proved beyond any manner of doubt for negligent and deficient manner of service and unfair trade practice is also proved and at the same time for violation of contract by the OP unfair trade practice on the part of the op is also proved.

In the above circumstances, complainant is entitled to get a decree and redressal against the op along with cost etc.  In the result this complaint succeeds.

Hence, it is

ORDERED

That the complaint be and the same is allowed on contest against op with cost of Rs.10,000/-.

Op is hereby directed to refund the entire amount of Rs.6,00,000/- along with 12 percent interest p.a. with effect from 08.03.2013 and till its full payment over the said amountto the complainant and also shall have to pay compensation of Rs.25,000/- to the complainant for harassing the complainant and also for mental agony and for harassment undergone by the op for last four years, not getting a roof over their head.

For adopting unfair trade practice by the op in such a manner and for selling the flat to third party by deceiving the complainant and also for grabbing such fund by the op for promotion on other business and for profit, op shall have to pay a sum of Rs.25,000/- as penal damage as it is imposed for unfair trade practice and to check such sort of activities for the builders in the market, this order is passed.  Op shall have to deposit that amount to this Forum.

Op is hereby directed to comply the order within one month from the date of this order, failing which for non-compliance of the Forum’s order, op shall have to pay penal interest  at the rate of Rs.3,000/- per month till full compliance of the decree and if it is collected, it shall be deposited to this Forum.

Even if it is found that op is reluctant to comply this order, op shall be prosecuted u/s 25 read with Section 27 of C.P. Act, 1986 for which further penalty and fine shall be imposed upon op.