ORDER

(Passed on 17/10 /2019)

PER SHRI. ATUL D.ALSI, PRESIDENT.

 The complainant has filed this complaint U/s 12 of the Consumer Protection

Act,1986 through his father and POA, alleging defective, incomplete and substandard construction of apartment by the OP and praying for cost of incomplete work of Rs.1,51,500/- besides refund of  Rs.60,600/- and Rs.1 lac recovered in excess from him towards cost of apartment and Registration charges respectively alongwith 9% interest and further compensation of Rs.50,000/- and Rs.20,000/- towards cost of proceeding.

2.      The facts in short giving rise to this petition are that as the father and POA of the complainant booked Flat No.SF-06 in the apartment scheme named and styled as Madhav Tower to be constructed by the OP on Plot No.1,2,3,6,7,8,9 &10 at Mouza Chanda-datala,Survey No.62/1 admeasuring 2701.48 alongwith undevided share of 22.51 Sq.Mt. for Rs.6,50,000/-. The complainant time to time paid Rs.7,10,600/- towards cost of apartment though the cost of apartment was agreed at Rs.6,50,000/- only and thus the OP recovered Rs.60,600/- in excess. However, the OP did not complete the construction work of the apartment as yet. As the complainant and his father were pressing for early construction and execution of sale deed, the OP executed sale deed of flat No.SF 6, admeasuring 48.25 sq.mt. in Khatri Towers alongwith undevided share n interest of 25.00 sq.mt. in the same plot of land in favour of father of the complainant. However, the OP recovered Rs.1,50,000/- from the complainant towards registration charges though the actual expenditure incurred was Rs.50,000/- only on that count. Thus, the OP recovered Rs.1 lac in excess on that count also. After the execution of sale deed & getting possession of the flat, it revealed that the construction work has not been carried out as per sanctioned plan, neither the construction work is completed and there were number of anomalies in the construction in as much as, the substandard marble was used, substandard plastering resulting into cracks in walls, seapage from ceiling and walls, incompletge electric fitting, non fitting of wash basin and water taps. On each and every count the OP used substandard material. So the complainant insisted the OP to complete the work. However, the OP challenged the complainant to file case against him.

3.      The complainant then carried out inspection of the apartment by engaging Civil Engineer Mr.Ajay V.Palarpawar, who conducted spot inspection and has reported anomalies in the construction in his detailed report dated 22/2/2018. He has observed that the cost of Rs.1,51,500/- would be required to complete the incomplete work left by the OP. The complainant then issued legal notice through Adv.Shaikh to the OP but the OP did not respond. Hence the complainant has filed this complaint.

4.      The complaint is admitted and notice was served on the OP. The OP filed its reply and thereby denied allegations as against it and submitted that the construction of the apartment is carried out by the OP as per sanctioned map and within time frame, however, as the registration charges were to be paid by the complainant, and his mother being ailing, the complainant himself was avoiding to get the sale deed executed since two years. The OP also denied to have recovered any excess amount of Rs.1,50,000/- from the complainant. The complainant in fact took physical possession of the flat in 2015 itself and got sale deed executed on 28/6/2017. Thereafter also he used flat for 8 months and then obtained a favourable survey report by engaging a private engineer of his choice. However, the OP has completed the construction work and then only execution of sale deed was effected. Hence there is no deficiency in service on its part and the complaint being falacious, is liable to be dismissed with cost.

5.     Counsel for the complainant as well as that of the OP argued on the lines of their respective pleadings.

6.    We have gone through the complaint, written version filed by OP, affidavit, documents and WNA filed by the parties. We have also heard the oral arguments advanced by parties.

                    Points                                                                             Finding

1. Whether the complainant is a Consumer ?                                    Yes

2.  Whether  there is deficiency in service on the part

   of OP ?                                                 Yes

3.  What order ?                                                                  As per final order..

As to issue No.1

7.      The O.P.No.1 executed an agreement to sale dated 31/1/2011 in favour of the complainant agreeing  to sale Flat No.SF-06 in the apartment scheme named and styled as Madhav Tower to be constructed by the OP on Plot No.1,2,3,6,7,8,9 &10 at Mouza Chanda-datala,Survey No.62/1 admeasuring 2701.48 alongwith undevided share of 22.51 Sq.Mt. for Rs.6,50,000/-. The OP, in furtherance, executed registered sale deed on 28/6/2017. Both these documents are filed on record. In view of this, undisputedly, the complainant is a consumer within the meaning of Section 2(1)(d) and the services as promised are the services within the meaning of section 2(1)(d)(ii) of CP act. and hence the issue is decided accordingly.

As to issue No.2

8.        The complainant has filed agreement of sale dated 31/1/2011 executed between the complainant and OP. It is averred by the complainant that the OP did not complete the construction work, the construction work was not done as per sanctioned plan and he has used substandard material and the complainant was in diar need of residential dwelling, he accepted possession of incomplete flat and got the sale deed executed from the OP on 28/6/2017. However, within eight months he noticed seviour anomalies and shortcomings in the construction work and hence he requested the OP to complete the construction but it failed on deaf ears and hence he engaged a Civil Engineer who, after inspection gave detailed report mentioning anomalies in the construction and substandard material used in it. The complainant has filed said report dated 22/2/2018 given by Civil Engineer Mr.Ajay V.Palarpawar on record at Exh.5 Doc.No.7. In the report, said Engineer has observed that there are serious shortcomings as detailed in the report, in the construction of the flat in question and it would require a cost of Rs.1,51,500/- to complete the incomplete work left by the OP. Besides that the complainant has also filed on record the photographs to show the shortcomings in the construction. Perusal of these documents sufficiently establish the averments of the complainant to be true. The Civil Engineer Mr.Palarpawar has clearly concluded that, “As the said premises is a new construction habitant has to be comfortable environment but builder did very bad quality construction with lot of negligence.” The OP has denied this document. However, he has not filed any cogent evidence on record to negate it. This being the position, we are convinced that the OP has not completed the construction work and thereby rendered deficient service to the complainant. As such, the complainant is entitled to Rs.1,51,500/- i.e. the cost of completing the incomplete work alongwith interest thereon @9% p.a. from date of admission of the complaint i.e. 12/3/2018 till realization.

9.   The OP has executed the sale deed on the flat in question in favour of the complainants father on 28/6/2017 vide sale deed No.2383/2012 with recital at page   3 that the flat is sold with electric fitting and sale deed is unconditional for any arrears of money on the other hand, there is recital in sale deed that, all amount has been received towards conveyancing of flat. Hence the prayer clause “c” for receipt of excess amount of Rs.60,600/- towards cost of flat & Rs.1,00,000/- towards registration charges of flat is unacceptable. Hence the prayer clause “c” & “d” in the complaint are dismissed.

As to issue No.3

10.      In view of our observations supra, the complaint is partly allowed as detailed in the final order below..

Final order

1. The Complaint is partly allowed.

2. The OP shall pay to the complainant an amount of Rs.1,51,500/- i.e. the cost of completing the incomplete work alongwith interest thereon @9% p.a. from date of admission of the complaint i.e. 12/3/2018 till realization.

3. The OP shall pay Rs.10,000/- to the complainant towards compensation and cost of litigation.

4.  Copy of the order be furnished to both the parties free of cost.

(Smt.Kalpana Jangade (Kute)  (Smt.Kirti Vaidya (Gadgil)     (Shri.Atul D.Alsi)

               Member                                 Member                                    President