Complaint No. :206/2009 Filed on : 17/03/2009 Decided on : 03/04/2010 Duration : 01 year 0 months 16 days BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM COLLECTOR OFFICE, ROOM NO. 214, IIND FLOOR, THANE) Mr. Siyalal Kandu Gupta R/a Upkar Dairy, Rd.no.22, Beside Panchsil Mira Mandal, Wagale Estate, Thane(W), Dist – Thane. ..Complainant V/s. 1. Sau.Pushpa Shyamkant Shukla The Prop of M/s. Ashtvinayak Contructions 2.Mr. Shyamkant Shukla 5th floor, MTNL Office, Cury Road(E), Mumbai. Both having site office at S.No.53/3, Opp. Diva Rly.Stn., Diva (E), Dist Thane. Head Office at Shop no. 5, Q-10, Transit camp, 90 feet Rd., Sion, Mumbai 400 017. ..Opponent
CORUM : HON'BLE PRESIDENT : SAU. SHASHIKALA S. PATIL HON'BLE MEMBER : MR. P. N. SHIRSAT Complainant through Adv. MUKESH S. TIWARI Opposite Party through Adv. S.S.BUTALA J U D G E M E N T (3rd April 2010) HON'BLE MEMBER : MR. P. N. SHIRSAT 1. This complaint is filed as per section 12 Under Consumer Protection Act 1986 and the brief facts of the complaint are narrated as under:- That the Complainant approached to the Opponent no. 1 who is the proprietor of M/s. AsthVinayak Construction who was indulged in building and development activities and the Opponent no. 2 is the husband of the Opponent no. 1 who has been doing bulk activities for and on behalf of the Opponent no. 1 who stated to the Complainant that vide development agreement dated 29/04/2004 from Mr. Bhoir and family, the opponents are carrying on construction activities on plot survey no. 53 Hissa no. 3 at Village Diva within the limits of Thane Minicipal Corporation. The Opponent agreed to complete the building on or before December 2007. Therefore the Complainant agreed to purchase a residential flat no. B-6 on 3rd floor area admeasuring 315 sq. ft.@ Rs.800/- per sq. ft.for total consideration for Rs. 2,52,000/-. Accordingly the Complainant has paid Rs.10,000/- vide cheque no. 88352 dt. 06/07/2004. The Complainant also paid Rs.15,000/- vide cheque no.88357 dt. 24/01/2005 and also Rs.15,000/- as cash on dt. 20/05/2005. Thus .. 2 .. by paying total Rs.55,000/- the Complainant has paid more than 20% amounts as agreed consideration. The Complainant states that the building constructed by the Opponents is completed, but the Opponents neither executed the agreement for sale in favour of the Complainant nor intented to handover possession of flat no. 6 in the aforesaid building thereby causing hardship and harassment to the Complainant. Therefore the Complainant has issued notice to the Opponents on dt.17/12/2008. The Opponents replied the notice on dt. 08/01/2009 thereby admitting the receipt of Rs.55,000/-. The Complainant contacted to the Opponents on dt. 27/01/2009 and on 30/01/2009 and the Complainant also visited the office of the Opponents alongwith 9 other Complainant but the Opponents demanded an additional amount of Rs. 300/- per sq. ft. extra for which the Complainants are not ready since the demands of the Opponents are illegal and unlawful. Being aggrieved and dissatisfied by the attitude of the Opponents the Complainant has filed the complaine in the Forum stating therein that the cause of action took place on dt. 14/01/2008 when the Opponents did not fulfilled their promise to handover the possession of the flat. The Opponents have carried out construction at Diva, Dist – Thane, hence this Forum has territorial as well as pecuniary jurisdiction to adjudicate and decide this complaint. The prayer of the Complainant is as follows:- 1.To direct the Opponents to receive balance consideration amount from the complaint and handover possession of flat no. B-6 on 3rd floor admeasuring 315 sq. feet in the building at survey no. 53, Hissa no. 3 at Village Diva, Dist – Thane by duly entering into the agreement for sale. Or 2. The Opponents to refund Rs. 55,000/- received by them towards consideration in respect of flat no. B-6 or 3rd floor alongwith 18% p.a w.e. f. 14/01/2008. 3. The Opponents to pay Rs.1,00,000/- to the Complainant jointly and severally towards mental and physical harassment. 4. The Opponent to pay Rs. 10,000/- to the Complainant towards legal expenses. 5. Any other reliefs which may deem fit and proper.
2. The Forum issued notice to the Opponents vide Exhibit no. 5. The Opponents filed application for granting time to file written statement vide Exhibit no.6 and filed vakalatnama vide Exhibit no.7 and also filed written statement vide .. 3 .. Exhibit no. 8 fully supported by affidavits of Opponent no. 1 and 2 vide Exhibit no.9 and 10 and list of documents vide Exhibit no.11 Whereas the Complainant has filed rejoinder vide Exhibit no.12 and written agruments vide Exhibit no.13. The Opponents did not file any written arguments. The contents of the written arguments of the Opponents are as follows:- The Opponent no.2 has no concern with construction activities and he is not project manager. The Opponents has not given any promise of delivery of possession before December 2007. The Construction work was looked after by Ramakant Shukla and not by Opponent no. 2. The Complainant has not followed schedule of payment slabwise. The Complainant has not paid stampduty or registration charges. The Complainant has ignored the notice of the Opponent and neither paid the amount. The Complainant has not fulfilled contractural obligation whereas the Opponents have not committed any deficiency in service vide para no.3 the Opponents have agreed for receipt of Rs.40,000/- instead of Rs. 55,000/- The Complainant is not entitled for Rs.1,00,000/- towards damages @18% interest pa and cost of Rs.10,000/- as the complaint is false. The Complainant is liable to pay Rs.20,000/- to the Opposite Party for making false claim. Hence the complaint be dismissed with cost. In this complaint we have carefully scrutinised the documents filed by the Complainant rejoinder and written arguments as well as the written statement with affidavit of the Opponents. The Opponents did not file written arguments though ample opportunity was given to them. The two question arises in this complaint for our consideration is as under:- A) Whether the Complainant has proved any deficiency in service committed by the Opponents? Answer yes. B) Whether the Complainant is entitled for compensation on account of mental harassment and also legal expenses? Answer Yes. R E A S O N S A) Explanation:- The Opponents has clearly admitted in the paragraph no. 3 that they have taken Rs. 40,000/- and not Rs. 55,000/- from the Complainant towards consideration for the flat no, B-6 3rd floor admeasuring 315 sq. feet area in the building survey no. 53, Hissa no. 3 at village. Diva, Dist – Thane. Therefore it is crystal clear that there was a privity of contract and also consideration between the parties. The Opponents are legally bound to comply the statutory oblilgation of handing over possession of flat or the market price of the flat. The Opponents are also liable to fulfill their contractual obligation under the provision of the .. 4 .. Maharashtra Ownership Flats Act of 1963. Non-fulfillment of the Contractual obligation amounts to deficiency in services as well as it amounts to unfair trade practice committed by the Opponents towards the Complainant. B) Explanation : After receipt of substantial amount from the Complainant as ageed in their written statement vide para no. 3. It is the duty and responsibility of the Opponents to accept the balance payment of the flat as per terms of agreement and handover peaceful possession of the flat. But arbitrarily the Opponent increased the rate of flat for which the Complainant is not ready. Hence the Opppoents are deficient in their service towards the Complainant which has caused mental and physical agony and harassment to the Complainant. For the rightful demands the Complainant has to file the complaint before the Forum for redressal of his grievances causing not only inconveniencies but also financial loss. Therefore the Opponents are liable and duty bound to comply the contractual obligation or refund the amount collected from the Complainant. The prayer of the Complainant is just and reasonable. Therefore we pass the following final order. O R D E R 1. Complaint no. 206/2009 is partly allowed. 2. The Opponents are ordered to accept the balance consideration amount from the Complainant and hand over possession of flat no. B6 on 3rd floor area 315 sq. ft in building at survey no. 53, Hissa no. 3 at village-Diva, Dist Thane duly entering into agreement for sale. or 3. The Opponents are ordered to refund Rs. 55,000/- received by them from the Complainant alongwith 9% interest p.a w.e.f 14/01/2008. 4. The Opponents are ordered to pay Rs.10,000/- to the Complainant towards compensation on account of mental and physical harassment. 5.The Opponent are ordered to pay Rs.5,000/- to the Complainant towards legal expenses.
.. 5 .. 6. The Opponents are ordered to follow this order jointly and severally within 30 days from the receipt of this order jointly and severally withi 30 days from the receipt of this order failing which an additional penal interest @ 3% pa. Shall be payable w.e.f passing of this order. 7. Certified copies be furnished to the parties free of charges.
THANE DATE : 03/04/2010
(MR. P. N. SHIRSAT) (SAU. SHASHIKALA S. PATIL) MEMBER PRESIDENT | 
