Case No. 211/2023   

IN THE MATTER OF

Mohd. Ahmad Khan age about 60 years  S/o Hurmat Ali  R/o 4/8 Darul-Uns-Pan Wali Kothi Dodhpur,Aligarh

                                           V/s

1. Shakeel Khan, Director, Naseman Constructions, Hasan Manzil, Amir Nisha, Civil Lines Aligarh
2. Syed Ali Raza S/o Mohsin Raza R/o Hasan Manzil, Lal Diggi Road, Amir Nishan Aligarh

     3. Khan Asad Ullah age about 52 years S/o Hurmat Ali  R/o 4/8    Darul-Uns-Pan Wali Kothi Dodhpur,Aligarh

CORAM

 Present:

1. Shri Hasnain Qureshi, President
2. Shri Alok Upadhayay, Member
3. Smt. Purnima Singh Rajpoot, Member

PRONOUNCED by Shri Hasnain Qureshi, President

JUDGMENT

1. The present complaint has been filed by the complainant before this commission for following reliefs:-

1. Op be directed to deliver the possession of the flats within a month or to refund the amount Rs.4750000 with interest @18% per annum from 20.1.2021 till the date of payment.
2. Op no. 1 be directed to pay compensation Rs.14400000 with interest @18% per annum from the month July, 2019 till the date of filing the case.
3. Op no.1 be directed to pay the amount Rs.20000 as litigation expenses.

2. Complainant has stated that he and his brother Khan Asad Ullah were suggested by the Op no.2 for investment in purchasing the flat at the apartment constructed by the op no.1. Op no.1 offered to sale 3BHK flat no. 1 and 2BHK flat no.6 at the first floor of the project for Rs.5700000 and the amount Rs. 4700000 was to be paid during the period of construction of the flats and the balance amount Rs.1000000 was to be paid at the time of execution of sale deed. Complainant paid the amount Rs.100000 in cash and Rs.250000 through bank transaction  total Rs.350000 to op no.1 through Op no.2 vide receipt dated 2.11.2017 and the remaining amount Rs.4350000 was paid directly to op no.1 on different dates through receipts. The payment receipts were issued after completion of bank transactions. Complainant paid the total amount Rs.4750000 from 20.7.2016 to 20.1.2021 and op no.1 was liable to deliver the possession of the flats within three years by the month July, 2019 and later on he promised to handover the possession of the flats by month of July,2022. Op no.1 made the false assurances to deliver the possession of the flats and failed to discharge his obligation and committed deficiency in service. Complainant and his brother are entitled to get the possession of the flats but he failed and thus complainant and his brother are entitled for refund of the money Rs.4750000 with interest @18% per annum. Complainant has also stated that they were deprived from use and enjoyment of the flats since the month July, 2019 and they are entitled for compensation at the rate Rs.30000 per month, total amount 1440000 with interest @18% per annum from July, 2019. Complainant has stated the grounds for condonation of delay U/s 69(2) of the Act, 2019.                 

3. Op no.1 stated in WS that a transaction for purchasing the flats for Rs.5700000 was settled with the brother of the complainant and the payment of Rs.350000 was made to op no.2 and the op no.1 has no concern with that. It was agreed that the payment shall be made during the period of construction but full payment was not made. At the request of the complainant’s brother amount Rs. 275000 was incurred in wall sealing and the amount Rs.450000 was incurred in wood work. OP no.1 has also raised objection as to the maintainability of the complaint filed by the complainant on the ground of existing no agreement with the complainant. 

4. Op no.2 has not filed WS despite of sufficient service.        
5. Complainant has filed his affidavit and papers in support of his pleadings. Op no.1 has also filed  affidavit and papers in support of  pleadings.  

6. We have perused the material available on record and heard the parties counsel.

7. The first question of consideration before us is whether the complaint filed by the complainant is legally maintainable?

8. Complainant has stated that he and his brother op no.3 met with the Op no.1 through op no.2 and the purchase 3BHK flat no.1 and 2BHK flat no6 at Saeed Apartment Hasan Manzil promoted and developed by the Op no.1. Complainant also stated that his brother Op no.3 is presently living aboard and therefore he could not be impleaded in the case and the complaint is being filed to protect his interest impleading him as Op no.3. As there is no conflict of interest between the complainant and his brother op no.3 and therefore complaint could be filed by the to protect his interest as well as interest of the op no.3. Thus the complaint is legally maintainable.   
9. The question formulated above is decided in favor of the complainants.
10. The second question of consideration before us is whether the complainant is Consumer?
11. Op no.1 has moved application dated 28.2.2024 through his counsel through Sri Avinash Sharma alleging that the complainant does not fall within the category of consumer. Undisputable  dispute involved in the case is between the complainant and op no.1 who is the director of Nasheman Construction who offered to sell the two flats for the consideration out of which the amount Rs.4700000 was paid to the Op no.1. Thus in view of law laid down by Hon’ble Supreme Court in the case Lucknow Development Authority V/s M.K. Gupta  decided on 5.11.1993, the complainant being the purchaser of the flats constructed by the OP no.1 is consumer within the definition of consumer u/s 2(7)(ii) of the Act,2019 .   
12. The question formulated above is decided in favor of the complainants.
13. The  Thirdquestion of consideration before us is whether the complainant is entitled to any relief?
14.  Complainant has stated that the amount Rs.350000 was paid to Op no.1 through op no.2 and the remaining amount Rs. 4350000 was directly paid to the op no.1 and thus total amount Rs.4700000 was paid. Complainant has proved the payment with the payment receipts and bank statement. The payment of the said amount was made by the date 20.1.2021. Op no.1 was liable to deliver the possession of the flats within three years i.e. month July.2019. Op no.1 has failed to discharge its obligation and committed breach of contract and is liable to compensate the complainant for the deficiency in service. Accordingly OP no.1 is liable to refund the money amounting Rs.4750000 with interest @ 18% per annum from 20.1.2021 till the date of actual payment and is also liable to compensate the complainant and his brother for depriving them from use and enjoyment of the flats from the month July, 2022 till the date of filing the case @30000 per month with interest @18% per annum from the month July, 2022 till the date of actual payment.     
15. The question formulated above is decided in favor of the complainants.
16. We hereby direct the Op no.1 to refund the amount Rs.4750000 with interest @ 18% from 20.1.2021 till the date of actual payment and Op no.1  also directed to pay compensation for depriving the complainant and his brother for use and enjoyment of the flats from July,2022 till the date of filing the complaint with interest @ 18% per annum.
17. Op no.1 shall comply with the direction within 30 days failing which Ops shall be prosecuted for non-compliance in accordance with section 72 of the Act for awarding punishment against him.
18. A copy of this judgment be provided to all the parties as per rule as mandated by Consumer Protection Act, 2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
19. File be consigned to record room along with a copy of this judgment.