(Passed on 30/08/2022)
Passed by Shri Atul D. Alsi, Hon’ble President
1. The complainant booked flat No. 1 on second floor at S.S.T. Galaxy apartment at Mouza Bamni, Survey No. 150/3 against the price of Rs. 8,90,000/- and paid Rs. 50,000/- on 05/08/2012, Rs. 1,50,000/- on 02/10/2012 and Rs. 2,00,000/- on 01/12/2012. The complainant paid total amount of Rs. 4,00,000/- in cash towards partial consideration towards purchase of flat. The complainant has arranged the remaining amount of flat on 07/08/2014 but O.P. failed to construct the flat as agreed. There was only construction made up to first floor and remaining construction yet to be started. Thereafter the complainant visited at several times at construction site but O.P. failed to construct the flat scheme as agreed. Thereafter the complainant issued legal notice through Adv. Mr. Rafique Sheikh on 26/11/2018 but notice has not been complied by the O.P. Therefore, the present complaint is filed.
2. The O.P. admitted in reply the complainant booking of flat against the price of Rs. 8,90,000/- and paid accordingly Rs. 4,00,000/- in cash . The O.P. submitted in reply that the O.P. has never breach the contract of construction. On the other hand the complainant failed to pay remaining balance amount of flat, therefore the complainant has himself breached the terms and conditions of contract. The O.P. has submitted in reply that the breach of contract is to be decided by oral evidence as there was no written agreement on development between the parties. Therefore, the matter cannot be decided by summary trial. Hence, the case may be sent to Civil Court for adjudication. There is no merit in submission of the complainant in the present complaint case. Hence, case is deserves to be dismissed with cost.
3. We have heard advocates of both the parties. We have also perused the complaint, reply filed by the O.P., affidavits and documents filed by both the parties.
REASONING
4. The complainant paid Rs. 4,00,000/- in cash from 05/08/2012 to 01/12/2012 as per receipt issued by the O.P., which is filed on record by the complainant as per list of documents dated 24/12/2018 towards construction of flat in S.S.T. Galaxy Scheme of O.P. at Mouza Bamni, Survey No. 150/3 for the total consideration of flat amounted to Rs.8,90,000/- as per admission of fact in reply by the O.P. Admittedly, the O.P. failed to construct the flat within a reasonable period of time and failed to deliver the possession along with execution of sale deed after several requests from the complainant till the issuance of legal notice by the counsel for the complainant on 26/11/2018 or failed to refund booking of amount along with interest to the complainant for non completion of construction work as agreed. There is no demand letter filed on record by the O.P. in respect of payment of arrears of flat amount to support the contention for the nonpayment of balance amount from the complainant. After receipt of amount for construction and holding the amount for unreasonable period of time without completion of work of construction does amount to deficiency of service on the part of the O.P. Therefore, the O.P. is liable to refund an amount of Rs. 4,00,000/- at the rate of 9% p.a. from admission of case on 08/01/2019 till its realization along with compensation for mental torture amounted to Rs. 50,000/- and Rs. 10,000/- towards cost of litigation as per following order.
ORDER
i. Complaint is partly allowed.
ii, The O.P. shall refund to the complainant Rs. 4,00,000/- with interest at the rate of 9% p.a. from date of admission of complaint i.e. from 08/01/2019 till its realization .
ii The O.P. shall also pay to the complainant compensation Rs. 50,000/- towards for mental torture and Rs. 10,000/- towards cost of litigation.
iii. Copy of order be furnished to both the parties free of cost.
