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Advocate Jayashree Kulkarni for the complainant
Advocate Dattatray Dixit for the Opponent
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date- 25th April, 2014
This complaint is filed by flat purchaser against the builder and promoter for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainant is resident of Shivane, Pune 411 023. Opponent is builder and promoter by profession. It is the case of the complainant that Opponent has started construction at Shivane and complainant had expressed his willingness to purchase flat admeasuring 250 sq.ft which is situated at Shindewadi. Complainant paid Rs.54,000/- and Rs.24,000/- on 14/03/2008 and 15/03/2008 as booking amount. But Opponent has failed to start construction within two years. Hence, Opponent has suggested the complainant to book flat in new scheme at village Shivane, Sinhagad Road, Pune. Complainant agreed for the same. Opponent agreed to sale out flat No.B 29, 5th floor, admeasuring 717.36 sq.ft. The total consideration of the flat was Rs.11,45,000/-. Complainant has asked papers which were required for obtaining loan. But the Opponent could not provide the same. Amount of Rs.1,68,000/- was paid by the complainant to the Opponent. But Opponent failed to execute the agreement. Opponent is demanding excess amount for execution of registered agreement. It is the case of the complainant that, that amounts to deficiency in service. Hence, he has filed present complaint. Complainant has prayed for directing the Opponent to execute the agreement. He has also prayed for handing over the legal documents for loan proposal. He has further prayed for compensation of Rs.75,000/- towards mental agony and inconvenience and Rs.5,000/- towards costs.
[2] Opponent resisted the claim by filing written version. It is the case of Opponent that evenafter the plan of building was sanctioned by the Grampanchayat, Government has decided that, there should not be any construction or agreement as regards sale and purchase over the disputed property. It is admitted by the Opponent that, Complainant had paid Rs.1,68,000/-. Eventhough the construction is completed the Opponent is not able to execute the agreement due to legal impediment as there is ban for execution of the agreement. Opponent is ready to return the amount of consideration which was received from the complainant. Opponent has prayed for dismissal of the complaint.
[3] After considering the pleadings of both parties, scrutinizing the documents and hearing the argument, following points arise for the determination of this Forum. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether the complainant has established that there is deficiency in service ? | In the affirmative |
2 | Whether the complainant is entitled for refund of amount which was paid by him ? | In the affirmative |
3 | What order ? | Complaint is partly allowed |
Reasons -
As to the Point Nos. 1 to 3-
[4] The undisputed facts in the present proceeding are that the complainant had approached to the Opponent for purchasing the disputed flat and paid Rs.1,68,000/-. It is not disputed that the Opponent has failed to execute the agreement as well as to handover the legal documents to the complainant for loan purpose. It is the case of the Opponent that the Government has abruptly banned to execute the agreement and development on the disputed area. Hence, he is unable to execute the agreement as well as to handover the legal documents. In such circumstances, there is no deficiency in service on his part. It is significant to note that unless and until the plan is sanctioned or approved by the local authorities, the Opponent was not entitled to collect the amount from flat purchaser. As he had collected the amount and failed to execute the agreement, this fact itself is sufficient to hold that the Opponent has caused deficiency in service.
[5] After considering the facts and circumstances of the present proceeding it is not possible for the Forum to direct the Opponent to execute the agreement. The only option remain is to direct the Opponent to refund the amount which was received from the complainant.
This Forum answers the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is partly allowed.
2. Opponent is directed to refund amount of Rs.1,68,000/- [Rupees One Lakh Sixty Eight Thousand only] to the complainant within six weeks from the date of receipt of copy of order.
3. Opponent is directed to pay amount of Rs.5,000/- [Rupees Five Thousand only] to the Complainant on all the counts i.e. towards compensation for mental and physical agony and costs of the litigation within six weeks from the date of receipt of copy of order.
4. Both parties are directed to collect the sets which are provided for the Hon’ble Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
