Advocate Shri. Milind R. Suryavanshi for the complainant
Advocate Nitin K. Joshi for the Opponent
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 7th December 2013
This complaint is filed by consumer against builder developer for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainant is resident of Solapur Bazar, Camp, Pune 411 001. The Opponent is dealing in the business of construction. Opponent is developing a residential project named as ‘Shree Nagari’, Dhanori, Pune 411 015. Complainant was in search of suitable flat. Hence, she approached the Opponent and booked flat No. 503, admeasuring 641 sq.ft, on the fifth floor of Shree Nagari Project. The total consideration of the flat was Rs.14,42,250/-. Complainant also agreed to pay Rs.1,51,000/- to the Opponent has development charges in addition to the cost of the flat. On 21/1/2011 she has paid Rs.1,00,000/- by issuing cheque no.115683. Thereafter on 20/2/2011 she had paid Rs.50,000/- by cheque no. 117406. Complainant approached to the opponent from time to time and asked him to execute registered agreement so that she could avail loan for remaining amount. But the Opponent did not execute the agreement. She had also informed the opponent that she is going to withdraw advance from provident fund account. However, all of a sudden, in the month of April 2011 opponent issued cancellation letter by saying that the complainant did not pay the balance amount. Opponent had also informed to collect the amount of Rs.1,50,000/- which was paid by the complainant. On 15/4/2011 complainant visited the office of opponent. At that time, opponent asked her to take back the booking amount by accepting cheque of Rs.1,50,000/- She refused to accept the said amount. Opponent has deposited the said amount in her saving account. Thereafter complainant had issued notice to the opponent through Advocate and called upon to execute the agreement of the suit flat. The Opponent failed to comply with the notice. Hence, she has filed present complaint and asked the opponent to execute the agreement for sale, hand over the document of title and possession of the flat. She had also asked compensation of Rs.1,00,000/-
[2] Opponent appeared before the Forum and resisted the claim by filing written version. According to the Opponent there was no concluded contract between the complainant and themselves. Complainant did not pay the cost of flat in time. Hence, her booking was cancelled. Complainant had enjoyed the amount which was returned to her by the Opponent. She had not deposited the said amount in the Forum. It is also contended that the Opponent has sold out the flat to the third party. Hence, the relief which is claimed by the complainant cannot be given. Opponent has prayed for dismissal of the complaint.
[3] After scrutinizing the documentary evidence on record, affidavit and written argument, following points arise for my determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether complainant is entitled for execution of agreement and possession of the flat ? | In the negative |
2 | Whether complainant is entitled for compensation ? | In the affirmative |
3 | What order ? | Complaint is partly allowed. |
Reasons-
As to the Point Nos. 1 to 3-
[4] Admittedly complainant has paid Rs.1,50,000/- to the Opponent has booking amount of the flat. She has produced quotation which was given by the opponent to her. It reveals from the same that the contents as regards price of the flat appear to be correct. It also reveals that there must have been negotiations between the complainant and the opponent. As the opponent had not executed any agreement which is required under the provisions of MOFA, it is very difficult to accept that there was a contract between the parties as alleged. But it reveals from the record that the opponent has willfully deposited the booking amount in the account of the complainant and sold out the flat to the third party. This indicates that the opponent was not ready to execute the agreement for sale in favour of the complainant. It is significant to note that the opponent has not informed the complainant in writing about depositing of amount in her saving account. In such circumstances, I held that the complainant must have sustained mental torture as well as physical agony. As the flat is already sold out to third party, complainant has to approach Civil Court as there is no privity of contract between the third party and the complainant. This Forum cannot grant relief of execution of agreement for sale with respect to the disputed flat. However, complainant is compensation for mental agony, inconvenience and costs to the tune of Rs.10,000/-.
I answer the points accordingly and pass following order-
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that opponent has caused deficiency in service.
3. Opponent is directed to pay amount of Rs.10,000/- to the complainant towards compensation for mental agony and inconvenience and costs of litigation within six weeks from the date of receipt of copy of order.
4. If the amount is not paid or deposited within the stipulated period it shall carry interest @ 9% p.a. from the date of filing of complaint till its realization.
5. Both parties are directed to collect the sets which are provided for the 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.
Place – Pune
Date – 07/12/2013
