(Passed on 03/05/2023) Per Mr. Atul D. Alsi, Hon’ble President - The complainant filed a complaint case for non completion of construction and execution of sale deed as agreed against the OP/builder for refund of cost of flat of Rs. 6,66,666/- along with interest and escalation price of Rs. 20,00,000/- and rent for the house from 11/01/2018 till today along with cost of litigation.
- The complainant agreed to purchase a flat to be constructed on Sheet No. 88, Nazul plot No. 94/3,102,103 having 894.4 square meter by OP which is purchased from complainant and 13 co-owners and relatives of complainant vide registered sale deed No. 174/2016. The complainant paid cost of flat of Rs. 6,66,666/- through cheque on 12/01/2016 and sale deed to be executed after two years. But the OP failed to construct the flat scheme and failed to execute sale deed. Therefore, the complainant issued legal notice through advocate on 10/02/2020 and OP did not comply the notice. Therefore there is deficiency on the part of OP for non compliance of agreement of sale which is executed on 11/01/2016. Therefore, the complainant is claiming refund of consideration of flat along with escalation price and cost of litigation.
- The OP filed reply and denied allegation and admitted that the OP failed to execute possession and sale deed of flat. The OP purchased, the proposed land from the complainant’s and co-owners of land vide executing sale deed bearing No. 174/2016 but one of the legal heir Mr. Vasudeo Ramaji Vankar has filed Civil Suit No. 82/2018 for partition and possession of 1/36 share from the said layout. Therefore, due to pendency of Civil Suit, the flat scheme could not be completed and sale deed cannot be executed in favor of complainant. On the other hand, due to non completion proposed flat building, the OP has suffered loss. There is no negligence on the part of OP and hence the case is deserves to be dismissed.
- The counsel for complainant Mr. Abhay Kullarwar argued that the complainant has paid full consideration of flat in the year 2016 and OP as per agreement failed to construct the flats and execute the sale deed till today. Therefore, the OP is liable to pay escalation cost of Rs. 20,00,000/-. There is no stay for the construction from Civil Court and petition filed in Civil Court for partition and which has no nexus with proposed land to be used for construction of apartments.
- The counsel for OP advocate Mr. Bajaj submitted that one of the legal heir has filed Civil Suit for partition and therefore due to pendency of Civil Suit in respect of proposed land to be used for apartment, the construction could not be completed till the year 2018 as agreed. Therefore, there is no negligence on the part of OP for delayed construction. The land owners and complainant are responsible for delayed construction due to pendency of Civil Suit.
REASONING - The complainant has paid full amount of consideration of Rs. 6,66,666/- for purchase of flat on 11/01/2016 but the OP failed to construct and failed to execute the sale deed in favor of complainant as agreed within two years. The pendency of Civil Suit bearing No. 82/2017 having no nexus and hurdle in construction of proposed apartment by OP. There is no stay from Civil Court in respect of construction of apartment. Mere pendency of Civil Suit for the proposed layout does not extinguish the right of construction. When OP could not construct the apartment as agreed within two years then OP/builder has to refund the earnest amount to the complainant. But admittedly the OP has not refunded the construction amount of flat to the complainant. Therefore, there is negligence on the part of OP. Therefore, the OP is liable to refund consideration amount of flat Rs. 6,66,666/- along with interest at the rate of 9 percent per annum from the proposed date of execution of sale deed in favor of complainant that is 10/01/2018 till realization along with escalation price of flat Rs. 3,00,000/- and cost of litigation amount of Rs. 10,000/- to the complainant as per Judgment of Hon’ble State Consumer Disputes Redressal Commission, Maharashtra, Nagpur Bench in first appeal No. CC/11/8 in Ramesh Talewar Vs. Sahara India Company Ltd. holding that the builder unable to hand over possession and to execute sale deed due to any difficulty then builder shall refund Rs. 4,0,2486/- to the complainant with interest @ 15% per annum from the date of complaint till realization. Also to pay compensation of Rs. 5,00,000/- towards unfair trade practice and escalation price of the tenements as per following order.
ORDER - The complaint is partly allowed.
- The OP shall refund Rs. 6,66,666/- of the flat to the complainant along with interest @10% from the date of judgment till realization and compensation for mental torture and escalation price of Rs. 3,00,000/- and shall also pay litigation cost of Rs. 10,000/-
- Copy of order be furnished to both, parties free of cost.
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