Per Mr B A Shaikh, Hon’ble presiding Member

1.      This complaint is filed under Section 17 of Consumer Protection Act, 1986.

2.      The case of the complainant in brief is as under.

a.      The opposite party No.1 is the Proprietor of opposite party No.2 Khobragade Associates. The opposite party Nos.1 & 2 are engaged in development activity by making construction of bungalows on their own land and to sell them. An agreement was entered into between the complainant and them on 29.01.2015 by which it was agreed that the opposite party would construct a bungalow on its plot and would execute sale-deed of the same in favour of the complainant for a consideration of Rs.35.00 Lakhs. The sale-deed was to be executed within two years from the date of agreement i.e. from 29.01.2015.

b.      The complainant initially paid Rs.12.50 Lakhs to the opposite party by Cheque No.626334 on 28.01.2015 and he then paid Rs.1.00 Lakh to opposite party on 04.02.2015.  However, the opposite party did not start construction after lapse of considerable time.  Therefore, the complainant issued legal notice dtd.08.12.2017 through his advocate to opposite party calling upon opposite party to refund Rs.13.50 Lakhs with interest and also to pay compensation.  The opposite party did not give reply despite receipt of that notice.  Hence, alleging deficiency in service on the part of the opposite party, this consumer complaint is filed by the complainant seeking following reliefs.

i.        The opposite party be directed to complete the construction of the independent house / bungalow No.4 as per agreement and to execute the sale-deed in favour of the complainant and to pay compensation of Rs.20.00 Lakhs for the delay in construction and delivery of possession as well as the execution of sale-deed.

ii.       Alternatively, direct the opposite party to refund Rs.13.50 Lakhs with interest @ 18% p.a. from 28.01.2015 till its realisation by the complainant and also to pay compensation of Rs.20.00 Lakhs towards loss and damages.

iii.      Direct the opposite party to pay litigation cost of Rs.40,000/-.

3.      The complainant alongwith the complaint filed copies of the Agreement dtd.29.01.2018, Bank Account statement from 01.04.2014 to 30.03.2015, Receipt dtd.04.02.2015, issued for Rs.1.00 Lakh by the opposite party, photographs of the land, legal notice dtd.08.12.2017 and police report dtd. 09.01.2018.

          The complainant also filed evidence affidavit in support of the complaint.

4.      This Commission issued notices alongwith compilation of the complaint to opposite party Nos.1 & 2.  The said notices have been duly served to opposite party No.1 & 2 as seen from the acknowledgement received, signed by the opposite party No.1 and postal letter dtd.20.07.2018 produced by the complainant, showing service of said notice. The complainant also produced postal slips by which the said notices were sent by him to opposite party Nos.1 & 2. But the opposite party Nos.1 & 2 failed to appear despite service of said notice.  Therefore, this Commission proceed exparte against them.

5.      We have heard advocate Mr S B Solat for the complainant. We have also perused the entire record & proceedings of the complaint.       The learned advocate of the complainant has drawn our attention to the aforesaid documents filed on record and submitted that the said documents fully support the case of the complainant. He, therefore, requested that the reliefs sought for in the complaint may be granted.  He relied on the decision of the Hon’ble National Commission in the case of Bajwa Developer Ltd Vs. Keshave Kumar & Ors., II(2018) CPJ 315 (NC).

          In that case also after booking of apartment, its construction was not completed and possession was also not delivered.  Therefore, the District Forum allowed the complaint and the learned State Commission dismissed the appeal. It is observed by the Hon’ble National Commission in revision petition  that the petitioner did not complete the construction and offer possession to complainants for more than four years from the date of execution of agreement with them. The agreement was also not cancelled by the opposite party / respondent. Hon’ble National Commission further observed that having conconded alleged default on part of flat buyers in making payment of balance amount, petitioner cannot deny compensation in the form of interest. Therefore, refund of amount alongwith interest was directed.

6.      We find that the complaint is duly supported by the aforesaid documents filed by the complainant. The agreement dtd. 29.01.2015 shows that the opposite party had agreed to construct the bungalow No.4 on its Plot No.8 and to sell it to the complainant for consideration of Rs.35.00 Lakhs after making construction within two years. It also shows that the complainant paid Rs.12.50 Lakhs to the opposite party towards part of consideration.

7.      The Bank Account statement also shows that Rs.12.50 Lakhs initially were paid and subsequently Rs.1.00 Lakh were paid by the complainant to opposite party. Receipt is also produced on record as issued by opposite party about payment of Rs.1.00 Lakh by the complainant to opposite party.

8.      The photographs of the plot No.8 produced on record shows that the said plot is still vacant and no construction is started thereon.  Legal notice issued to the opposite party by the complainant also supports the complaint.

9.      Therefore, we hold that the opposite party rendered deficient service to the complainant by accepting from him part consideration of Rs.13.50 Lakhs as per agreement and as per agreement by not making construction of the bungalow within given time and by not delivering its possession and by not executing the sale-deed.  Hence, the complainant is entitled to get the sale-deed executed with possession and alternatively, refund of money with interest and compensation. Accordingly, we proceed to pass the following order.

ORDER

i.        The complaint is partly allowed.

ii.       The opposite party Nos.1 & 2 shall make construction of the bungalow No.4 on its plot No.8 as per agreement, within a period of three months from today and shall deliver possession of the same within the said period, by accepting the balance consideration of Rs.21,50,000/- from the complainant at the time of sale-deed and shall also execute sale-deed in his favour within the said period.

iii.      The complainant shall bear expenses for execution of the sale-deed.

iv.      If the opposite party Nos.1 & 2 fail to make construction of the said bungalow and to deliver its possession and to execute the sale-deed within a period of three months from today, then opposite party Nos.1 & 2 shall refund Rs.13.50 Lakhs to the complainant with interest @ 12% p.a. from the date of last payment i.e. from 04.02.2015 till its realisation by the complainant and also in addition to refund the same and they shall also pay to him compensation of Rs.5.00 Lakhs towards escalation in price of the bungalow.

vi.      The opposite party Nos.1 & 2 shall also pay compensation of Rs.1.00 Lakh for physical & mental harassment to the complainant.

vii.The opposite party Nos.1 & 2 shall also pay complainant litigation cost of Rs.20,000.-

Copy of the present order be furnished to both parties free of cost.