Per Shri. H.M. Badgujar, Hon’ble Member

1)      The Complainants filed Complaint under section 35 of the Consumer Protection Act, 2019 against the opponent for deficiency in service and unfair trade Practice.

2)      The opponent is a private limited company. The case of the Complainants in short is that, the opponent had come up with projects in Mira Road and represented to the complainants one project name J.P. North Atria is going to commence soon and stated that if the complainants are interested in the same, the complainants can pre book on residential Flat in the said JP North Atria. The opponent also assured that the said flat will be handover in the year 2018. The Complainants further stated that the opponent also assured that after payment of booking amount and complainants own contribution the Opponent will execute an Agreement to Sale, so the same can be mortgaged with bank and thereafter the concern mortgagor bank can release the payment phase wise.

3)      The complainants booked residential flat on 11/11/2015 in Wing D, Unit No.-1004, at 10^th Floor in the yet to be constructed building Known as JP North Atria for an area equivalent to 909 sq.ft. (hereinafter referred as ‘Said Flat') The Complainants paid a booking amount of Rs.3,00,000/- to the opponent & the opponent issued receipt dated 25/11/2015. Thereafter, the complainants paid Rs.14,00,000/- as part of his own contribution. The opponent also accepted in their notice reply dated 17/03/2020. Thereafter, the complainants requested the opponent to proceed for registration of agreement to sale, but the opponent not proceeded as per request of the Complainants. Thereafter, in the year 2017 the opponent requested to the Complainants that construction of said project i.e. JP North Atria is not commenced hence requested to the Complainants that to switch to an alternative flat at JP North Estella and also requested to send an email at their email address as a confirmation of cancellation and opting for JP North Estella. After sending email by the Complainants, the opponent allocated Flat No.1206 on 12^th Floor in Wing 2C in the building known as JP Estella situated on land bearing Survey No. 24/1 and 24/2 of village Ghodbunder, Mira Road (East) (hereinafter referred to as ‘Revised Said Flat’)

4)      According to the Complainants the opponent did not provided draft of agreement to sale nor informed the date of registration of agreement after changing the flats. Then, by way of email on 03/11/2017, the opponent demanded Rs.25,32,015/- inspite of they have failed to execute an agreement to sale and again on 16/11/2017 demanded Rs.42,17,629/- and threatened that if the Complainants failed to make payment it will amount to cancellation of the said flat. Thereafter, in the month of February-2020, the opponent informed the complainant that they have cancel the booking of the Revised Said Flat and also denied to return the money with interest. The Complainants states that due to non-execution of agreement to sale and dishonest intention of the opponent, they had suffered loss to the tune of near about Rs.35,00,000/- as the flat which the complainants had booked was below Rs.60,00,000/- whereas in Mira Road the said flat area is now available at cost of Rs.1,00,00,000/- which they reserve to receive from the opponent. The opponent did not refund the amount till date. Therefore, the opponent commit deficiency in service and unfair trade practice. Hence, the Complainants have filed this complaint before this Commission.

5)      The complainants prays that refund of Rs.17,00,000/- along with interest at the rate of 10% per annum from 25/11/2015, Rs.5,10,000/- towards compensation, Rs.35,00,000/- towards loss of opportunity, deficiency in service for causing mental torture and harassment and Rs.50,000/- toward the cost of legal expenses.

6)      The complaint was admitted on 02/03/2021and notices were issued to the opponent for filing their written statement.

7)      The opponent was appeared and filed their written statement along with delay condonation application. The delay condonation application was allowed by this Commission and written statement was taken on record.  The opponent denied all allegations made in complaint.

8)      The Complainant filed their affidavit of evidence and written arguments. The opponent has also filed their affidavit of evidence and written arguments on record. Upon going through the complaint, written statement of the opponent, affidavit of evidence, written arguments and documents filed on record by both the parties, following points arise for consideration. Our findings thereon are as under :

9)  As to Point No.1 and 2 :- As this two points are correlated to each other, we have taken them together for reasoning. It can be seen from the documents filed by the complainants i.e. receipt issued by the opponent dated 25/11/2015 and letter send by the opponent to the complainants dated 17/03/2020 is evident that the Complainants paid total Rs.17,00,000/- consideration amount in respect of booking of the ‘Said Flat’. Therefore, the Complainants are the consumer of the opponent as per Section 2 (7) of the Consumer Protection Act, 2019.  As per the Section 35 of the Consumer Protection Act, this Commission have jurisdiction to entertain the present complaint. Hence, we recorded our findings on Point No. 1 as affirmative. The Complainants stated that in complaint they had approached to the opponent in the month of February-2020 and asking for the refund of the amount, then the opponent informed that the booking of the ‘Said Flat’ has been cancelled and denied to refund the amount. Then, after the complainants filed on record legal notice dated 05/03/2020. After perusal of legal notice dated 05/03/2020, it is evident that the complaint is filed by the Complainants within two year limitation period i.e. in the year 2021. Therefore, the Complainants proved that the complaint is filed within limitation. Hence, we have recorded our findings on Point No. 2 as affirmative.

10) As to point No.3 :- In view of the findings on Point No.1 and 2 as affirmative, now we discuss on the Point No.3.  It is evident that the Complainants filed on record application for booking, receipt dated 25/11/2015 and legal notice dated 5/03/2020 and reply of opponent dated 17/03/2020 that the Complainants booked the ‘Said Flat’ in the year 2015 and paid Rs.17,00,000/- as consideration amount. The Complainants also filed affidavit of evidence in support of their contention in complaint and documentary evidence. The Complainants continuously follow up with the opponent for execution of agreement to sale. The Complainants proved their contents of the complaint in support of documentary evidence filed on record. On the contrary, the opponent denied the allegation of Complainants. The opponent stated that they have demanded registration charges and stamp duty charges from the Complainants. For that purpose, they send email letter to the Complainants. But, the Complainants did not complied the demand of the opponent. The opponent also stated that they have also ready to refund the amount after forfeiting an amount of Rs.4,18,639/- as per the terms specifically agreed by the Complainants at the time of the booking. The opponent states that there is no any documents available and the opponent is unable to bring the documents relied in their written version on record because office file of the Complainants has been misplaced and therefore the opponent lodged report at MIDC Police Station Andheri (East) Mumbai. Copy of letter dated 21/10/2021 filed by the opponent on record.

After perusal of the written version, evidence affidavit and written notes of argument and documents filed on record by the opponent, it is evident that the opponent not filed any documents which support to contention of their written version. We can not accept report of loss of original file of Complainants documents as evidence. It is the liability of the opponent that they should prove their contents with documentary evidence.  It is evident that the opponent fails to prove theirs contents of written version as well as fails to discard evidence of the complainants.

11)    By perusing all the documents filed by both the parties, it is evident that the opponent failed to perform their part of contract and hence the opponent is guilty of deficiency in service. Hence, we record our findings on Point No. 3 as affirmative.

12) As to Point No. 4 :-  In view of findings on Point No.3 in affirmative, the Complainants are entitled to get the refund of paid consideration amount of Rs.17,00,000/- and also entitled interest at the rate of 9% per annum on amount from 25/11/2015 till the realization The Complainants claimed Rs.5,10,000/- towards compensation, Rs.35,00,000/- towards loss of opportunity for mental torture and harassment. But, the Complainants fails to prove their above demands in support of evidence and also not explained or plead in complaint how they are entitled for their demands. Therefore, we have not allowed entire demands of the Complainants. We are in view that the Complainants are entitled Rs.50,000/- as compensation for mental torture and harassment and Rs.10,000/- for cost of complaint in the interest of justice.  In the result, we record our findings on Point No.4 as partly affirmative and pass the following order.

FINAL ORDER

1. Consumer Complaint No.CC/130/2021 is partly allowed.
2. The Opponent is directed to refund an amount of Rs.17,00,000/- to the Complainants along with interest at the rate of 9% per annum from 25/11/2015 till its actual realization of the amount.
3. The Opponent is further directed to pay Rs.50,000/- to the complainants towards mental torture and harassment and Rs.10,000/- as cost of this litigation.
4. The order under Clause No.3 shall be complied with within a period of fourty five days from the date of receipt of copy of this order failing which the amount shall carry interest at the rate of 9% per annum till its realization.
5. The copies of this order be sent to the parties free of costs.