1)      This complaint is filed under Section 17 of the Consumer Protection Act, 1986. The case of the complainants in brief is as under.

2)      The opposite party (for short O.P.) is indulged in the work of building construction and to sell the same to prospective purchasers in the name as “M/s.Taj Builders and Developers”. The complainant Nos.1 and 2 entered into an agreement with him for purchasing one flat bearing No.302 for a consideration of Rs.26,00,000/-. The agreement was executed on 11/05/2015. The complainants paid full consideration of Rs.26,00,000/- to O.P.  The O.P. also executed sale deed of that flat infavour of the complainants. However possession of the flat was not given since the construction of the flat was incomplete as stated in detail in the complaint. The complainants  paid the consideration by obtaining loan from State Bank of India and therefore they are repaying that loan by way of E.M.I. of Rs.19,100/- to the said Bank. The O.P. failed to complete the finishing work till 23/02/2015. The tiles of the flat were broken. The O.P. failed to erect the POP work in the flat. The O.P. also failed to provide the tiles on the wall, modular kitchen and aluminum window and to provide electric meter. The O.P. also failed to erect the Jaguar fitting in latrine and bathroom. The O.P. had assured that he will hand over possession of  that flat on or before 30/01/2016 or  alternatively he return the money with expenses towards registration of sale deed, bank interest etc. and also he will pay rent @ Rs.15,000/- per month from 01/02/2016. He has also not completed the work of lift in the building. The flat is not ready with all amenities as agreed by the O.P. The complainant therefore issued notice to the O.P. The O.P. received the same but failed to comply with the notice and did not give its reply. Therefore alleging deficiency in service on the part of O.P., this complaint is filed making following request.

i)        Direct the O.P. to handover the possession of the flat No.302 to the complainants. (ii) Direct the O.P. to pay Rs.15,000/- to the complainants towards rent from February 2016 till possession of the flat No.302 is given, (iii)  Direct the O.P. to pay him Rs.15,000/- towards compensation as he failed to erect the lift in the building,    (iv)  Direct the O.P. to pay Rs.19,100/- to the complainants towards EMI of State Bank of India, (v) Direct the O.P. to pay Rs.50,000/- towards compensation to the complainants, (vi) Direct the O.P. to pay litigation cost of Rs.25,000/- to the complainants.

3.      The complaint was admitted by this Commission on 29/06/2016. Thereafter notice was issued to the O.P. by registered post A.D. It was returned unserved with postal endorsement as “Not Claimed”. Thereafter this Commission granted permission to the complainant to serve the notice to the O.P. by publishing the same in the local news paper. Accordingly notice issued by this Commission was duly published in the local news paper namely “Dainik Bhaskar”. One of the issue of that news paper is also filed. Its shows that notice has been duly published in the local news paper. We then found that respondent failed to appear despite service of notice by publication in the local news paper. Hence this Commission proeeded ex-parte against the O.P. as per order dated 08/02/2017.

4.      The complainant in support of his complaint filed copies namely agreement to sale dated 11/05/2015, sale deed dated 09/07/2015, notice dated 11/02/2016, receipt and service report dated 11/02/2016.

5.   The complainant also filed affidavits of Aatif Ahamad, Shafi Ahamad, Jamil Khan and Abdul Mannan Khan in support of the complaint. The advocate of complainant also filed written notes of argument. We have perused the entire record and proceedings of the complaint and heard advocate Mr.U.M.Joshi appearing for the complainant.   

5.      The learned advocate of the complainant during the course of argument relied on the aforesaid documents and affidavits and submitted that as the said complaint and documents went unchallenged, the relief sought for in the complaint may be granted.

6.      We find that the notice initially issued to the O.P. by this Commission has returned unserved with the endorsement as “Not Claimed”. The said notice was sent on the same address to O.P. which is given in the agreement to sale and the sale deed. Thus it is clear that despite of giving intimation of that notice, the O.P. did not claim the same. Thereafter, as per request of the advocate of the complainant the said notice was duly published in the local news paper against the O.P. Thus the O.P. has not challenged the complaint and the documents filed on record. There is no reason to disbelieved the same.

7.      We thus find that though sale deed has been executed to the complainant, the possession of the flat is not given by the O.P. The O.P. has also given letter in his own writing without putting signature, which is also filed on record. It also supports the aforesaid case of the complainant. Moreover the O.P. has not given reply to the notice of the complainants, though he received it. This shows that the O.P. has no defence to raise in the complaint. 

8.      Thus we hold that the O.P. rendered deficient service to the complainants by not giving possession of the flat after receiving full consideration. Therefore the complainants are entitled to the possession of the flat. The complainants are also entitled to the rent @ Rs.10,000/- per month from the date of the complaint till the delivery of possession of the said flat. Moreover the complainants are also entitled to compensation of Rs.15,000/- as the O.P. failed to erect the lift. The complainants are also entitled to compensation of Rs.25,000/- towards physical and mental harassment and litigation cost of Rs.5000/-.  Thus the following order is passed.

//  ORDER //

1. The complaint is partly allowed.
2. It is directed that the O.P. shall hand over the possession of the flat No.302 to the complainants described in the complaint.
3. The O.P is also directed to pay rent of that flat @ Rs.10,000/- per month from the date of the complaint i.e. from 05/05/2016  till delivery of the possession of that fat to the complainants.
4. The O.P. is also directed to pay compensation of Rs.15,000/- to the complainants as the lift is not provided to the building.
5. The O.P. is also directed to pay compensation of Rs.25,000/- to the complainants for physical and mental harassment.
6. The O.P. is also directed to pay litigation cost of Rs.5000/- to the complainants.
7. Copy of the order be furnished to both parties free of cost.