PER SHRI. A.Z.KHWAJA, HON’BLE  JUDICIAL MEMBER

            Complainant Shrikant Thakare has preferred the present complaint U/s 12 of the Consumer Protection Act,1986. Short facts leading to the filing of complaint may be stated as under..

             Complainant Shrikant Thakare claims to be resident of Sonal Colony, Amravati. Opposite parties Nos.2 to 4 are the partners of Opposite party No.1 M/s Balkrushna Infrastructure Builders and Developers. Opposite party No.1 had floated a flat scheme in Rathinagar Area of Amravati named Pushpkunj Apartment consisting of several flats and situated at Plot Nos.7&8 of field Survey No.6/2 at mouza Shegaon Paragana Nandgaon peth. Complainant Shrikant was desirous of owning a residential flat in Rathinagar area and was impressed by the brochure supplied by the OP No.1 and hence approached to OP No.1. OP No.1 then showed  various flats in the flat scheme and, thereafter, the complainant agreed to purchase flat No.201 on Second floor of Pushpkunj Apartments for a consideration of Rs.25 lacs. Complainant has contended that before executing the agreement, the OP had given an assurance of completing the flat in all respects and also to obtain Completion certificate as well as Occupancy certificates. Accordingly, the complainant executed an agreement of sale on 11/2/2014 and paid an amount of Rs.5 lac. Complainant also approached Bank of Maharashtra for seeking loan for paying remaining amount. Complainant subsequently paid amount of Rs.7.5 lac by way of 2 cheques. Complainant has alleged that he had paid an amount of Rs.20 lacs by 16/9/2014 out of total consideration of Rs.25 lacs. Complainant, thereafter, also paid amount of Rs.50,000/- on demand from OP No.1. Complainant was also pursuing with the OP No.1 and requested them to install Solar System as well as Lift and also to obtain Occupaancy Certificate, but the OP No.1 as well as OP Nos.2 to 4 who were the partners, failed to fulfill the assurances and failed to complete the construction work and execute the sale-deed. Complainant has contended that there was also huge delay in completion of work. Complainant was, therefore, convinced that the OP had adopted Unfair Trade Practice and were also indulging in deficiency in service as they failed to execute registered sale deed after getting completion certificate and occupation certificate. Complainant, were therefore left with no other option, but to file complaint regarding deficiency in service against OP Nos.1 to 4 under Consumer Protection Act,1986.

               After filing of the complaint, due notices were issued to OP Nos.1 to 4 and the same were also duly served. But despite service of notices, the OP Nos.1 to 4 remained absent and also did not file written version within stipulated period of 45 days and, therefore, complaint proceeded without written version.

              Complainant, thereafter, led his evidence by way of affidavit and also placed reliance upon several documents namely copy of the brochure, deed of declaration, agreement to sale and receipts regarding payment of amounts.

               We have also heard the learned advocate for the Complainant. Learned advocate for the Complainant has drawn our attention to the copy of agreement to sale entered into by the parties and the same clearly shows that the Complainant had booked the flat No.201 on Second floor of the apartment constructed by the Ops. It further shows that the flat was booked by the Complainant for a total consideration of Rs.25 lacs and the schedule of payment is also mentioned in the agreement to sale.

                  Learned advocate for the complainant has drawn our attention to the copies of various receipts regarding payment of amount of Rs.2 lacs on 12/6/2014, Rs.7.5 lac on 12/9/2014 and Rs.50,000/- on 21/5/2017. It is submitted by learned advocate for the complainant that the complainant had paid a sum of Rs.21 lacs out of total consideration of Rs.25 lacs but despite the same, the OPs had not completed the construction of building nor provided necessary amenities. It is further submitted by the learned advocate for the complainant that the Ops also failed to obtain occupancy certificate and also failed to hand over possession of the flat within the stipulated period as agreed.

                   Bare perusal of the documents filed on record clearly lead us to the conclusion that the OP namely M/s Balkrushna Infrastructure Builder and Developers and its partners have failed to hand over possession of the flat to the complainant after completing the flat in all respects and the complainant was compelled to run from pillar to post. It is further clear that the OP Nos.1 to 4 had committed deficiency in service as well as Unfair Trade Practice. Further, we find that the entire documentary as well as affidavit evidence led by the complainant has gone unchallenged. OP Nos.1 to 4 have not led any evidence in rebuttal and also failed to file written version on record.

                     During the course of arguments, learned advocate for the complainant has also placed reliance upon the judgments of Hon’ble Apex Court in Pioneer Urban land and Infrastructure Ltd. Vs.Govind Raghavan (Civil appeal No.12238 of 2018 judgement dated 2/4/2019) and that of Hon’ble National Commission in the case of Udayan Garg Vs. Godrej Premium builers.. (Consumer Case NO. 3598 OF 2017, judgement dated 16/4/2019) We have gone through the same. In both the matters, the appellant Builder had failed to deliver possession of the apartment within the stipulated period and the flat purchaser was made to wait for inordinate period and it was observed by the Hon’ble Supreme Court as well as by the National Commission in respective cases that there was deficiency in service. Here, in the present case also the facts are similar and the complainant was made to wait for getting possession of the flat after having paid huge amount of Rs.21 lacs. Advocate for the complainant also relied on the judgment of Hon’ble National Commission in the case of M/s Singla Builders, but we find that the same does not apply to the facts and circumstances of the present case.

                We are, thus, of the view that the OP Nos.1 to 4 are guilty of deficiency in service an Unfair Trade Practice for not executing Sale Deed and by not handing over the possession alongwith occupancy certificate. We are further also of the view that the complainant, being a consumer, was also entitled for compensation on account of mental and physical harrassment as well as cost of litigation and so, we pass the following order..

ORDER

1.  The complaint is partly allowed.

2.  It is hereby declared that OP Nos.1 to 4 have committed deficiency in service as well as Unfair Trade Practice as defined under Consumer Protection Act,1986.

3.  OP Nos.1 to 4 are hereby directed to execute sale deed of Flat No.201 on the Second floor of the a Pushpkunj apartment in favour of the Complainant within six months of receipt of order.

4.  OP Nos.1 to 4 are further directed to hand over possession of the flat No.201 on the Second floor of Pushpkunj apartment to the Complainant, alongwith all amenities within a period of 6 months after obtaining occupancy certificate.

5.  OP Nos.1 to 4 are further directed to to pay compensation of Rs.3 lacs for the mental and physical harrassment caused to the complainant and Rs.25,000/- towards cost of litigation. 

6.  Copy of the order be supplied to the parties free of cost.