(Delivered on 31/07/2018)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.      This a complaint filed under section 12 read with section 17 of the Consumer Protection Act, 1986.

 2.      The case of the  complainant   as set out in the  complaint  in brief  is as under:

a.      The opposite party (for short O.P.) No. 1 is a Partnership Firm. Mr. Rajesh  Prabhakar Bonkinpallewar and Mr. Raju Vasantrao Mahakalkar (who are joined  to the complaint  as O.P.No. 2 & 5) are partners of the O.P.No. 1.  The O.P.Nos. 2 to 6 purchased 10 plots described  in detail  in para No. 4 of  the complaint . All O.P. Nos. 1 to 6 collectively   decided to launch  the scheme  for  development of  the said plots and construct multistoried  building  thereon  and  they offered  for sale  the flats  of the said  building  to  general  public. The O.P. Nos. 2 to 4 &6 gave power of attorney  in favour of the O.P. No. 1 for execution  of the sale deeds of the said  flats in favour of  prospective purchasers.  The O.P.No. 1 had also entered into an agreement  of development with the owners of the said  plots. The O.P. No. 2 & 5 who are partners of the O.P.No. 1  firm  also gave  consent  for  development of  plots by  the O.P.No. 1. The O.P.No. 1 started   developing  the plots by  constructing  a building  in the name and style as “Riddhi  Siddhi  Residency”.

b.      The  complainant agreed to purchase  two flats /units bearing Nos. A-102 & B-302 from the said scheme  and he entered  into an agreement  with the O.Ps to that effect.  However,  subsequently the complainant  cancelled  the booking  of the flat No. A-102. The complainant  decided to purchase  one flat/unit  bearing No. B-302 described in detail  in para No. 7 of the complaint. Price of said  unit No. B-302 was fixed  at Rs. 18,24,000/-.

c.       The complainant  initially paid Rs. 10,00,000/- to the O.Ps. which acknowledged  the same in the agreement  itself.  The complainant then paid  Rs. 5,00,000/- to the O.Ps. It was agreed   between  both the parties that  remaining amount will be paid at the time of  execution  of the sale deed. The O.Ps. had agreed to  complete  construction   within  stipulated time  with all amenities described in para No. 9 of the complaint. The O.Ps. also agreed  that if the  amenities are not provided  then complainant  will be  entitled  to avail  the said facilities  at his own costs and then claim  the same from the O.Ps.

d.      The complainant also paid Rs. 2,00,000/- to the O.P.  as demanded  for purpose  of execution of sale deed. The said amount was paid through R.T.G.S. The complainant thus paid total Rs. 15,00,000/- out of total consideration  of Rs. 18,24,000/- and in addition to it  Rs. 2,00,000/- towards stamp duty and other  charges as above.  The O.Ps. started  delaying  tactics  and   did not  complete  the construction  as per agreement  within  given time. The complainant had requested them from time to time to complete the work and execute the sale deed of flat but they failed to do so. The O.Ps. had  executed various  registered documents  and sale deeds in  respect of other flats of the same  scheme in favour  of other purchasers, but  avoided to  complete the work  as per  agreement  and  to deliver its possession to the complainant.  The O.Ps. informed  the complainant  that  for some reason  they are  unable to complete the construction  and  expressed  their  willingness  to refund  of  entire amount paid by the complainant.  The O.Ps. issued two  cheques  towards repayment  for total  amount of Rs. 20,50,000/-. However,  both the cheques  were  dishonored  by the bank on 05/04/2017 due to  insufficient funds in the account of the O.Ps. Thus, O.Ps. rendered deficient service  to the complainant   and adopted   unfair trade practice.

 3.      Therefore, this complaint  is filed by the complainant  against the O.Ps.  for following reliefs.

 a.      Direct the O.Ps. to complete  the construction  of the aforesaid property  by installing all basic amenities  as agreed  by them and to hand over  possession  of the  aforesaid flat to the complainant by executing  sale deed  or alternative  to hand over the possession  of said property in favour of the complainant  by executing   registered sale deed  subject to  grant of   permission  to  the complainant  to complete   remaining work  and construction  in the said property  at the cost of the O.Ps. or alternative  direct the O.Ps.  to refund  entire amount of Rs. 17,00,000/- along with  interest  at the rate of 18% p.a.  from the date of  actual payment.

b.      Direct the  O.Ps. to pay cost of Rs. 1,00,000/- to the complainant towards  deficiency in service provided and restrictive & unfair trade practices adopted by them.

 c.       Direct the O.Ps. to  pay cost of Rs. 50,000/-  towards the cost of proceedings to the  complainant.

 d.      Direct the  O.Ps.  to pay Rs. 2,00,000/- towards the compensation  for  metal  agony to the complainant.

 4.      The complainant  along with complaint  filed copies of following documents.

 i.        Power of Attorney dated 02/11/2011 executed  by the O.P. Nos. 2&3.

 ii.       Power of Attorney dated 19/09/2011 executed  by the O.P. No. 4

iii.      Power of Attorney dated 02/11/2011 executed  by the O.P. Nos. 5&6.

iv.      Agreement of sale dated 28/09/2012,

v.       Extract  of text messages exchanged between  complainant and  O.P. No. 2.

vi.      Cheque  bearing No. 015853 along with  cheque  return memo dated 31/03/2017 and 05/04/2017.

vii.     Legal  notice of above cheque, postal slip  and acknowledgement  dated 04/05/2017.

viii.    Cheque  bearing No. 015854 along with  cheque  return memo dated 31/03/2017 and 05/04/2017.

ix.      Legal  notice of above cheque  and postal slip and acknowledgement  dated 04/05/2017.

x.       The learned advocate of the complainant  also filed  written notes of argument.

 5.      This Commission  issued  notice  to the O.P. Nos. 1 to 6 and they were handed over the  complainant for sending the same  to the  said O.P. Nos. 1 to 6 by Registered Post A.D.. He  sent  the same by Registered Post A.D. This Commission received two acknowledgements about  service of notice to the O.P.Nos. 3&4 duly signed by  them. They failed to appear and therefore, this Commission proceeded exparte against them as per order dated  27/03/2018.

 6.      Notices issued to the O.P.Nos. 1,2 and 5  were  returned   unserved  with postal endorsement  as “Addressee does not reside  on the given address, Left.”  Notice issued  to the O.P.No. 6 was returned  unserved with  postal endorsement  as “Incomplete address.” The said notices were issued on the same address which were given in the complaint and as well as in agreement to sell.  Therefore, as per request of the advocate of the complainant permission was granted to the complainant to serve notice to them by publishing in local newspaper against the said O.Ps. and produce one of the issue of local newspaper  on record.  Accordingly, notice was  published  in local  news paper. Hence, we held that  the notice has been duly  served to the O.P.Nos. 1,2,5&6. They failed to appear before this Commission. Therefore, this Commission vide order dated 27/03/2018 proceeded exparte against them.  Thus, complaint is proceeded exparte against all  the O.P.Nos. 1 to 6.

 7.      We have heard advocate Mr. G.S. Agrawal appearing  for the complainant  and perused the entire record and proceedings of the complaint. The learned advocate of the complainant submitted that  the allegations made in the complaint  are duly proved   by  complainant  by filing  aforesaid  documents  and  as the O.P. Nos. 1 to 6 have not challenged  the  said  complaint  and  documents by filing reply, the same may be accepted.  He therefore, requested that  all the reliefs sought  for  in the  complaint  may be granted.

 8.      We find that  aforesaid documents prove that the O.P.Nos. 1 to 6 had agreed  to sell  flat /unit No. B-302 by developing  the land and  price of said flat /unit was fixed   at Rs. 18,24,000/- & out of that amount the complainant paid Rs. 15,00,000/- and complainant also paid  in addition to it  Rs. 2,00,000/- towards stamp duty and other charges for sale deed to the O.Ps.  However,  the O.Ps. did not perform their part of contract  and failed to make  construction of the flat and  did  not hand over its possession to the complainant and did not execute the sale deed by accepting  balance consideration from him. Therefore, the  O.P.Nos. 1 to 6 have rendered  deficient  service  to the complainant and adopted  unfair trade practice.

 9.      Moreover, we also find that  the complaint  is filed  within two years after  cheques for  Rs. 20,50,000/- handed over  by the O.Ps.  to the complainant  towards refund  of entire  amount  were dishonored  by the bank on 05/04/2017 due to insufficient  funds in the  account of the O.Ps.  Thus as the   complaint was filed on 07/09/2017 it is within limitation.

 10.    We therefore, hold that  the complainant is entitled  to the following reliefs. Hence, the order.

ORDER

i.        The complaint  is partly allowed.

ii.       The O.P.Nos. 1 to 6 shall  within  two  months  from today  complete the construction  of the flat as per  agreement  dated 28/09/2012, hand over  its possession  to the complainant and execute registered  sale deed of the same  in his favour as per said agreement,  after accepting  balance consideration  from  him on the date of  said  sale deed.

iii.      The  O.P. Nos. 1 to 6. shall  bear expenses of the sale deed  as the complainant  already  paid the same to them.

iv.      The O.P. Nos. 1 to 6 shall also pay compensation  of Rs. 1,00,000/- to the complainant  for physical and mental  harassment.

 v.        The O.P.Nos. 1 to 6 shall also pay litigation cost of Rs. 20,000/- to the complainant.  

 vi.       If the O.P.Nos. 1 to 6 are unable to  make construction  of the flat as per  said agreement  and to give its possession along with  sale deed as per  said agreement  within  2 months from today then  alternatively  they shall refund   Rs. 17,00,000/- to the complainant  with interest at the rate of 18% p.a.  from the date of complaint  i.e. from 07/09/2017 till its realization  by him and in addition   to the refund of that amount  they shall  further pay compensation of Rs. 1,00,000/- to the complainant towards the  deficiency in service and unfair trade practice  as claimed by the complainant.

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