J U D G M E N T

Per Mr. D.R. Shirasao, Presiding Judicial Member

1.       Complainants have filed this complaint for getting possession of flat from opponent alongwith other reliefs.  Brief facts of the case are as under :

2.       Opponent agreed to allot flat No. 403 admeasuring 800 sq.ft. carpet area situated on 4^th Floor of the building No. A-4, Phase – I of the building known as Mahavir Galaxy to the complainant for total consideration of Rs.16,07,850/-.  Complainant had paid amount of Rs. 16,00,000/- before execution of Agreement and the balance amount of Rs. 7,850/- was to be paid at the time of taking possession of the flat.  Accordingly, agreement was executed in respect of that flat, in between complainant and opponent on 21/10/2013.  Complainant had paid stamp duty of Rs.64,400/- and registration charges of Rs.17,340/- for that agreement.  Out of the amount of Rs.16,00,000/-, complainants have paid amount of Rs.25,000/- by cheque on 5/5/2013 and paid amount of Rs. 15,75,000/- by cheque on 2/6/2013.  Complainants had also paid amount of Rs.65,798/- towards service tax and VAT by cheque.  Complainants had also paid amount of Rs.85,448/- for registration and legal charges.  As per agreement, opponent had agreed to hand over possession of the flat to complainants on 31/12/2015.  It is the contention of complainant that, however, opponent could not hand over possession of the flat to complainants as per agreement.  It is the contention of the complainants that as per clause 5 of the Agreement, opponent had agreed to pay interest on the amount deposited by complainants of Rs.16,00,000/- @ 24 p.c.p.a.  Accordingly, opponent had given 6 post dated cheques, each of Rs.25,000/-, towards payment of interest to complainant.  It is the contention of complainant that however, out of those cheques, only two cheques were honoured and the third cheque was dishonoured by the bank for insufficient funds and hence, complainant had not deposited rest of the cheques for encashment.  It is the contention of the complainants that, as opponent had given deficient service to many of the flat purchases, they had given report about the same against opponent and the director of the opponent by name Rajesh Patwa was arrested by police and remanded in custody.  As opponent failed to hand over possession of the flat to complainants, complainants have filed this consumer complaint for getting possession of the flat No.403 from opponents on payment of balance amount of consideration of Rs.7,850/- to them.  Complainants have also claimed interest on the deposited amount of Rs.16,00,000/- from 1^st January 2016 till filing of the consumer complaint @ 24 p.c.p.a. amounting to Rs.8,32,000/- and has also claimed future interest from the date of filing of consumer complaint till getting possession of flat from opponent.  Complainants have also claimed cost and compensation from opponents as opponent has given deficient service to the complainants.  In alternative, complainants have claimed the market price of the flat of Rs.19,28,634/- from opponent alongwith interest on that amount @ 12 p.c.p.a. from the date of filing of complaint till realisation of amount from opponent.

3.       The notice of consumer complaint was duly served on the opponents by complainants.  In that respect, complainants have filed service affidavit on record alongwith track report showing that notice was duly served on opponent.  However, opponents did not appear before the Commission and had not contested the consumer complaint.  Hence, this Commission by passing order on 19/11/2018 directed to proceed the complaint ex-parte against opponent. Thereafter, complainants filed their affidavit of evidence on record alongwith documents alongwith notes of arguments.  Arguments of learned Advocate appearing for complainants heard.

4.       As no one appeared for opponent and opponent has not contested consumer complaint, I had gone through the documents filed on record by complainant and decided consumer complaint on merit.

5.       In this case, it is the admitted fact that complainants have booked flat No.403 admeasuring 800 sq.ft. carpet area situated on 4^th Floor of building No. A-4, Phase – I by name Mahavir Galaxy with opponent for total consideration of Rs.16,07,850/-.  In that respect, Agreement was executed in between complainant and opponent on 21/10/2013.  Before execution of agreement, complainants had paid amount of Rs.25000/- by cheque on 5/5/2013 and amount of Rs.15,75,000/- on 02/06/2013 to opponent.  Complainants had also paid amount of Rs.65,798/- towards service tax and VAT and amount of Rs.85,438/- towards registration and legal charges to opponent. As per this agreement, opponent had agreed to hand over possession of flat to complainants on 31/12/2015.  However, opponent failed to construct the building and hand over possession of flat to complainants, as agreed.  Hence, complainants have filed this consumer complaint for getting possession of flat No.403 from the opponent.  Complainants have produced copy of agreement on record.  Complainants have also produced receipts on record to show that they have paid amount of Rs.16,00,000/- to opponent towards sale consideration and have also paid other amounts for execution of agreement.  In this case, it is the admitted fact that, as per clause 5 of the agreement, opponent had agreed to pay interest to the complainant on the amount deposited by complainants @ 24 p.c.p.a., if possession is not given to the complainants of the flat as agreed.  As per agreement, possession of the flat was to be given on 31/12/2015.  As opponent has not handed over possession of the flat to complainants, complainants are entitled to get the same from opponent.  Complainants are also entitled to get interest @ 24 p.c.p.a. on the amount of Rs.16,00,000/- which they have deposited with opponent from 1^st January 2016 till filing of the complaint.  Moreover, complainants are also entitled to get future interest on this amount from the date of filing consumer complaint till realisation of amount by complainants.  As opponent has given deficient service to the complainants, complainants are entitled to get compensation in that respect from opponent alongwith cost of litigation. In this case, complainants have alternatively claimed the market value of the flat of Rs.19,28,634/- alongwith interest on that amount @ 12 p.c.p.a. from the date of filing of complaint.  In that respect, complainants have relied on the copy of the ready reckner filed on record.  However, I am of the opinion that instead of this, it will be proper to direct the opponents to refund the amount of complainants alongwith interest on that amount.  In view of the same, I proceed to pass the following order :

ORDER

1)      Consumer complaint is hereby partly allowed subject to cost of Rs.25,000/- to be paid by opponents to complainants.

2)      Opponent is hereby directed to hand over possession of flat No.403, situated on 4^th Floor of building A-4, Phase-I known as Mahavir Galaxy at village Payagaon, Tal. Bhivandi admeasuring 800 sq.ft. to complainants by accepting balance amount of consideration of Rs.7,850/- from complainants.

3)      Opponent is further directed to pay interest on the amount of Rs.16,00,000/- deposited by complainant with them @ 24 p.c.p.a. from 1^st January 2016 till filing of consumer complaint, after deducting amount of Rs.50,000/- which opponent has already paid to complainants.

4)      Opponent is further directed to pay interest on this amount @ 24 p.c.p.a. from the date of filing of this consumer complaint till handing over possession of flat to the complainants.

5)      Opponent is further directed to pay compensation of Rs.1,00,000/- to complainants for deficient service given by opponent to them.

6)      In alternative, at the option of complainants, opponent can refund amount of Rs.16,00,000/- to complainants alongwith amount of Rs.8,32,000/- towards interest on this amount @ 24 p.c.p.a. from the date of 1^st Jan. 2016 till filing of consumer complaint to complainants after deducting amount of Rs.50,000/- which is already paid by opponent to complainants. Opponent will have to pay interest on this amount @ 18 p.c.p.a. from the date of filing of this consumer complaint till realization of amount by complainants by opponent.

7)      The amount of cost and compensation is to be paid by opponent to complainants within a period of one month from passing of this order.  Otherwise, opponent will have to pay interest @ 12 p.c.p.a. from the date of filing of this complaint till realization of amount by complainant.