(Delivered on 05/12/2018)
PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.
1. This is a complaint filed under 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 complainant is legal practitioner and practicing at Nagpur. The opposite party (for short O.P.) No. 1 is a Partnership Firm and O.P.No. 2 is its authorised partner. The O.P.No. 1 entered in to contract with the O.P.No. 3 for development and construction on lease Hold Plot No. 221. The O.P. No. 3 is the owner of the land described in detail in para No. 2 of the complaint. The Memorandum of Understanding (MOU) was executed by the O.P.Nos. 1 and 3 and thereby they decided to make the plan of multistoried building proposed to be constructed on the aforesaid plot No. 221 described in detail in the complaint, in the name and style as “Hiteshri Krushna Mangal Arcade”. The complainant wanted to purchase one of the apartment of the same from the O. P. Nos. 1 to 3 for his residence. Thereafter on due negotiations in between the complainant and O.Ps. the price of Rs. 52,00,000/- of flat No. 101 under the said scheme was fixed and the complainant agreed to purchase the said flat for the said price from the O.Ps.
b. As per said negotiations in between both the parties, the complainant was required to pay first instalments of 15% amount of total consideration which comes to Rs. 7,80,000/- , second instalments of Rs. 15% amount of total consideration which comes to Rs. 7,80,000/- and remaining 3rd to 8th instalments of 10% amount i.e. Rs. 5,20,000/- each and 9th installment of 7% of the total consideration i.e. Rs 3,64,000/- and last insallment of 3% of the total consideration amount of Rs. 1,56,000/- was to be paid at the time of taking possession. The details of payment schedule as above is given in the para No. 5 of the complaint.
c. The complainant accordingly, paid total amount of Rs. 26,00,000/- to the O.P.Nos. 1 to 3 till the completion of 3rd floor slab of the said building, out of total consideration of Rs. 52,00,000/-. An agreement to sell was executed on 20/10/2014 after the payment of aforesaid four installments was made by the complainant. It was duly notarized in the presence of two witnesses.
d. The complainant was ready to pay 5th installment as above, when the construction of 4th floor slab of the building was to be made. However, it was found that the O.Ps. completely stopped the further construction after constructing the 3rd floor slab. Some dispute arose in between the O.Ps. and hence, further construction was not made by them. Therefore, 5th installment was not paid to them by the complainant .
e. However, as the construction was not started after 4th floor, the complainant issued notice on 11/01/2016 to the O.Ps. and thereby called upon the O.Ps. to complete the construction. The O.P.No. 2 refused to accept the said notice. The O.P.No. 3 received the notice. But did not give reply to that notice. The O.Ps. have not started the construction even after receiving that notice.
f. Hence, the complainant filed the present complaint seeking following reliefs and alleging deficiency in service on the part of the O.Ps.
i. Direct the O.Ps. to complete the construction within six months and give the possession of the flat No. 101 to the complainant and to execute the registered sale deed of the same in favour of the complainant.
ii. If the O.Ps. have failed to construct the entire building within stipulated period and not able to construct in future, as alternate relief, the O.P.No. 3 be directed to put the complainant in possession of under construction flat No. 101 in “ Hiteshri Krushna Mangal Arcade” scheme with liberty to complainant to complete the construction of the said flat, by investing rest of the consideration amount which is to be paid to the O.P. Moreover, after granting
the said liberty, the O.P. No. 3 be directed to complete entire scheme and provide all the amenities to the complainant which was agreed to be provided by them at the time of launching of the scheme.
iii. Direct the O.P.Nos. 1 to 3 to pay compensation of Rs. 10,00,000/- to the complainant for mental and physical harassment.
iv. Direct the O.Ps. to pay cost of litigation of Rs. 25,000/- to the complainant.
3. This Commission initially issued notices to the O.P.Nos. 1 to 3 and they were given humdust to the complainant for service by Registered Post A.D. He accordingly sent those notices to the O.P.Nos. 1 to 3 by Registered Post A.D. The notice issued to the O.P. Nos. 1& 2 at that time were returned unserved with postal endorsement as “Not Claimed”. No acknowledgement was received about service of said notice to the O.P. No. 3 till 09/06/2016. The complainant was directed to produce track report of India Post Web Site about service of notice to the O.P.No. 3. The complainant then produced track report about service of notice to the O.P.No. 3. It showed that it was delivered to the O.P.No. 3. Moreover, this Commission later on also received acknowledgement about service of notice to the O.P.No. 3 as signed by him. But he remained absent. Therefore, this Commission proceeded exparte against him.
4. The notices were issued second time also to the O.P.Nos. 1&2 but they were again returned. The O.P.No. 2 refused to accept the said notice and accordingly the endorsement was made by postal authority on the envelop of that notice as “ Refused”. The notice issued to the O.P. No. 1 was returned unserved with postal endorsement as “Door Locked, Intimation Given”.
5. This Commission therefore granted permission to the complainant to
serve notice to the O.P. Nos. 1&2 by publishing the same in the local newspaper. Accordingly, the notices were issued to the O.P.Nos. 1&2 and complainant published the same in the local newspaper namely “Lokshahi Varta” dated 03/11/2017. The complainant produced one of the issue of the said newspaper in which the said notice was published against the O.P.Nos. 1&2. We held that notices have been duly served to the O.P.Nos. 1&2. But they remained absent. We proceeded exparte against them. Thus, the O.P.Nos. 1&2 have thus not resisted the complaint by filing their reply.
6. The complainant along with complaint filed copies of payment receipts , agreement to sell, legal notice, postal receipts about issuance of notices. The complainant also filed his own affidavit by way of evidence. He also filed written notes of arguments. We have heard the complainant in person today and perused the entire record and proceedings of the complaint.
7. The complainant during the course of argument has drawn our attention to the payment receipts issued by the O. P. about receiving Rs. 26,00,000/- The complainant has also brought to our notice the agreement to sell dated 20/10/2014 executed by the O.P. in his favour in which there is admission of the O.P. that the complainant paid in installments of Rs. 26,00,000/-. The complainant also reiterated his aforesaid case as set out in the complaint and submitted that as the complaint and the aforesaid documents and affidavit filed on record went unchallenged , the reliefs sought for in the complaint may be granted.
8. We find that the notices were served to the O.P. Nos. 1 to 3 as above, but they failed to remain present & hence, we proceeded exparte against them. Thus, complaint, documents and affidavit described above went unchallenged. There is no reason to disbelieve the same.
9. The aforesaid agreement to sell prove that the O.P. Nos. 1 to 3 had agreed to construct a multi-storeyed building under the name and style as “ Hiteshri Krushna Mangal Arcade” and that they agreed to sell one of the flat No. 101 of that building to the complainant for total consideration of Rs. 52,00,000/- and building was agreed tto be completed before May,2015. It is also proved from the aforesaid documents that though the complainant has paid part of consideration of Rs. 26,00,000/- as per stage wise construction in view of the agreement of the O.Ps., they stopped the construction of the building from 4th floor and assigned no reason to the complainant for not making further construction. Therefore, we hold that the O.P. Nos. 1 to 3 have rendered deficient service to the complainant.
10. We thus find that as the complainant is ready to pay balance consideration as per stages the construction, direction needs to be granted to the O.P. to make full construction of the building as per agreement within three months from the date of this order and to provide possession of the aforesaid flat to the complainant and to execute the sale deed of the same after accepting the balance consideration from complainant at the time of sale deed. The complainant is also entitled to compensation of Rs. 5,00,000/- for physical and mental harassment and litigation cost of Rs. 10,000/-. Hence, the order.
ORDER
i. The complaint is partly allowed.
ii. The O.P.Nos. 1 to 3 are directed to the complete the entire construction of the aforesaid multi storied building as per agreement within 6 months from today and to hand over the possession of the flat No. 101 as per agreement to sell to the complainant within 6 months from today and shall execute the registered sale deed of the said flat in favour of the complainant within 6 months from toady.
The complainant shall pay balance consideration to O.P. at the time of execution of sale deed.
iii. The complainant shall bear the expenses for execution & registration of sale deed.
iv.. The O.P.Nos. 1 to 3 jointly and severally shall also pay compensation of Rs. 5,00,000/- for physical and mental harassment and litigation cost of Rs. 10,000/- to the complainant.
v. Copy of order be furnished to both parties, free of cost.
