Consumer Complaint No.164 of 2007

11th November, 2008

Petitioner Counsel: Mr. SHYAM WALVE

JUDGMENT

-Smt. S. P. LALE, Hon'ble Member :- This complaint is filed by the complainant against O.P. No.1/Namrata Realtors Pvt. Ltd., and O.P. No.2/Mr. Pratap P. Lednekar, Director of the Company alleging deficiency in service on their part. According to the complainant, he has purchased a flat bearing No.301, 3rd floor, Sumeet Chhaya Building, plot No.A-213 at Sector-20, Nerul, Navi Mumbai. The Agreement for Sale was executed on 10-03-2004 and it was duly registered with the Sub-Registrar, Vashi, Thane. The total cost of the flat was agreed to Rs.11,50,000/-. Though as per the agreement, the complainant was to make payment as per schedule, O.P. No.2 requested the complainant for full payment and at the time of execution of agreement, the complainant paid Rs.2,50,000/- and further paid Rs.9 Lakhs directly though bankers cheque by taking loan from the State Bank of Hyderabad, Vashi Branch. Thereafter, O.P. agreed to hand over possession of the flat about July, 2005. The O.P. completed the construction on 08-09-2006. The O.P. never intimated to the complainant about possession of the flat nor issued any allotment letter to the complainant. When the complainant started up following with the O.P., it was noticed by the complainant that O.P. No.2 started avoiding the complainant. The O.P. failed to hand over the possession of the said flat to the complainant as agreed. Therefore, the complainant issued a legal notice dated 08-12-2006, but O.P. even failed and neglected to reply the said notice. The complainant further visited the site of the O.P. on 10-09-2007 and to his utter surprise, it was noticed by the complainant that the O.P. has given possession of the said flat to one Shri. More from Chambur. Therefore, O.P. No.2 indulged into double sale of the suit flat and thereby cheated the complainant despite having received full payment from the complainant. The complainant further submitted that the complainant is repaying bank loan along with interest @ 11% p.a. towards monthly installments for 13 years. The total housing loan amount comes to about Rs.17,78,400/- apart from Rs.2,50,000/-. Therefore, the complainant filed consumer complaint before this Commission for deficiency in service.

2. Notice is served on O.P. No.2, but, O.P. No.2 remained absent. O.P. No.1 refused to accept the notice. Therefore, the complaint proceeded ex-parte against the O.P. Nos.1 & 2 on 21-08-2008. The complainant filed affidavit of claim and affidavit of service along with complaint.

3. We heard Mr. Shyam Walve, Advocate for the complainant. None is present for the O.Ps.

4. We perused the complaint, affidavit and relevant documents filed by the complainant.

5. The complainant had booked the flat with O.P. No.1 and paid total consideration of Rs.11,50,000/- to O.P. No.1. The complainant paid Rs.2,50,000/- as earnest money to O.Ps. on 10-03-2004 and produced the receipt thereof. The complainant also paid Rs.9 Lakhs by availing loan from the State Bank of Hyderabad. The complainant had further produced the proof of payment regarding Rs.9 Lakhs. The Agreement for Sale was executed on 10-03-2004. Despite having received the full consideration amount, the O.Ps. failed to hand over the possession of the flat to the complainant. When the complainant visited the site of the O.Ps., he found that the O.Ps. have given possession of the complainant's flat to one Shri. More. This amounts to unfair trade practice and deficiency in service on the part of O.Ps. under provisions of Section 2(1)(r) & (g) of the Consumer Protection Act, 1986. The complainant had suffered serious mental tension for which O.Ps. are liable to pay compensation. The complainant may not get the flat today at the same rate in the same vicinity for which he had booked the flat in the year 2004. The complainant is paying E.M.I. of Rs.11,400/- and still he has to pay for 13 years. The loan amount is worked out to Rs.17,78,400/-. The complainant has to repay the said loan amount to the Bank without enjoying the fruit of the loan. Despite having made full payment of the flat, the complainant had suffered mental tension for not getting flat for residence. Therefore, the O.Ps. are liable to pay compensation of Rs.1 Lakh to the complainant. The complainant has claimed refund of consideration along with interest @ 12% p.a. and compensation from the O.Ps. The O.Ps. failed to appear before this Commission for making any oral or written submissions despite proper servive. Therefore, there is no reason to disbelieve the contentions of the complainant. We are therefore inclined to allow refund of consideration of Rs.11,50,000/- along with interest @ 10% p.a. from the respective dated of payment. The O.Ps. are further directed to pay Rs.1 Lakh as compensation for reasons mentioned above and Rs.5,000/- towards cost of proceeding. In the result, we pass the following order:-

-: ORDER :-

1. Complaint is partly allowed.

2. O.P. Nos.1 & 2 are hereby jointly and severally directed to pay amount of Rs.11,50,000/- to the complainant together with interest @ 10% p.a. from the date of respective payments till the realization.

3. O.P. Nos.1 & 2 are further jointly and severally directed to pay amount of Rs.1 Lakh by way of compensation for mental agony and harassment and Rs.5,000/- by way of cost to the complainant.

4. O.P. Nos.1 & 2 are hereby jointly and severally directed to comply the order within 30 days from the date of receipt of the order.

5. Copies of the order be furnished to the parties.

Complaint partly allowed.