CHRISTINA SOLOMAN DAVID vs VIKRAM DAVE

MR. N.B. Karmaran, A.R. for the complainant. None for the O.P. although duly served and proof of service filed. (For brevity''s sake hereinafter parties shall be referred to as ''Gala Purchaser'' and ''Builder''). Complainant is the Gala Purchaser and O.P. is the Builder.

THE complaint has been filed by the Gala Purchaser seeking possession of the Gala in question of the area of 715 sq. ft. in a Project of the Builder at Mira Road, Ground Floor in building known as Shivam, ''A'' Wing situated at Sheetal Nagar, Bhaktiveer Co-op. Society at Mira-Bhayander, District Thane. It is the case of the Gala Purchaser that by Agreement dated 28th February, 1998 which is marked as ''Exhibit-P Collectively'' to the complaint, he agreed to purchase a Gala for total consideration of Rs. 6 lakhs and Builder was to hand over the possession on 30th June, 1998. THE Gala Purchaser has paid agreed consideration of Rs. 6 lakhs as under : Rs. 3 lakhs on 28th February, 1998 Rs. 3 lakhs on 20th May, 1998 However, possession was not made over. It is the case of the Gala Purchaser that he approached the Builder on several occasions requesting for possession of the Gala but there was no favourable response. The complainant-Gala Purchaser alleges that Builder used to be evasive. As the Builder did not honour his commitment of completion of the construction of the Gala and hand over the possession as per Agreement that this complaint has been filed.

In the complaint, complainant-Gala Purchaser has prayed for possession of the Gala or in the alternative refund of Rs. 6 lakhs with interest as also compensation, cost, etc.

AS stated O.P.-Builder were noticed by this Commission on 11th February, 2002 directing them to file their written statement on 4th April, 2002. The Builder-O.P. have been duly served and proof of service has been filed. From the Postal Authority''s endorsement, it is noticed that process was delivered upon them on 13th March, 2002. The postal receipt is in the Record and Proceeding. However, there is no response either by way of appearance or filing written statement. Therefore, matter has been ordered to proceed ex parte, since there is failure on the part of the Builder-O.P. to appear as also to file a written statement. The following points would arise for consideration : (1) Whether complainant-Gala Purchaser proves that he has agreed to purchase a Gala of the description mentioned in the complaint from the O.P.-Builder ? (2) Whether there is failure on the part of the O.P.-Builder to deliver possession and as such deficient ? (3) What reliefs complainant-Gala Purchaser is entitled ?

Our findings on the above points : Point Nos. 1 and 2 - Yes Point No. 3 - As per final order. Reasonings :

POINT Nos. 1 and 2 : The transaction in question is well documented. In that complainant-Gala Purchaser has produced the Agreement dated 28th February, 1998 which is registered one between him and the Builder-O.P. in respect of Gala in question. The Gala Purchaser-complainant has also produced receipts issued by the Builder evidencing payment of Rs. 6 lakhs towards consideration of the Gala. As is the case, the Builder-O.P. have not delivered the possession after completing the construction within agreed time. Furthermore O.P.-Builder were provided an opportunity as required under Section 13 of Consumer Protection Act, 1986 by serving process but there is no response to the process of this Commission either by way of appearance or by filing written statement. Consequently, case and claim of the complainant-Gala Purchaser as set out in the complaint has remained unchallenged and uncontroverted. Apart therefrom the documents as produced by the complainant-Gala Purchaser clearly clinching and convincingly established his case and claim in the complaint. Failure on the part of the O.P.-Builder to hand over the possession on agreed terms to the Gala Purchaser despite receipt of full consideration is breach of contractual obligations as also statutory obligations and the same would constitute deficiency in service.

IN the circumstances, we allow the claim of the complainant-Gala Purchaser. ORDER 1. O.P.-Builder are ordered and directed in the first instance to hand over the possession of Gala within 6 weeks of the receipt of the order herein. 2. On failure to comply with the aforesaid order, the Builder-O.P. are ordered and directed to refund sum of Rs. 6 lakhs to the complainant-Gala Purchaser with interest @ 12% p.a. from the dates as indicated herein below till realisation : Rs. 3 lakhs on 28th February, 1998 Rs. 3 lakhs on 20th May, 1998 3. O.P.-Builder shall also pay compensation of Rs. 50,000/- to the complainant-Gala Purchaser. 4. O.P.-Builder shall also pay cost to the complainant-Gala Purchaser quantified at Rs. 5,000/-. 5. 6 weeks'' time is granted to the O.P.-Builder for compliance of the order from receipt thereof. 6. Office shall furnish copies of the order to the parties. Complaint allowed.