Jainendra H Dwivedi vs MAHAVIR BUILDERS

NONE for O.P., although duly served. (For brevitys sake the complainant herein is referred to ''Flat purchaser'' and O.P. as ''Builder'').

ALTHOUGH the Builders have been duly served with the process in this matter along with copy of the complaint and Annexure thereto long back, but the Builders have not responded either by filing written statements or by appearance. The complaint has been filed in the year 1998. This Commission in the past has intimated the adjourned dates to the O.Ps. on 4 occasions viz., 23.2.2000, 3.5.2000, 3.12.2001 and last on 26.11.2002. O.Ps. have maintained consistently in remaining absent by last notice dated 26.11.2002, die implications has been given to the Builders in these words - ''Take further notice that should you fail to remain present and attend to the matter on the afforesaid adjourned date as directed, or thereafter on adjourned dates, as the case may be, the Commission shall proceed to dispose of the matter, even in your absence.'' As stated none is present. Furthermore, as directed by us, the Advocate for complainant has also intimated at one stage the adjourned date to the O.P., copy of his letter dated 9.7.2001 alongwith such evidence received by the O.P. has been tendered which has been taken on record and marked Exhibit. A.

IN these circumstances this matter was ordered to be proceeded as ex parte. That is why how it appeared today. Few relevant facts -

AS stated the complainant and Builder had the deal somewhere in the year 1994 whereby the flat purchaser agreed to purchase flat admeasuring to 1051 sq. ft. in the project of the Builders for total consideration of Rs. 7,35,700/ - in April, 1994. The flat purchaser paid initially the booking amount of Rs. 50,000/ -. The Builder also issued allotment letter dated 2.11.1994 which is Exhibit A to the complaint. Vide the said letter the Builders have recorded the fact of deal between the parties and has acknowledged receipt of booking amount paid by the flat purchaser as mentioned above. It is the case of the flat purchaser that from time to time he paid a sum of Rs. 7,44,000/ - to the Builders, particulars whereof have been set out in Para 2(c) of the complaint. The said payment except sum of Rs. 60,000/ - which is last item in Para 2(c) of the complaint have been receipted by the Builders. It is to be stated that a sum of Rs. 60,000/ - has been paid in cash and rest of the payment by cheque. Despite payment, it is the case of the complainant that the Builders did not commence the construction work and possession of the flat given. This is despite the flat purchaser by letter dated 13.4.1997 to the Builder informing about the urgency of the flat. However, there was no response. After correspondence with the Builders, as there was no encouraging or positive response that the flat purchaser has filed this complaint. The flat purchaser has alleged deficiency which can be summarized as - (i) Non -execution of proper documentation as required under the law. (ii) Receipt of amount towards consideration almost entire amount even without there being commencement of the construction. (iii) Withholding the amount all these days. (iv) Non -delivery of possession.

AS stated although the Builders have been duly served they have not chosen to remain present. For that matter no appearance or written statement has been filed.

CONSEQUENTLY , the case and claim of the complainant as briefly adverted herein above has remained unchallenged and uncontroverted. The complaint is set out of the facts as also non -relevant documents which forms part of the exhibit of the complaint has remained unchallenged and uncontroverted by the Builders. In fact the documents such as letter of allotment, receipts issued clearly shows there being deal between the flat purchaser and Builder as offered by the complainant and there is failure on the part of the Builder to discharge his statutory obligation and also contractual obligation towards the flat purchaser/complainant herein.

WE hold that such commission and omission on the part of the Builders to constitute service within Section 2(1)(o) of Consumer Protection Act, 1986, and as such we further hold the complainant is entitled for refund as claimed in the relief. Since the deficiency stands true, we hold the complainant/flat purchaser will be also entitled for reasonable compensation in that account.

AS far as the amount of compensation/damages is concerned, since the deficiency against the Builders stands established under Section 9 of Flat Ownership Act, 1963, provides interest at the rate of 9 per cent per annum on the amount of consideration paid by the flat purchaser but that will be not a situation here when the refund is required to be made from the reasons not beyond control of the Builders. In the matter herein this is not case. As far as rate of interest is concerned, we wish to make reference to letter dated 2.11.1994 addressed by the Builder to the flat purchaser wherein the Builders have given implication to the flat purchaser that in the event of default or delayed payment of the flat purchaser towards consideration of the flat, the same would attract interest at the rate of 21 per cent per annum. In our view the same in the circumstance is to be made applicable for the reverse position as is the case herein. ORDER 1. The O.P./Builders ordered and directed to refund of Rs. 7,44,000/ - with interest at the rate of 21 per cent per annum to the flat purchaser/complainant. Interest to be paid on various amounts as under : Sr.No. Amount Rs. With effect from 1. 50,000/ - 21.4.1994 2. 55,000/ - 26.10.1994 3. 1,95,000/ - 26.10.1994 4. 99,000/ - 2.11.1994 5. 75,000/ - 14.12.1994 6. 50,000/ - 17.12.1994 7. 80,000/ - 14.7.1996 8. 80,000/ - 14.7.1996 9. 60,000/ - 20.7.1996 Rs. 7,77,000/ - 2. Builders shall pay compensation to the flat purchaser/complainant a sum of Rs. 50,000/ -. 3. Builder shall also pay vost quantified to Rs. 5,000/ -. 4. Office to furnish copies of the order to the parties. Complaint disposed of. -