M Madhavan vs Atul Realty Pvt Ltd

NONE is present on behalf of the O.Ps. although duly served. The matter has been ordered for proceeding ex parte since no written statement has been filed by the O.Ps. despite service either within stipulated period of the notice or even thereafter. O.Ps. have been duly served and one Mr. Mithilesh Jha, an employee of O.Ps. Society has been authorised by O.Ps. and his authorisation is in the record and proceeding. However, no written statement has been filed. It is further noticed that on 25th January, 2001, application has been presented by and on behalf of the O.Ps. seeking 15 days time for filing written statement. The said application is also in the record and proceeding but no written statement has been filed. (For brevitys sake complainant is hereinafter referred to as Flat Purchaser and O.Ps. as Builder, O.P. No. 1 is a corporate entity and O.P. Nos. 2 and 3 are its Directors).

THE flat purchaser has filed this complaint alleging deficiency by the builders in not completing construction of the building and handing over the possession of the flat to the flat purchaser despite payment of substantial consideration. The flat purchaser has, therefore, claimed refund of the amount as also compensation, cost etc. At this stage Mr. Atul Havaldar Singh, employee of the O.Ps. appears and says that Advocate of O.Ps. is busy in High Court. However, it is to be stated that there is no written statement filed by and on behalf of the O.Ps. which was the Statutory requirements and as such mandatory and, therefore, matter has already ordered for proceeding ex parte which order stands, we continue with the narration.

IT is noticed that by letter dated 8th August, 1993 builders have offered to sale to the flat purchaser the flat No. C -503 in their proposed Complex admeasuring 1075 sq. ft. for total consideration of Rs. 7,93,750/ -. The location of the project was in Plot Nos. 42 to 45, Section 15 -C, CBD, Belapur, Navi Mumbai.

THE said letter is Exhibit -B to the complaint at page No. 19 which also confirms having received sum of Rs. 2 lakhs from the flat purchaser towards part consideration of the flat. The said letter also mentioned about execution of the agreement, etc. Thereafter, according to the flat purchasers, he made further payment of Rs. 1,20,000/ - on 12th August, 1993, Rs. 1,50,000/ - on 5th October, 1995, and Rs. 1,60,000/ - on 23rd December, 1995. All these payments have been made by cheques. The total consideration paid by the flat purchaser is Rs. 6,30,000/ -. According to the flat purchaser, builders received amount as they have negotiated the cheques and received the amounts hereunder as his Bank has already cleared the same.

THE correspondence exchanged between the parties forms part of Exhibits -C to W to the complaint. The correspondence mostly revolves over the inquiry by the flat purchaser about completion of the project and handing over of the possession and assurances on the part of the builders to the flat purchaser.

THE important letter of the O.Ps. is being dated 8th August, 1993 (Exhibit -C) to the complaint wherein the builders have informed the flat purchaser for refund of amount with interest @ 24% p.a. in the event of abandonment of the project. The flat purchaser has stated that despite substantial payment towards consideration and although he was ready and willing to discharge his obligation, the project has not even commenced. The builders have none -else withheld the amount. Hence the complaint.

AS stated the builders although duly served have not filed their written statement. Consequently, the claim and case of the flat purchaser has remained unchallenged and uncontroverted.

APART therefrom, all correspondence exchanged between the parties clearly indicates that builders were not able to complete the project of construction and hand over the possession of the flat to the flat purchaser. In the circumstances, the grounds of deficiency as would clearly emerge from the material on record vis -a -vis the builders would be as under : (1) Receipt of substantial consideration to the extent of Rs. 6,30,000/ - even before commencement of construction of the project which is contrary to the provisions of the Maharashtra Flat Ownership Act, 1963. (2) Non -execution of regular Agreement in accordance with the statutory requirement. (3) Not completing the construction of the project and making over the possession of the flat to the flat purchaser.

AS stated the deficiency on the part of the builders as mentioned herein above amply stands established and adequately borne out from the material made available in the complaint in a form of correspondence which forms part of annexures to the complaint.

WE , therefore, hold that the builders being deficient in rendering services to the flat purchaser on the grounds as indicated herein above. As is the case, the project has not come up at all and that being so, appropriate relief to be granted to the flat purchaser would be to order refund of the amount paid towards consideration as also compensation for deficiency in services, etc.

AS far as rate of interest is concerned, vide letter dated 8th August, 1993 (Exhibit -C to the complaint), builders had agreed to pay interest @ 24% p.a. in the event of abandonment of the project. This is exactly the case, which is happened and, therefore, the flat purchaser would be entitled to the interest at the said agreed rate.

OVER and above, the flat purchaser would also be entitled to the compensation in view of conduct of the builders, which is very much reflected from their own letter being dated 7th August, 1997 being Exhibit -L to the complaint at page No. 35 wherefrom it is noticed that on the date when they offered for sale of flat to the flat purchaser and substantial consideration received, the plan for construction were not even submitted to the concerned Local Authority. This is also an additional ground of deficiency on the part of the builders. We, therefore, thought that the flat purchaser is entitled to the reliefs as under : ORDER 1. O.Ps. -builders are jointly and severally ordered and directed to refund sum of Rs. 6,30,000/ - to the flat purchaser -complainant with interest @ 24% p.a. with diverse amount from the dates of payment till realisation as under : Amount Date Rs. 2,00,000/ - 12th August, 1993 Rs. 1,20,000/ - 12th August, 1993 Rs. 1,50,000/ - 5th October, 1995 Rs. 1,60,000/ - 23rd December, 1995 2. O.Ps. -builders are also jointly and severally ordered and directed to pay sum of Rs. 1 lakh towards compensation to the flat purchaser -complainant. 3. O.Ps. -builders shall jointly and severally pay cost to the flat purchaser -complainant quantified at Rs. 10,000/ -. 4. Office shall furnish copies of the order to the parties. 5. The abovenamed employee of the O.Ps. has been explained of the order passed. 6. 6 weeks time is granted to the O.Ps. -builders for compliance of the order from receipt of the order herein. Complaint disposed of