SHRIKANT MALEKAPPA MOGE vs CHAITANYA CONSTRUCTION

NONE of the O.Ps. have filed the written statement although duly served. Mr. J.R. Shaikh, learned Advocate for O.P. No. 3 tenders his appearance. Taken on record. O.P. Nos. 1 and 2 although duly served have not responded either by filing appearances or written statements in answers to the case and claim of the complainant as set out in the complaint. This office by notice dated 24.9.2003 has intimated todays date of ex parte hearing of this complaint to all the O.Ps. and the said notice is in the record and proceeding. However, except O.P. No. 3 no one responded.

IT is stated on behalf of O.P. No. 3 that the flat in question being the subject matter of the complaint herein has been sold to him by the Builders/O.P. Nos. 1 and 2 and that presently he is in possession. It is to be stated that even the complainant has also knowledge of the said position, as O.P. No. 3 has been made party in this complaint as well. As stated, complaint is listed today on our board for ex parte. Few relevant facts:

This is usual dispute between the flat purchaser and the Builders. Complainant is a flat purchaser and O.P. No. 1 are the Builders and O.P. No. 2 the Bank from whom the complainant has secured the loan for payment of consideration of the flat.

HEREIN after complainant is referred to as Flat Purchaser, O.P. No. 1 as Builder, O.P. No. 2 as Bank and O.P. No. 3 as Second purchaser of the flat. The transaction in this matter dates back to July, 1996. In that, on 17.7.1996 the flat purchaser and the Builder entered into an agreement, whereby the Builder agreed to sell flat No. 5 on second floor in his project known as Trimurti Apartment project on Plot No. Y-3A at Belapur, New Mumbai for total consideration of Rs. 3,53,100/-. On the date of execution of the agreement, flat purchaser paid by cheque sum of Rs. 1,12,400/-. Agreement executed between the parties forms part of the annexure to the complaint being Exhibit A.

BUILDER was to make over the possession on 30.6.1997 and payment schedule has been set out in first paragraph itself and it is a case of the complainant/flat purchaser that he was ready and willing to adhere to the said schedule of payment. Complainant further says that from time-to-time, he paid different amounts to the builders/O.Ps. and total consideration paid is Rs. 3,92,000/-. Complainant has explained that the extra payment over and above agreed in the agreement was paid because of the demand made by the Builders and as the complainant was in dire need of the premises. However, despite payment of full consideration, Builder did not hand over the possession of the flat in question either within agreed time as per agreement or thereafter. On the other hand, complainant states (refer para 9 of the complaint) that somewhere in August, 2001 he noticed flat in question ear-marked for the complainant having been delivered to O.P. No. 3, who is in possession.

COMPLAINANT enquired with the O.P. No. 1/Builder of the possession, but no satisfactory reply was given and hence the complaint.

AS stated, there is no written statement filed by and on behalf of O.P. No. 1/Builder. O.P. No. 2 has been made as a formal party as the complainant had secured loan from it for payment of consideration of the flat and O.P. No. 3 as stated is one, who claims to be purchaser of the flat from the Builder as stated and as such is in possession. Facts as noticed hereinabove which have remained unchallenged and uncontro-verted as there being no written statement filed by and on behalf of the Builder/O.P. No. 1, clearly show that the complainant/flat purchaser has paid total consideration of Rs. 3,92,000/- for flat No. 5 to the O.P. No. 1/Builder and that there is failure on the part of the Builder/O.P. No. 1 to deliver the possession.

Furthermore, the facts as made available clearly shows the Builder/O.P. No. 1 having improperly and illegally sold flat No. 5 earmarked for the complainant to O.P. No. 3 who happens to be in possession of the flat in question.

BOTH these acts/omissions on the part of the builders constitute grave deficiency in service and we hold accordingly. Since the complainant proves deficiency against Builder/O.P. No. 1 who is main contestant in this complaint, we hold that the complainant is entitled to reasonable claims as he has claimed in the complaint including the compensation, etc. for the mental agonies suffered.

ADDITIONAL factor which is present in the matter herein is that the complainant during all these dates is required to procure premises on Leave and Licence basis for which according to him he has to pay compensation/occupation charges @ Rs. 2,500/- per month since 1998 and in item No. 10 in particulars of claim, he has claimed sum of Rs. 1,45,000/- on that count. We will take this aspect into consideration while awarding the compensation. ORDER 1. O.P. No. 1 are held deficient in service in the matter of transaction between the complainant and them failure for delivery of possession of flat No. 5 in Trimurti Apartment. 2. O.P. No. in the first instance are ordered to provide a flat equivalent as mentioned in the agreement in question in the nearby project or in the similar vicinity within 6 weeks of the receipt of the order herein. OR In the alternative, O.P. No. 1 are ordered to refund sum of Rs. 3,92,000/- to the complainant with interest @ 18% p.a. on the amounts as per particulars mentioned below from respective dates of payments till relization: On 3. O.P. No. 1 shall also pay compensation to the complainant quantified at Rs. 1,00,000/-. 4. O.P. No. 1 shall also pay cost in this complaint to the complainant quantified at Rs. 25,000/-. 5. As far as O.P. Nos. 2 and 3 are concerned, no reliefs are required to be granted, they being a formal party. 6. Copies of the order herein to be furnished to the parties. Complaint allowed.