The main legal point established in the judgment is that delay in handing over possession of a flat by a builder constitutes deficiency in service under the Consumer Protection Act, entitling the flat purchaser to compensation and interest.

Mr. Justice M.S. Rane, President—The dispute herein is between the flat purchaser (original complainant since deceased) and the builders, complainant being a flat purchaser and opposite party being a builder (hereinafter for brevity’s sake referred to as “Flat purchaser” and “Builder”).

2. The present complainants are the legal heirs and representatives of the original flat purchaser, who died during the pendency of the complaint.

3. The flat purchaser has filed the complaint herein, seeking refund of Rs. 10,75,377/- being the amount paid by him to the builder for the purchase of flat being No. 106 admeasuring about 730 fq. ft. (hereinafter for brevity’s sake referred to as “Flat”) in a project undertaken by the builders for construction. The said amount represents the principal amount paid by the flat purchaser of Rs. 3,49,000/- as also the interest @ 24% p.a., Rs. 50,000/- towards expenses, Rs. 2,50,000/- towards compensation, mental agonies and a sum of Rs. 1,32,000/- towards the rent paid by the flat purchaser for securing the accommodation for residence for himself and his family as a result of builder not handing over the possession of the flat, after construction as per agreed time.

4. Few relevant facts :

The flat purchaser booked a flat in the project of the builder by responding to the letter dated 25.1.1995 addressed by the builder to the flat purchaser (Exhibit C-1 on page No. 12 of the complaint). By the said letter, the builders agreed to sell a flat to the flat purchaser on the basis of payment schedule mentioned thereunder. The flat purchaser paid the initial amount as required.

The Agreement being dated 21.9.1995 was executed (Exhibit C-2 on page No. 13 of the complaint) between the flat purchaser and the builder, whereunder total consideration was agreed at Rs. 3,67,190/- in respect of the said flat. It is to be stated that as far as these two documents, which are relevant and main documents, there is no dispute between the parties.

The flat purchaser in accordance with the offer of the builder, Exhibit C-1 and the Agreement, Exhibit C-2, paid the payments to the builder as per schedule and particulars have been mentioned in paragraph 4 of the complaint. The flat purchaser paid a sum of Rs. 3,49,000/-, for which, builder also issued the receipts.

As per Agreement, the builder was to hand over the possession by 31.12.1996. However, he did not fulfil his obligation under the Contract or completed the construction under the Project. Since no possession was handed over, flat purchaser approached the builder on a number of times and finally on 1.9.1999 and demanded a sum of Rs. 3,49,000/- with 24% interest p.a. The builder did not oblige. Hence, the complaint.

5. The complainant has set out the particulars of claim in Exhibit C to the complaint.

6. The builder has filed written statement raising various contentions. It is to be stated however that as far as material aspects are concerned, germane to the claim of the flat purchaser, the facts of execution of Agreement, payments by the flat purchaser, all these facts have been disputed.

7. As far as failure on the part of the builder to fulfil their obligation under the contract of handing over the possession, this is what the builder has stated in paragraph 3(d) as under :

“With reference to para No. 8, it is submitted that the construction of the said building was actually delayed by some unavoidable circumstances as well as by the default in payment of instalments by the customers/purchasers including the complaint also, still the opposite party had managed to provide the possession of a flat alternatively if they were informed properly about the grievances of the complainant.”

8. It would thus be noticed that the builder admits there being delay on their part in construction of the project and handing over of the possession.

9. The entire tenor of the written statement filed by the builder goes to suggest that the delay caused was beyond his control. Therefore, the cla