The complainants are consumers under the Consumer Protection Act, 1986 and the opposite party engaged in unfair trade practice. The court held the opposite party liable for deficiency in service and ordered them to hand over possession, pay interest, and compensate the complainants.

ORDER :

Dr. S.K. Kakade, Member

This is a complaint against the Builders and Developers M/s. Bhoomi Vijay Properties Limited of Andheri, alleging unfair trade practice, filed by the complainants, husband and wife, under Section 12 of the Consumer Protection Act, 1986. The brief facts of this complaint are as follows.

2. The complainants, Shri. Gopalakrishna Pillai and Mrs. Shantha G. Pillai, are husband and wife, residing at Kalyan in the quarters allotted to complainant No. 1 by Central Railways on rental basis. As the complainants were in need of residential flat for the occupation and stay of the family, they found opposite parties as Builders and Developers constructing housing project in the name of “Prakriti Aangan” situated at survey No. 27, Hissa No. 11 and survey No. 52 Hissa No. 9/2, Village Gauripada, Taluka Kalyan, District Thane within the limits of Kalyan Dombivli Municipal Corporation and within the jurisdiction of Registration District Thane, Sub registration District Thane.

3. The complainants entered into a registered agreement for sale dated 6th June, 2013 for purchase of residential flat No. 802 on 8th floor of building, Wing B, admeasuring about 594.37 Square feet (carpet) in the complex known as “Prakriti Aangan”, referred as “said flat” for a total consideration amount Rs. 37,39,062. (Rupees Thirty Seven Lakh Thirty Nine Thousand Sixty Two only ) The complainants further state that the opposite party promised possession of the said flat on or before 31st of October, 2013 to the complainants. As per the demand of the opposite party, complainants paid Rs. 20 lakh to the opposite party while executing the registered agreement for sale dated 6th June, 2013, vide registration entry No. 4345 - 2013, dated 6th June, 2013 before Joint Sub-Registrar, Kalyan against lump sum consideration of Rs. 37,39, 062. On the basis of promise of possession of the said flat, Federal Bank released Rs. 9,91,250 in favour of opposite party on 12th August, 2013 and opposite party issued receipt No. 1033 dated 12th August, 2013.

4. Since the opposite party failed to deliver possession on the decided date, that is on 31st of October, 2013; the complainants suffered financial loss in the form of interest paid to the Federal Bank Rs. 3,19,000 and also the complainants had to pay the house rent allowance to the Government to the tune of 30% of the basic salary of the complaint No. 1. The complainants allege unfair trade practice by the opposite party and thus pray for vacant and peaceful possession of the said flat and also demand paying of interest amount Rs. 3,58,950 towards the interest on the paid amount to the opposite party. Additionally also claim for Rs. 5 lakh as compensation for mental agony, suffering and hardships caused to the complainants.

5. The opposite party (henceforth designated as OP) opposed the admission of this complaint and denied all the allegations levelled against it by filing written statement. The opposite party raised preliminary objections in the written statement that, the complainants are not consumers within the meaning of the Consumer Protection Act, 1986. The OP also stated that the complaint suffers from misjoinder of necessary parties, Mr. Ripon Jain who was opposite party’s authorised signatory, resigned from service with effect from 9thDecember, 2013 and hence there is misjoinder of the opposite parties. As per the registered agreement for sale between complainants and opposite party, the complainants were to pay an amount of Rs. 4,74,408 toward interest on delayed payment of instalments demanded by the opposite parties and also required to pay an amount of Rs. 1,09,760 towards Service Tax. So an aggregate amount of Rs. 5,84,168 (Rupees Five Lakh Eighty Four Thousand One Hundred Sixty Eight only) is still pending from the complainant. In the written statement, the opposite party pleaded that despit