Back
MADHYA PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL
S.D. Agarwal, Presiding Member, Monika Malik, Member
Jayant Chavhan & Anr. - Complainants
Versus
Navkar Real Estates - Opposite Party
Consumer Complaint No. 80 of 2016
Decided On : 18-09-2018
Advocate Appeared:
For the Complainants :Mr. Deepesh Joshi, Advocate.
For the Respondent:Mr. Nitin Pandit, Advocate.
The main legal point established in the judgment is that the failure to deliver possession of the flat constituted unfair trade practice and deficiency in service under the Consumer Protection Act, 1986, entitling the complainants to refund of the amount paid along with compensation.
Headnote:
Deficiency in Service - Real Estate Dispute - [Consumer Protection Act, 1986 - Section 2(1)(g), Section 2(1)(o), Section 2(1)(r), Section 14(1)(d), Section 21(b)] - The court discussed the provisions of the Consumer Protection Act, 1986, including the definition of 'deficiency in service' and 'unfair trade practice', and the entitlement of the complainants to refund of the amount paid along with compensation. The court's decision was influenced by the interpretation of these provisions and the application of the principles established in the Cosmocity Flat Buyers Welfare Society v. Adel Landmarks Ltd. case.
Fact of the Case:
The complainants alleged deficiency in service by the opposite party for not completing the construction and handing over the possession of the flat after receiving 80% of the total consideration within the prescribed time limit. The opposite party denied the allegations and claimed that the complainants were defaulters and not entitled to any relief.
Finding of the Court:
The court found that the opposite party was guilty of unfair trade practice and deficiency in service for failing to deliver possession of the flat even after more than five years from the initial allotment. The court directed the opposite party to refund the entire amount paid by the complainants along with interest and awarded compensation for mental agony and hardships suffered.
Issues: (1) Whether there is deficiency in service on the part of the opposite party in not giving possession of the constructed flat in time as alleged by the complainants, and (2) Relief.
Ratio Decidendi: The court held that the opposite party's failure to deliver possession of the flat constituted unfair trade practice and deficiency in service, entitling the complainants to refund of the amount paid along with compensation.
Final Decision: The court allowed the complaint and directed the opposite party to refund the entire amount paid by the complainants along with interest, and awarded compensation for mental agony and hardships suffered.
ORDER :
S.D. Agarwal, Presiding Member
This is a complaint filed by the complainants alleging deficiency in service on the part of the opposite party in not completing the construction and handing over the possession of the flat even after receiving 80% of the total consideration within prescribed time limit.
2. Brief facts of the case as narrated by the complainants are that the complainants booked a residential flat in the newly launched township of the opposite party namely ‘Park Serene’ at Kolar Road, Bhopal for which on 30.9.2011 parties entered into an oral agreement in respect of 3 BHK Flat (Fully Air-Conditioned with Modular Kitchen) at Apollo-2 Tower, Park Serene, Kolar Road, Bhopal and the opposite offered to deliver the possession of the same within one year from the date of said agreement and it was assured that the possession of the Flat would be delivered to the complainants on or before 24.10.2012 i.e. before Dussehra. Since the complainants took financial assistance by way of loan from HDFC Bank, M. P. Nagar, Branch, Bhopal, therefore a Tripartite Agreement was executed between the Complainants, Opposite Party and the HDFC Bank Ltd. on 16.12.2011. The Bank and the Opposite Party insisted the complainants to execute an Indemnity Bond promising that possession of the Flat would be delivered to the complainants within 20 months, instead of one year. As the Flat was assured to be under construction, the said Indemnity Bond came to be executed by the complainants in favour of HDFC Bank Ltd. on the same day, i.e. 16.12.2011.
3. It is alleged that against the total sale consideration (i.e. cost of the Flat) of Rs. 21 lacs, the complainants on different dates, till January-2012, had paid Rs. 18,87,500. The opposite party thereafter issued an Allotment-cum-Acceptance Letter to the complainants. It is further stated that having paid almost 80% of the total sale consideration to the opposite party, the complainants have paid the principal amount of Rs. 3,54,515 and an interest of Rs. 3,62,621 to their Banker, the HDFC Bank Ltd. till 31.3.2016 towards repayment of loan. But there is no action on the part of the opposite party so far, as the opposite party did not deliver the possession of the Flat to the complainants, so far. Apart from liability of payment of interest on the loan amount, the complainants are suffering from hardships and inconvenience due to non-delivery of the possession of the flat, which ought to have been delivered to them in the year 2012.
4. As there appeared no chance of completion of construction of the flat as per agreement and the prescribed time limit of possession of flat had already passed, the complainants issued a registered notice on 23.6.2014 to opposite party, but no response was given by the opposite party, which clearly shows that the opposite party is not only deficient and negligent in delivering the possession of the flat to the complainants but has also committed unfair trade practice, leaving the complainants to wait for indefinite period for possession of their Flat. It is further stated that in the Allotment-cum-Acceptance Letter, it is specifically provided that the Allottee (the complainants) shall be liable to pay to the Developer (opposite party) interest @ 24% p.a. on all amounts due and payable by them, if the amounts are outstanding for more than 7 days. Hence, the complainants are also entitled to claim interest at the rate of 24% p.a. on the total amount paid by them to the opposite party from the date of payment in case of default on the part of the opposite party in not delivering the possession of the Flat to the complainants. The complainants therefore filed the present complaint claiming refund of the amount deposited by the complainants with interest and compensation.
5. The opposite party filed their reply wherein they have admitted certain facts and declined certain facts. It is admitted that they have launched township namely ‘Park Serene’ at Kolar Road but it is deni
