The statutory duty of the builder to execute the agreement upon accepting any amount and the entitlement of the flat purchasers to possession despite cancellation attempts by the builder.

ORDER :

Mr. P.B. Joshi, Presiding Judicial Member-We have heard submissions of Mr. Uday B. Wavikar, Advocate a/w. Ms. Bhagyashree Dhamapurkar, Advocate and Supriya Patil, Advocate for complainants and Mr. A.V. Patwardhan, Advocate and Mr. Ajay Pawar, Advocate for opponents.

2. It is necessary to note here that both these complainants had filed consumer complaint before the District Forum, Mumbai Suburban and it was numbered as CC/144 of 2005. However, that complaint was withdrawn by the complainants as the District Forum had no pecuniary jurisdiction. Permission was granted for withdrawal of complaint by the District Forum and thereafter, same complaint was filed before this State Commission without even changing title cause. It was necessary for the complainants to prepare a fresh complaint addressing to this Commission without changing facts of the case. However, complainants instead of doing that same complaint which was actually addressed to District Forum filed here in this Commission. However, even our office did not notice the same and registered the same.

3. Complainants booked a flat with opponents for total consideration of Rs. 38,32,000. Complainants paid Rs. 1,91,600 on 2.4.2004. No receipt for payment was issued. However, letter was issued by the opponents to the complainants mentioning about receipt of said amount out of total consideration of Rs. 38,32,000 for booking a flat and car parking space in a building ‘Oberoi Woods’ at Goregaon (East), Mumbai. As per complainant possession was to be given within eight months and balance was to be paid at the time of possession. It was contended that the opponents did not execute the agreement, did not hand over possession and hence there is deficiency on the part of opponents. It is because of that consumer complaint has been filed against the opponents with prayer that opponents be directed to hand over possession of the flat in the building “Oberoi Woods” situated at Goregaon (East), Mumbai–400 63. Complainants also prayed that opponents be directed to execute agreement in favour of complainants in respect of said flat and register it. Complainants also prayed that opponents be directed to obtain Occupation Certificate and Completion Certificate in respect of said building. Complainants prayed that opponents be directed to obtain water connection and electricity supply in respect of said flat and to provide all amenities. Complainants prayed that opponents be directed to pay interest @ 21% on the amount of Rs. 1,91,600. Complainants prayed that opponents be directed to pay Rs. 2 lakh towards compensation on account of mental agony suffered by the complainants and Rs. 50,000 towards incidental expenses incurred by the complainants.

4. Opponents resisted the complaint by filing written version which is at pages-101 to 115 of complaint compilation. Opponents have not disputed about booking of the flat, total consideration, part payment, however, contended that there is no deficiency on the part of opponents. It was contended that complainants had not paid remaining amount and hence, opponents cancelled the booking and returned the amount by way of cheque and hence, there is no question of giving possession of the flat to the complainants. Opponents also raised a plea of limitation that the complaint is barred by limitation. It was contended that there was no cause of action for filing consumer complaint. Opponents prayed for dismissal of complaint.

5. Considering the rival contentions of the parties, considering the record and keeping in view the scope of the complaint, following points arise for our determination and our findings thereon are noted for the reasons as below: