The court emphasized the statutory duty of the opponents to execute an agreement after receiving a substantial amount, and the complainant's entitlement to possession and compensation.

ORDER :

Mr. P.B. Joshi, Presiding Judicial Member-Complainant booked a flat bearing No. 2004 on 20th floor, admeasuring 492 sq.ft. carpet area in Tower B in project named as “Sai Nirvana”, situated Opp.Shahad Octroi Naka, Shahad Circle, Shahad, Kalyan West 421 103 for total consideration of Rs. 29,61,245 on 26.2.2012. On the same day, complainant paid Rs. 1,04,000. Thereafter, in the month of March 2012, Rs. 4,88,249 were paid. Thereafter, an amount of Rs. 1,15,000 was paid on account of amenities and Rs. 2 lacs on account of club house and other heads in the years 2012 and 2013 respectively. It was contended that allotment letter was issued somewhere in 2013 without date. However, no agreement was executed. It was orally assured that possession will be given in the year 2015. However, possession was not given and hence a letter for cancellation of the flat booking was given by the complainant to the opponents on 31.1.2015. However, it is specifically mentioned in the said letter that within 8 days from receipt of the said letter, amount paid by the complainant be returned to the complainant along with interest @ 24% p.a. It was not replied by the opponent till September 2015 and in September 2015, a letter was sent by the opponent mentioning that the cancellation offer is accepted. It was contended by the complainant that when the cancellation letter was sent by the complainant to the opponents, the complainant was to book another flat by taking refund of the amount. However, amount was not returned by the opponents within 8 days from the receipt of the letter and hence complainant continued with this allotment letter and finally filed this consumer complaint for direction to opponent to execute agreement in respect of the said flat by accepting remaining consideration and to hand over possession of the said flat to the complainant. It was alternatively prayed that any other flat in the same area of same size or in the same building for the same consideration. It was also prayed that an amount of Rs. 3,217 be returned to the complainant as excess service tax was recovered from the complainant along with interest @ 24% p.a. Complainant also prayed that opponents be directed to pay interest @ 24% p.a. on the amount paid by the complainant till handing over the possession of the flat. Complainant prayed for Rs. 10 lacs as compensation for mental agony and physical sufferings. Complainant prayed for Rs. 50,000 as costs.

2. Opponents did not appear even after service and hence ex parte order was passed on 29.3.2016. Thereafter, opponent tried to appear on 27.7.2018 with application that ex parte order be set aside which was rejected and specific direction was given to them that they can participate in the proceedings and may attack on law points. However, opponents thereafter did not appear. Complainant filed evidence.

3. Considering submission made by the Advocate, considering pleadings and record and scope of the complaint, following points arise for our determination and our findings thereon are noted as against them for the reasons herein below:

Sr. No. Points Finding

1. Whether there is deficiency in service on the part of the opponents? Yes

2. Whether the complainant is entitled for direction to the opponents to execute agreement and register it? Yes

3. Whether the complainant is entitled for possession of the flat booked or alternative flat of same size in same building/area? Yes

4. Whether the complainant is entitled for refund of Rs. 3,217 as excess service tax recovered from the complainant by the opponent along with interest @24% p.a.? No

5. Whether the complainant is entitled for interest @ 24% p.a. on the amount paid till the possession is handed over? As per final order

6. Whether the complainant is entitled for Rs. 10 lacs on account of mental agony and physical sufferings? As per final order

7. What order? As per final order

REASONS

POINT NO. I : [DEFICIENCY IN SERVICE]

4. Complainant has contended that complainant has booked fl