IMPORTANT POINT
Non-delivery of possession within stipulated period, after receipt of consideration of amount, amounts to deficiency in service as well as unfair trade practice.

JUDGMENT

A.Z. Khwaja, Judicial Member—Complainants namely Mr.Alan Fernandes and Mrs.Venicia Fernandes, resident of Ghatkopar(W), Mumbai, have preferred present complaint under the Consumer Protection Act, 1986 alleging deficiency in service. Complainant Nos.1 and 2 have contended that they were consumers of opponents. Opponent No.1 -M/s.Vaastu Developer (Heeral) claims to be builder /developer engaged in the business of construction of project for housing. On 28/06/2011, complainants were attracted by the promotion of opponents project namely ‘Vastu Pearl’, located at, village Village Asalpha, Taluka Kurla, Mumbai. Complainants made enquiry from Mr.Balchandra Narayan Todankar of opponents and decided to book residential flat i.e. flat No. 502 admeasuring 688 sq.ft on the 5th floor, of building ‘Vastu Pearl’ being constructed by the opponents on the plot bearing number 17, Hissa No. 10 of Village Asalpha, Taluka Kurla, Mumbai Suburban District. Complainants have contended that opponents promised them that the project would be ready for delivery on or before January 2013 and the possession would be given on the stipulated date. Complainants have also stated that the letter of allotment dated 30/06/2011 was executed between the M/s. Vaastu Developer, represented through the authorised signatory Mr.Nikhil Singh, as the Promoters/ Developers and the complainants. Complainants have contended that the price of the flat was fixed at Rs.34,40,000/- @ Rs.5,000/- per sq.ft. Complainants thereafter made payments from time to time to the opponents. Complainants had made payment of Rs.15,72,000/- out of total payment and were also ready to pay the balance amount. But the opponents neither started the construction of the building nor get the plan approved. On the contrary, opponent No.5- Mr.Nikhil Singh promised that the opponents will start the construction very soon and possession will also be delivered of the flat. Complainants have contended that they have paid more than 20% of the sale consideration on 30/06/2011 and so it was necessary for the opponent Nos. 1 to 4 as the promoters in terms of section 4 of the Maharashtra Ownership of Flats Act, 1963 to enter into written agreement with the complainants for the said flat and also to register the same. Bu the same was not done. Complainants thereafter reminded the opponents several times but there was no response and there was absolute delay in completing the construction and handing over possession of booked flat to the complainants. Opponents have given commitment to deliver the possession on or before January 2013. But the complainants did not get the possession and so complainants were required to pay rent for accommodation @ Rs.10,000/- per month. Complainants have contended that they have already paid amount of Rs.15,72,000/- to the opponent out of Rs.34,40,000/- and so there was deficiency in service on the part of the opponents by non delivery of possession and also non execution of the agreement to sell. Complainants were therefore compelled to file the present complaint, with a prayer to direct the opponents to execute and register the agreement for sale in respect of the suit flat bearing Flat Number 502, 688 sq. ft, on the 5th floor, of ‘Vastu Pearl’, village Asalpha, Taluka Kurla, Mumbai Suburban District and further to handover possession of the same to the complainant. Complainants have also prayed for compensation and costs.

2. After filing of the present complaint, notices were issued to the opponents and opponents were duly served. Opponent No. 2 appeared and resisted the complaint by filing written version denying all the contentions.

3. Opponent No.2 has appeared and resisted the complaint by filing written version denying all the contentions. Opponent No.2 has denied that any flat was sold or any letter of allotment was issued in respect of flat No.502 to the complainant. Opponent No.2 has denied that the complainants have deposited any cheque in his personal or Part