The court established that failure to execute a sale agreement and delay in possession amounts to deficiency in service under consumer protection laws.

1. The complainant - Madan Harishchandra Surve is resident of Sector Number 15 of Vashi, Navi Mumbai. The opponent - Mahendra Pawan Kumar Singh is the proprietor of M/s.Tirupati Balaji Builders and Developers, engaged in business of development and construction. The complainant on believing the assurance made by opponent in the hoardings and advertisement, visited the office of opponent at Sai Shakti Apartments, Panvel Matheran Road, Plot No. 4, Sector 12, New Panvel for booking, a flat in the project known as ‘Balaji Kalash’. The complainant made the payment of Rs. 2,00,000 by two cheques of Rs. 1,00,000 each, to the opponent bearing cheque Nos. 387834 and 387835, drawn on Corporation Bank, Vashi, Navi Mumbai branch dated 25th February 2013. The opponent agreed to sell the flat in phase No. IV, building No. D - 4, D wing on second floor for total consideration of Rs. 20,52,120 and agreed to deliver the possession till May 2016. Thereafter, the complainant visited the opponent for registration of agreement to sale. However, the opponent was postponing the same on one pretext or another. As the opponent failed to register the agreement, the complainant decided to withdraw the amount of Rs. 2,00,000 deposited with the opponent towards booking charges. The opponent also did not inform or made it clear as to when he will complete the construction or give the flat as promised. Therefore, the complainant, requested the opponent, to refund the amount of Rs. 2,00,000. The opponent admitted that there is delay in commencing the construction of Phase IV and he promised that instead of refunding the amount, he would deliver the possession of flat in building number D - 4, D wing on 3rd floor of area admeasuring 560 square feet.

2. Thereafter, the complainant made continuous enquiry with opponent. However, he failed to give timely possession of the flat. Hence, the complainant has issued notice to opponent. However, said notice return unserved, with the endorsement ‘left’. Therefore, the complaint has filed the consumer complaint for deficiency in service on the part of opponent and for adopting unfair trade practice by opponent. The complainant claimed the possession of flat or in the alternative, refund of amount of Rs. 2 lakh alongwith interest @ 18% per annum and compensation of Rs. 10 lakhs towards mental agony.

3. After filing this complaint in spite of issuance of notice to opponent, the opponent remained absent. Hence, this complaint proceeded ex parte against the opponent. The complainant in support of his complaint has filed his affidavit of evidence and also produced the documents consisting of xerox copies of cheques issued to opponent and the xerox copy of the passbook of the complainant, showing the disbursement amount of Rs. 1,00,000 each against two cheques, on 25thFebruary, 2013. The complainant also produced the copy of the receipts issued by opponent regarding payment made by complainant to him towards booking of flat and the copy of notice dated 13thJune, 2016 issued to opponent and the xerox copy of envelope which is returned unserved with endorsement as ‘left’. Later on Advocate for complainant produced the original envelope alongwith registered postal receipt. These documents are at page nos. C4 to C12. As the complaint is proceeded ex parte against the opponent, evidence adduced by the complaint remained unchallenged.

4. The Advocate for complainant has filed written notes of argument and also argued before this Commission. He has drawn our attention towards documents and affidavit in support of it. It is submitted that the opponent has avoided the notice issued by complainant prior to the filing of complaint and also avoided the notice of this consumer complaint. T