Decided on July 09,2013

Vatsala Rajan Vaidya Appellant
Raj Homes S V Builders Respondents


NARENDRA KAWDE - (1.)THIS consumer complaint has been filed by the complainant alleging deficiency in service against the opponent, Raj Homes S.V. Builders and ors. (hereinafter referred to as "opponent builder/developer") since the opponent builder/developer did not deliver possession of the flat as per the provisions of registered sale deed. Case in brief as pleaded by the complainant is summarized as under:
(2.)THE complainant has entered into the agreement dated 21/0172010 with the opponent builder/developer for purchase of flat no.601 on the 6th floor in 'A' Wing admeasuring 1033 sq.ft. at the agreed consideration of Rs.65,14,400/ - As per the agreement, construction of the flat was to be completed and the flat was to be handed after it is ready for use i.e. on or before 31st August, 2010. However, the opponent builder/developer failed to act as per the provisions of the agreement entered between the parties of the flat in stipulated time. The complainant for several times approached the opponent builder/developer for delivery of possession of the flat and subsequently issued notice through the advocate. All the efforts of the complainant to get the possession delivered proved futile and therefore this consumer complaint is filed before this State Commission seeking possession of the disputed flat in terms of registered agreement, compensation of Rs. 30 lacs for mental agony and with the further prayer to restrain the opponent to create third party right in the said flat. Out of the total cost of Rs.65,14,400/ -, the complainant has paid an amount of Rs. 55,37,240/ - to the opponent builder/developer against the total consideration. Though 90% of the amount has been paid, yet the opponent builder did not complete the construction work of the project and deliver the possession as stipulated in the registered agreement.
(3.)THE complaint has been filed on 24/05/2012. It was registered and processed for hearing. The notices were issued through the State Commission for the opponents on 27/06/2012 intimating the date of hearing of the complaint i.e. 27/08/2012. The notice was issued directing the opponents to be present on the scheduled date, failing which the matter to proceed in their absence ex -parte. The opponent nos.1 to 5 and 7 refused to take delivery of the notices. The matter was adjourned to await service report in respect of opponent no.6 and was ordered to proceed ex -parte against opponent nos.1 to 5 and 7 and the complaint was fixed for hearing on 23/11/2012. Notice sent to the opponent no.6 returned undelivered with postal endorsement as 'refused'. Attitude of the opponents to show utter disregard to the Law of Land is most deprecable as they have bluntly refused to accept the notices sent by this State Commission for their acceptance. Therefore, we are constrained to proceed ex -parte in this matter. Thus, all opponents were served including the opponent no.6 at later stage. All the opponents were absent at the time of hearing on 23/11/2012. Therefore, it was ordered to proceeded u/s. 13(2)(b)(ii) of the Consumer Protection Act, 1986 ex -parte against the opponents. The opponents preferred to remain absent, though served throughout the proceedings of the complaint. Therefore, there is no written version and affidavit evidence of opponents. The affidavit in evidence and brief notes of arguments of complainant were taken on record and the case was adjourned for hearing to 15/04/2013. However, final hearing was concluded on 27th June, 2013 and it was closed for orders.
Since the complaint proceeded ex -parte, we have scrutinized all the documents placed before us by the complainant. Admittedly, there is a registered agreement executed between the parties on 21 /01 /2010 for purchase of disputed flat with consideration Rs. 65,14,400/ -. The possession of the flat was to be delivered as stipulated in the said agreement on or before 31st August, 2010. In reply to legal notice addressed. to the other flat purchaser in the same building, it is stated that the opponents has never neglected to carry out the construction work for the building project. However, the opponents have encountered various problems like electricity cut, shortage in cement and steel, shortage of water supply also shortage in labour which were beyond the control of the opponents. It is also stated that clause no.19 of the agreement comes to rescue of the opponent for delay in completion of the project for the reasons beyond the control. It is further stated in the said notice in reply that the opponent builder/developer approached to C1DCO for granting additional FSI of 0.50 to be utilized on the said disputed plot and he was hopeful for getting permission from the CIDCO shortly. However, we do not find such a reply on record from the opponent builder/developer addressed to present complainant who is purchaser of the flat along with others.


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