Oral Order:-

Per Smt. S.P. Lale, Honble Member:

This is a complaint filed against the builder for not giving possession of the flat for which part consideration was paid by the complainant. The complainant has claimed refund of the amount along with interest, compensation and cost.

The complainants case is that she has booked a flat no.301 in Lok Upahar Project at Virar(West) being constructed by opp.party for total cost of Rs.5,98,500/-. As per terms and conditions, complainant paid Rs.63,000/- on 18/10/1995 as a deposit against the provisional booking of flat. The complainant paid total amount of Rs.3,87,820/-. The complainant further states that she received a letter dated 02/11/1998 from the opp.party wherein opp.party offered her an alternative flat in Evershine Nagar at higher rate. The complainant refused the proposal of the opp.party and asked for refund of consideration amount paid to the opp.party. Opposite party vide its letter dated 23/12/1999 intimated their decision to the complainant that they would refund the amount by 30/12/2000. Opposite party refunded the following amounts to the complainant:

1. Cheque No. 238289 dt. 03/01/2000 Rs.38,800.00

2. Cheque No. 579166 dt. 17/06/2000 Rs.50,000.00

3. Cheque No.203213 dt. 22/11/2000 Rs.58,200.00

------------------

Rs.1,47,000.00

===========

However, opposite party failed and neglected to pay the balance amount as committed by them vide their letter dated 23/12/1999. The complainant sent legal notice dated 09/03/2001 to the opposite party. But opposite party failed and neglected even to reply the said notice. Hence, complainant has filed this complaint for refund of balance consideration along with interest, compensation and cost.

Opposite party resisted the claim of the complainant by filing written statement. Opposite party challenged the jurisdiction and maintainability of the complaint. It is contended by the opposite party that the Govt.of Maharashtra has declared the opposite party as âRelief Undertakingâ under provisions of Bombay Relief Undertaking (Special Provisions) Act of 1958 by Extra ordinary Notification dated 04/02/2000 and therefore, no proceeding could be initiated against the opposite party. In the alternative, it is contended that they are ready and willing to acquire and give possession of flat in Evershine City Housing Project of Evershine Builders to the complainants and willing to refund the entire balance amount advanced by the complainant as soon as financial condition improve.

The complainant has filed affidavit, copies of relevant documents along with receipts of payment in support of complaint. Opposite party has filed written statement and affidavit in support of their submissions.

Earlier this matter was decided by the Commission as per its order dated 08/12/2006 passing the award in favour of the complaint. Complaint was partly allowed. The said order/award was recalled as per order dated 07/06/2007 passed in M.A.no.90/2007 for the reasons mentioned therein, since the opposite party raised a ground that it had no notice of hearing of the complaint after it was taken from the sine-dine list. Matter was thereafter fixed for hearing on 14/09/2007 and then adjourned from time to time till today. Opposite party is remaining absent. Hence, this matter is heard accordingly.

We heard Adv.Shri N.Bharthan for the complainant. None for opposite party. Perused the record.

We perused the complaint and relevant papers along with affidavit of the complainant. The points arise for our considerations are as under:

Points Finding

1. Whether there is deficiency on the part of Opposite Yes

Party s alleged by the complainant?

2. What are the reliefs? As per Final order

REASONS:

The legal defence raised by the opposite party with regard to Relief Undertaking has no legs to stand. Consumer Protection Act, 1958 is a Central Act. This Commission in the case of Mr.Sanjeev Shashikant Rasaikar V/s. Lok Housing and Construction Ltd. reported in 2002 (4) All MR Journal, has held that in view of 1993 amendment to the Consumer Protection Act, 1986 being Central Act and a Special Statute for protecting consumer prevails over the State Act. We therefore hold that defence raised by the opposite party is not sustainable.

It is the grievance of the complainant that possession of the flat in question was not handed over to her. Opposite party vide their letter dated 02/11/1998 offered the complainant an alternative flat for higher rate in Evershine Nagar. But the complainant refused the proposal of the opposite party and asked for refund of money. However, opposite party refunded only Rs.1,47,000/- and failed to refund the balance amount as promised by its letter dated 23/12/1999. There is no dispute between the parties regarding booking of the flat, their dimension and agreed consideration. Further the opposite party agreed receipt of payment of consideration from the complainant. The facts clearly indicate that the construction has not taken place and the builder has not handed over the possession of the flat to the complainant. Opposite party had to complete the process of documentation as mandated by Maharashtra Ownership Flats Act, 1963. It is obligatory upon the builder under the said Act to execute proper agreement with the complainant. However, opposite party has failed to do so. In the present case, builder has not executed the agreement with the complainant and has not given possession of the Flat to the complainant. This omission amounts to deficiency in service on the part of opposite party. The complainant has paid Rs.3,87,820/- as part consideration to the opposite party and opposite party has refunded only Rs.1,47,000/- to the complainant. Therefore, the balance amount to be refunded to the complainant is Rs.2,40,820/-. Opposite party have agreed in their letter dated 23/12/2000 to pay interest @ 21% p.a. The opposite parties have to pay interest @21% p.a. This is the assurance made by them in writing. Therefore, complainant is entitled to get contractual rate of interest on Rs.2,40,820/- from 27/11/1998 till realisation of the amount by the complainant. In our opinion, opposite party shall also pay Rs. 10,000/- as compensation and Rs.5,000/- as cost of the proceedings to the complainant.

In the light of above discussion, we pass the following order:-

Order-:

1. Complaint is partly allowed.

2. Opposite party is allowed to refund to the complainant an amount of

Rs.2,40,820/- along with interest @21% p.a. from 27/11/1998 till its realisation.

3. Opposite party is directed to pay Rs.10,000/- as compensation for mental agony and inconvenience and Rs.5,000/- as cost of the proceeding to the complainant..

4. Rest of the claim stands rejected.

5. 45 days time is granted to the opposite party for compliance of this order.

6. Copies of the order herein be furnished to the parties.