ANIL BABURAO KHANDAGALE Vs. BHAGIRATH CONSTRUCTION

JUDGEMENT

(1.) This complaint is filed by Anil Khandagale against M/s Bhagirath Construction Co. alleging deficiency in die service of the firm and claiming compensation on account of the negligence in the service of the opposite party. Shortly stated the facts show that the complainant booked the flat with M/s Bhagirath Construction in their scheme under construction. In response to an advertisement published in the local newspaper, in about first week of May ,1987 Shirish Dupalliwar convinced the complainant showing him a sanctioned plan and also a copy of the order passed by the competent authority under the provisions of Urban Land Ceiling and Regulation Act dated 18-3-1986. The complainant was also shown the brochure of the scheme, and thereafter the complainant agreed to purchase the flat admeasuring 804 sq. ft. for a consideration of Rs.1,33,000/-. The complainant deposited Rs.15,000/- by a cheque with the opposite party No.1 on 6.5.87, towards the part payment of the flat. In turn the O. P. No.1 executed letter dated 7.5.87 informing the complainant about the allottment of flat bearing No. B-8 on 2nd floor in building No. B-2 located on Khasara No.24/4. The project was named "arohi". However, the agreement was to be executed later on after the payment of Rs, 20,000/- by complainant. Subsequently ,the complainant changed the allotment to flat No. B-8 to B-3 on the 1st floor in building No. B-3 on Khasara No.12/4 by a letter dated 1.6.1987. This arrangement was agreed by O. P. No.1. The O. P.1 by his letter dated 16.6.87 intimated the complainant that the construction work has already been commenced and to pay the 2nd instalment on or before the 25.6.1987. The complainant being the employee of the State Bank of India had applied for housing loan from his bank. It is the case of complainant that he again changed his mind and asked for the allotment of flat No. Khasara No.24/4, which request was also accepted by the O. P. No.1 by alloting him flat No. B-11 in apartment viz : "yamani" on Khasara No.24/4. The agreement was also executed between the parties on 31.8.88 when the complainant alleged to have made the payment of Rs.20,000/-. According to complainant no receipt was passed about the receipt of the same. Thereafter, a lot of corrspondence ensued between the parties and finally by the letter dated 12.9.93, the O. P.1 demanded from complainant Rs.1,20,000/- being the amount of consideration for the aforesaid flat. The complainant, therefore alleged that although the agreement provided the payment of balance consideration by instalments, the O. P.1 demanded the amount of Rs.1,20,000/- in lumpsum. Complainant has alleged the deficiency in the service of the O. P.1 for not completing the flat in time and not putting him in possession as per the terms of the agreement. The complainant also claims that the cancellation of allotment of flat by O. P.1 vide his communication dated 31.8.1991 be held as a deficiency in service and direct the O. P.1 to hand over the possession of flat in question The complainant also claimed the compensation of Rs, 25,000/- (twenty five thousand only ). The O. P.1 by a letter dated 21.8.91 cancelled the allotment of complainant's flat.

(2.) In response to the notice of this Commission the O. P.1 filed his written version and denied the allegations made in the complaint. However, the said written version being filed after the period of 30 days it was objected to by the complainant The complain-ant's complaint was fixed on 5.6.92 for the hearing with due intimation to O. P. , but O. P. remained absent and, therefore, we proceeded ex-parte and the complaint was fixed for final hearing on 6.6.92. On 6.6.92, the complainant was heard through Shri Pathak, Advocate and the opposite party appeared in person. After hearing the parties, the complaint was closed for orders. Subsquently the opposite party sent an affidavit intimating that he had refunded back the amount of Rs 1,21,501/- to complainant vide cheque drawn on Dena Bank Nagpur in favour of the complainant, the cheque was sent to the complainant explaining that the aforesaid amount was being sent to complainant towards the refund of the booking amount deducting 20% of the total agreed price, as per condition No.4 of agreement dated 31.8.1992. The complainant has also informed this Commission that after the cancellation of allotment of flat to complainant he has sold the said flat to one Shri Arvind kumar Pashine for consideration of Rs.1.75.000/- and also placed him in possession on 15.9.91. The agreement between the opposite party No.1 and said Pashine is dated 18.6.91 and is placed on record. After going through the allegations made in the complaint and after persual of various documents filed by both the parites on record and the affidavit of O. P. No.1, intimating the cancellation of allotment of complainant and allotment of same flat of Shri Arvind kumar Pashine (who is not a party in the present complaint) we find that numerous questions of facts and law are involved and are required to be decided after elaborate evidence. Apart from the breach of conditions of the agreement, alleged by the complainant ,there is also a third party interest which has been created by the O. P.1 by handing over the possession of the said flat to Mr. Pashine, who is not a party to this complaint. Moreover, we find that there is allegation made by the complainant that Rs.20,000/- has been paid by him with the O. P.1 for which no receipt has been passed. The situation is further aggravated as regards the certificate dated 9.9.88 filed by Architect which is claimed to be false. The complainant has also alleged that the area for construction is less than the one which is mentioned in the agreement. In view of the multipherious disputed facts and the third party interest being created we decline to adjudicate this complaint within our limited summary jurisdiction and direct the complainant to approach the Civil Court for the redressal of his grievances if so advised. Complainant directed to approach Civil Court.