Judgment:
[1] Appellant No.1 in person is present. Respondent is absent. Respondent is duly served with a notice issued by this Commission. There is a report to that effect downloaded from the website of postal department, namely â âIndia Post and, therefore, service of notice to the Respondent is declared as complete under Section 28-A of the Consumer Protection Act, 1986.
[2]Â Heard the Appellant No.1. Perused the record.
[3]Â This appeal filed by the Appellants/Complainants is directed as against an order dated 13/4/2012 passed by the District Forum, Mumbai Suburban District in Consumer Complaint No.105 of 2009. By the said order, the District Forum has partly allowed the complaint and directed the Respondent/Opponent to refund to the Appellants/Complainants an amount of Rs.50,000/- together with interest thereon @ 12% p.a., with effect from 12/5/2008 besides costs of Rs.5,000/-. Feeling aggrieved and dissatisfied with the order, the Appellants/Complainants have preferred this appeal. This appeal was admitted by the State Commission on 4/7/2012 and a notice after admission was directed to be issued to the Respondent. Accordingly, notice was dispatched to the Respondent on 13/7/2012 and the notice was kept returnable on 16/8/2012. However, the envelope which was sent by post to the Respondent was not received back. Similarly, the postal acknowledgement receipt which in normal course should have been received by the State Commission was also not received. Therefore, the State Commissions officers tracked the record on the website of postal department, namely â âIndia Post and obtained information in respect of Postal Article No.RM095360491IN namely â the postal communication of the notice of this appeal which was sent to the Respondent. It is revealed from that the said envelope sent by post was delivered by postal authorities to the Respondent on 20/7/2012. Said report obtained from the website is part of record of the State Commission. Inspite of such service of notice the Respondent has not appeared and, therefore, there is no other alternative but to proceed with the hearing of the appeal in absence of the Respondent.
[4]Â The Appellants herein are the original Complainants while the Respondent herein is the original Opponent. The Appellants/Complainants had booked a flat with the Respondent/Opponent and accordingly, an agreement was executed on 20/12/1997 in respect of a flat bearing No.302, situated on the third floor of âA Wing in the building known as âMercury to be constructed by the Respondent/Opponent. At the time of registration of the said document the Appellants/Complainants paid to the Respondent/Opponent an amount of Rs.25,000/-. Total consideration in respect of the said flat was agreed at Rs.3,16,250/-. An amount of Rs.25,000/- was further paid on 11/2/1998 by cheque bearing No.213766 dated 10/2/1998 drawn on Abhyudaya Co-operative Bank Ltd. Then, there is another payment of Rs.50,000/- made the Respondent by a cheque drawn in favour of Siddhivinayak Builders and the amount towards the said cheque was deducted from the bank account of the Appellants/Complainants on 18/10/2002. Thus, what we find is that the Appellants/Complainants have made a total payment of Rs.1,00,000/- to the Respondent/Opponent. As against that the District Forum concluded that the Appellants/Complainants have paid only an amount of Rs.50,000/- to the Respondent/Opponent. Such a finding recorded by the District Forum is erroneous and the same is hereby set aside.
[5]Â The District Forum has further observed that the Appellants/Complainants have failed to make the payment as per the payment schedule as stated in the agreement. However, said payment schedule contemplates payment at each stage of construction, namely â at the stage of documentation, plinth, first slab onwards up to eighth slab. What is important to be considered that slab-wise payment was to be made by the Appellants/Complainants after particular stage of construction was completed and demand notices were required to be issued by the Respondent/Opponent calling upon the Appellants/Complainants to make the payments. However, such demands were not made and till today the building is not completed. As per the agreement, the Respondent/Opponent agreed to deliver the possession of the flat to the Appellants/Complainants on or before 28/2/1999. That construction schedule has not been followed by the Respondent/Opponent and possession of the flat on the specified date has not been given by the Respondent/Opponent to the Appellants/Complainants. Therefore, when the construction schedule has not been followed and there are no demands made by the Respondent/Opponent as per the said schedule then, it is erroneous on the part of the District Forum to arrive at a conclusion that the Appellants/Complainants have failed to make payment as per the schedule. Thus, the lapse which has been noted on the part of the Appellants/Complainants by the District Forum is not sustainable in the facts and circumstances of the case and because of this the District Forum has further come to a conclusion that the Appellants/Complainants are not entitled to get the flat. Findings recorded by the District Forum are bad and we quash and set aside those findings. What is important that in these circumstances the District Forum ought to have passed an order directing the Respondent/Opponent to deliver the possession of the flat. However, instead of that after having recorded wrong findings, the District Forum has directed the Respondent/Opponent to refund to the Appellants/Complainants an amount of Rs.50,000/- together with interest thereon. In fact, in the Mumbai City there is a dearth of residential premises. Respondent/Opponent gets benefit of the property appreciation from the date of registration of the document till this date. If the flat in question is not allotted to the Appellants/Complainant, the Respondent/Opponent can sell the flat in the open market at the present marketable prices and, therefore, if we consider the equities and hardships, balance is in favour of the Appellants/Complainants and not in favour of the Respondent/Opponent. Consumer Forum has to keep in mind that the Consumer Protection Act, 1986 is a benevolent legislation enacted to protect the rights of the consumers and keeping these principles in mind the District Forum ought to have passed an order. Hence, the order passed by the District Forum as regards refund of amount, in above-referred circumstances, is quashed and set aside. We find that the Appellants/Complainants are entitled to possession of flat in question. We hold accordingly and pass the following order:-
ORDER
Appeal is allowed.
Impugned order dated 13th April, 2012 passed by the District Forum, Mumbai Suburban District in Consumer Complaint No.105 of 2009 is hereby quashed and set aside and the same is modified and substituted as follows:-
The complaint is partly allowed.
Upon deducting an amount of Rs.1,00,000/- from the total agreed consideration of Rs.3,16,250/-, the Appellants/Complainants are directed to pay the balance consideration amount of Rs.2,16,250/- to the Respondent/Opponent within a period of two months from today. It is further directed that if the amount is not accepted by the Respondent/Opponent then, in such a case, said amount shall be deposited with the State Commission by a demand draft within a period of fifteen days thereafter.
Respondent/Opponent is hereby directed to hand-over to the Appellants/Complainants vacant and peaceful possession of a flat bearing No.302 in Wing âA on the third floor in the building known as âMercury as per agreement dated 20th December, 1997, within a month therefrom.
Respondent/Opponent was under an obligation to the deliver the possession of the said flat to the Appellants/Complainants on or before 28th February, 1999. Therefore, the Respondent/Opponent is further directed to pay compensation of Rs.2,00,000/- to the Complainants for non-delivery of the said flat from 28th February, 1999 till this date and it is further directed that on failure to hand-over the possession as aforesaid, till the possession of the said flat is handed over the Appellants/Complainants, the Respondent/Opponent shall pay to the Appellants/Complainant compensation @ Rs.2,000/- per month.
The Respondent/Opponent shall bear its own costs and pay costs of Rs.20,000/- to the Appellants/Complainants.