Per Mrs. S.P. Lale, Honble Member
The issues involved in both these appeals are one and the same. Builder is also common and hence, we are proceeding to dispose of both these appeals by this common order.
Complainant filed consumer complaint No.390/2007 and 398/2007 against O.P./builder before District Consumer Forum Thane for not giving possession of two flats to the complainant. According to the complainant he had purchased flat bearing No.401 and 402 on 4th floor in âA wing in the building known as âNG Vikas and each flat admeasuring 379.88 sq.ft. in area. Cost of the flat No.401 was Rs.8,24,600/-. Accordingly, Agreement for Sale was registered on 25/04/20096. As per complainant, he paid Rs.5,50,000/- out of Rs.8,24,600/- to the O.P. as part consideration. Complainant further submits he approached O.P. and requested for possession of the flat after receipts of balance consideration amount. However, O.P. failed to hand over possession of the flat to the complainant. In case of flat No.402 complainant paid entire amount of Rs.8,24,600/- to the O.P. in full and final settlement of the price. In spite of having accepted full consideration amount O.P. failed to hand over possession of flat No.402 to the complainant. Therefore, separate consumer complaints are filed by both the complainants alleging deficiency in service on the part of the builder.
O.P. filed its written statement and denied allegations of the complainant. It pleaded that the cost of the flat No.401 was fixed at Rs.8,24,600/- and the cost of flat No.402 was Rs.7,38,600/- and Rs.86,000/- was fixed by O.P. for providing extra amenities. Out of Rs.86,000/- complainant paid only Rs.46,403/- for the extra amenities and failed to pay balance amount of Rs.46,403/- to the O.P. O.P. further pleaded that the complainant has not paid entire amount of the flat. Therefore, possession of the flat was not handed over to the complainant. Complainant was facing financial crisis and had not paid balance amount to the O.P. Therefore, there was no deficiency in service on the part of O.P. and finally, prayed for dismissal of complaint.
After considering documents and affidavits placed before it, Learned District Consumer Forum partly allowed both the complaints and directed O.P. to refund amount of Rs.5,50,500/- together with interest @ 10% p.a. from 25/04/2006. It further directed to pay Rs.7,000/- towards cost and Rs.25,000/- for mental agony in case of flat No.401 in Complaint No.398/2007. In the case of flat No.402 in Complaint No.390/2007, Forum below directed the O.P. to refund amount of Rs.8,24,600/- together with interest @ 10% p.a. from 05/05/2006. Forum below further directed to pay Rs.10,000/- towards cost and Rs.25,000/- for mental agony.
We heard Mr. Nagaraj Hoskeri, Advocate for the appellant/org. complainant and Mr. Manoj Mhatre, Advocate for the respondent/org. O.P.
Perused the record and memo of appeal and we are finding that the order passed by the Forum below in each complaint is erroneous. Appellant has purchased two flats from respondent and paid total amount of consideration of Rs.8,24,600/- for flat No.402 and agreed to pay balance amount of consideration in case of flat No.401. However, O.P. failed to hand over possession of the flat to the complainant. Forum below awarded refund of consideration amount along with interest @ 10% p.a. However, appellant has filed present appeals for possession of both the flats as Forum below has awarded only refund of the amount.
We perused copy of complaint, wherein appellant has prayed for possession of both the flats namely flat Nos.401 and 402, âA wing and ready to pay balance amount of consideration of the flat No.401. The real estate prices have been increased tremendously and the complainant/appellant herein will not be able to purchase flat at the same rate, what was prevailing in the year 2006. Therefore, by allowing both these appeals, we direct the respondent/org. O.P. to hand over possession of the flats to the appellant after accepting the balance amount in case of flat No.401. In the result, we pass the following order:-
Order:-
1. Both appeals are allowed.
2. Clause Nos.2and3 of the operative part of the order in Complaint No.390/2007 regarding refund of consideration amount are substituted as under:-
âRespondent/org. O.P. is directed to hand over possession of the flat No. 402 on 4th floor, âA wing in the building known as âNG Vikas admeasuring 379.88 sq.ft. carpet area to the appellant.â
3. Clause Nos.2and3 of the operative part of the order in Complaint No.398/2007 regarding refund of consideration amount are substituted as under:-
âRespondent/org. O.P. is directed to hand over possession of the flat No.401 on 4th floor, âA wing in the building known as âNG Vikas admeasuring 379.88 sq.ft. carpet area to the appellant after accepting balance amount of consideration.â
4. Rest of order stands confirmed.
5. In the given circumstances, both parties shall bear their own costs.
6. Misc. Appl. Nos.771 and 772/2009 stand disposed of as infructuous.
7. Copies of the order be furnished to the parties.