Judgment:
Per Mr. S.R. Khanzode, Honble Presiding Judicial Member:
1. This appeal arises out of order/award dated 03/01/2009 passed in consumer complaint no.03/2004, Rainbow Realtors V/s. Mr.Solomon Esau David by District Forum, Thane (Forum below in short). Respondent/org.complainant (hereinafter referred as complainant) has filed a consumer complaint that appellant/org.opp.party (hereinafter referred as developer) agreed to sale flat no.701 admeasuring 750 sq.ft. in a building known as Daffodil at Queens Park Complex as more particularly described in the complaint para 1, for a consideration of Rs.5 Lakhs and accordingly received consideration duly acknowledged by receipt dated 18/07/1994. Consequent to said agreement dated 04/08/1994 was also executed. The possession was not delivered as promised in spite of reminders dated 07/01/1997, 15/07/1997, 20/01/1998, 09/07/1998, 12/02/1999, 04/09/1999, 10/03/2000, 16/11/2000, 13/06/2001 and 22/12/2001. Therefore, by filing consumer complaint on 30/12/2002 complainant claimed possession of the flat and alternatively refund of consideration along with interest @21% p.a. with effect from 18/07/1994. In addition to it complainant also claimed compensation of Rs.2 lakhs for reduced in area from 750 sq.ft. to 590 sq.ft.
2. The developer opposed the complaint as per written statement dated 19/03/2004. He had disputed the transaction and denied that he agreed to sell the flat as contended by the complainant. It was pure and simple loan transaction and Rs. 5 Lakhs were advanced by way of loan. He even made payment from time to time towards interest, which carries interest @15% p.a. In all, he had paid Rs.2,40,000/- by way of diverse payments to the complainant. He also mentions another transaction with the complainant, whereby a row house was agreed to be purchased by the complainant for his minor daughter. The developer had to receive Rs.2,70,000/- against the said transaction. With this they asked to dismiss the complaint.
3. Rejoinder was filed by the complainant to the written statement denying the averments made in the written statement and reaffirming the case pleaded as per original complaint.
4. Forum below upholding the contention of the complainant granted the relief in toto as prayed and feeling aggrieved thereby, the developer has preferred this appeal.
5. We heard Adv.Smt.Anita Marathe for appellant and Adv.Ms.Sushma Pawar @ Adv.Shri Kisan Sukre for respondent. Perused the record.
6. We prefer not to refer to the previous proceedings taken up to the level of this Commission, which were exhaustively referred by Forum below in the impugned order, since they are not relevant except for a fact on record. We go straightway to decide as to whether it is a consumer complaint, as to whether the complainant has established his claim, and the correctness of the relief granted as per impugned order.
7. The developer tried to dispute the nature of the transaction branding it as a mere financial transaction of loan. However, prima facie, the developer failed to establish the same. The developer could have produced proof of payment of interest from time to time and to which he made a reference in his pleadings. In this background, the contention of the complainant that it was a pure and simple transaction of purchase of flat and he had paid full price of Rs.5 Lakhs, as agreed, is to be accepted since it find corroboration not only from the complaint but also from the document, such as receipt dated 18/07/1994. Complainant also relied upon an Agreement of Sale though unregistered, executed subsequently on dated 04/08/1994. This Agreement pertains to flat no.A-202 and not flat no.701, which is the subject matter of this consumer complaint. This agreement is relied upon by the complainant to support the transaction in question. This anomaly of description of property is not explained by the complainant.
8. Admittedly, the possession of the flat agreed upon as per receipt dated 18/07/1994 and as pleaded by the complainant in the consumer complaint, is not delivered to him. Therefore, it being a continuous cause of action, the same is not time barred.
9. In absence of any evidence and in view of the established facts of the transactions, we find Forum below rightly directed to handover the possession of the flat or in the alternative to refund the consideration along with interest. Rate of interest charged, is neither excessive nor unreasonable and it has been granted rightly by the Forum below. Therefore, it needs no interference in appeal by us.
10. As far as relief granted for grant of compensation of Rs.2 Lakhs is concerned, we find ourselves not in agreement with the Forum below. As earlier pointed out, said relief is claimed merely on the basis of the alleged agreement dated 04/08/1994. However, the said claim is erroneous since it is based upon area of different flat bearing no. A- 202 and therefore, what has been mentioned therein with reference of the flat is quite irrelevant as far as subject matter of the dispute before us i.e. flat no. 701. Besides this, the builder is directed to refund the consideration with interest as per alternative relief claimed and hence, we find impugned order erroneous as far as grant of compensation of Rs.2 Lakhs towards alleged reduction of area of flat. We hold accordingly, and feel it proper to disturb the impugned order to that extent.
11. Rs.15,000/- are granted as costs. Looking to the over all circumstances, we find no reason to disturb the same. For the reasons stated above, we hold accordingly and pass the following order:-
Order:
1. Appeal is partly allowed. Impugned order dated 03/01/2009 stands modified.
Operative part of the impugned order per para (3) awarding compensation of Rs.2 Lakhs towards reduction of flat area, is set aside.
2. Rest of the order stands confirmed.
3. No order as to costs.
4. Copies of the order herein be furnished to the parties.