Judgment:
Per Shri S.R. Khanzode, Honble Presiding Judicial Member
Both these appeals arise out of order/award dated 15/03/2007 passed in consumer complaint No.96/2005 Mr.Sushil Mahesh alias Maheshwari and Anr. V/s. M/s.Megha Property Developers Ltd. and Ors. by Addl. District Consumer Disputes Redressal Forum Thane (âForum below in short).
Undisputed facts are that respondent/complainant No.1 Mr.Sushil Mahesh alias Maheshwari (hereinafter referred as âthe complainant) agreed to purchase three shops from the scheme developed and constructed by appellant/org. O.P.No.1 M/s.Megha Property Developers Ltd. (hereinafter referred as âdevelopers). Disputed shop No.10 is one of these three shops. Transaction is witnessed by allotment letter dated 11/09/1993.
According to the complainants, out of total consideration agreed upon for the disputed shop No.10 admeasuring 471 sq.ft. he had paid Rs.4,64,200/- by cheque and Rs.2,35,000/- by cash. Subsequently, a dispute arose and original complainant No.2/Renuka Sushil Maheshwari, who is daughter of complainant No.1/Sushil Mahesh alias Maheshwari filed a Regular Civil Suit bearing No.203/2002 for declaration and injunction in the court of Civil Judge (JD), CBD, Navi Mumbai. In the said suit, developer filed written statement saying that disputed shop No.10 was already transferred to org. O.P.No.6 Dr.Jaswant Chandra (He is not made a party to appeal) as per agreement registered on 05/12/1998. Coming to know about this said suit was withdrawn and thereafter, this consumer complaint was filed. It is alleged by the complainant-s that allotment letter was in the name of complainant No.1/Sushil Mahesh. It is also alleged that amount of consideration was paid from the account of complainant No.2/Renuka Sushi Maheshwari and complainant No.1 also instructed the developer accordingly for transaction to be concluded in the name of complainant No.2/Runuka Maheshwari. Forum below considering the fact that disputed shop was already transferred, decreed the claim allowing refund of consideration i.e. Rs.4,64,200/- along with interest @ 9% p.a. from the date of respective payments (mentioned in the body of impugned order) and also awarded Rs.50,000/- as compensation and Rs.10,000/- as costs. Feeling aggrieved thereby, opponent No.1/Developer filed First Appeal No.600/2007 while the original complainants preferred First Appeal No.581/2007.
We heard Mr.A.V. Patwardhan, Advocate for the developer and Mr.Ramchandnani, Advocate for the complainants. Perused the record.
In the instant case, the developer tried to raise contention about original complainant No.2/Renuka Maheshwari and about suppression of fact of death of complainant No.1. But, said issue is little irrelevant since agreement of disputed shop No.10 was with complainant No.1/Sushil Mahesh and allotment letter was accordingly issued in his name only. Payment of Rs.4,64,200/- witnessed by receipt is not in dispute. According to the developer, allotment of disputed shop No.10 in favour of complainant No.1 stood cancelled as per his own request and complainant No.1/Sushil Mahesh was accordingly informed by letter dated 22/02/1997. Fact of transferring said shop was also intimated to complainant No.1/Sushil Mahesh by subsequent letter dated 05/12/1997 and he was also informed that consideration paid and received towards disputed shop No.10 was being adjusted towards balance consideration of other shops Nos.8 and 12. Complainant No.1 disputed having received any of above referred communications by filing affidavit by way of rejoinder. Said affidavit is dated 06/09/2005. In these backgrounds, fact that except producing xerox copies of communications referred above, developer failed to adduce any evidence to prove that above referred communications were actually sent to and received by complainant No.1/Sushil Mahesh. This fact is taken into consideration by the Forum below. Under the circumstances, it cannot be held that there is cancellation of agreement in respect of disputed shop No.10 and that amount received towards consideration in respect of said shop was already refunded/adjusted by the developer. Therefore, Forum below rightly held accordingly and directed to refund the consideration paid to and received by developer against disputed shop No.10. Further, amount of compensation of Rs.50,000/- awarded is just and proper and cannot be faulted so as the cost of Rs.10,000/-. Award of penal interest decreed in the stipulated time is also reasonable.
As far as Appeal No.581/2007 filed by the complainants is concerned, it is their grievance that Forum below failed to allow payment of Rs.2,35,000/- which was paid in cash by them as part of total cost of the shop. However, this payment is not established by any reliable and convincing evidence. The other grievance of the complainants is that Forum below failed to allow loss of income from the commercial premises. Such grievance would not survive in view of the fact that booking of shop No.10 was cancelled at the instance of the complainant No.1, himself, supra.
For the reasons stated above, we find no reason to disturb the impugned order/award. We hold accordingly and pass the following order:-
Order:
1. Appeal No.600/2007 and Appeal No.581/2007 stand dismissed.
2. Both the parties to bear their respective costs.
3. Copies of the order be furnished to the parties.