Judgment:
Per Smt. S.P. Lale, Honble Member
1. This appeal filed by original O.P.no.2 in consumer complaint no.598/2006 is directed against the order dated 28/12/2007 passed by Additional District Consumer Forum, Thane, whereby Forum below directed O.P. to hand over possession of flat nos.11 and 12 on the first floor of the proposed building known as âSai Nagar and to execute Agreement/Conveyance in favour of the complainant and pay interest on Rs.8,64,000/- @ 8% p.a. from 24/8/1995 till date of order to the complainant. Forum below further directed O.P. to pay Rs.5000/- towards cost of the proceedings. Feeling aggrieved by the said order, O.P. has filed present appeal.
2. There is inordinate delay of 116 days in filing the appeal. No reason is given by the appellant for delay and as such, we find that appellant failed to give any satisfactory cause to condone the delay. Therefore, application for condonation of delay stands rejected. As and by way of abundant precaution, we heard the parties and examined this appeal on merit too.
3. Complainant agreed to purchase flat nos.11 and 12 on the first floor of the proposed building known as âSai Nagar admeasuring 1242 sq.ft. built up area for total consideration of Rs.8,94,240/- from the O.P.no.2. Accordingly O.P. issued allotment letter dated 6/9/1995 and confirmed booking of the aforesaid flat. According to complainant, despite paying entire consideration, O.P. did not enter into an Agreement for sale in favour of the complainant. It is alleged by the complainant that after continuous follow up with the O.P., O.P. had not executed Agreement for sale nor given possession of the said flat to the complainant. O.P.no.3 has issued Occupation certificate without confirmation or inspecting the site.
4. It is further alleged by the complainant that O.P. failed to hand over the possession of the flat till today even after accepting full amount of consideration and also failed to execute Agreement of sale in favour of the complainant. Therefore complainant filed consumer complaint before the Forum below for deficiency in service.
5. O.P. filed its written statement and denied the allegations made by the complainant. It admitted that they have received the amount of Rs.8,64,000/- towards booking of the flat. It pleaded that on 7/1/2004 O.P. handed over the possession of the flat to the complainant and complainant has signed on possession letter. O.P. is ready and willing to execute Agreement for Sale in favour of the complainant. On 12/6/2006 O.P.no.3 has also issued Occupation Certificate. Finally, they prayed for dismissal of the complaint.
6. After considering the documents and affidavits placed before it, Ld. District Consumer Forum allowed the complaint and passed impugned order.
7. Heard Mr.S.A.Bhalwal-Advocate for the appellant and Mr.U.B.Wavikar-Advocate for respondent/org.complainant.
8. Respondent had purchased flat bearing no.11 and 12, 1st floor in the proposed building Sai Nagar in the year 1995. Respondent paid consideration amount of Rs.8,64,000/- to the appellant. Appellant failed to execute Agreement for sale in favour of the respondent. As per section 4 of the Maharashtra Ownership Flats Act, 1963, builder/promoter before he accepts any sum of money as an advance or deposit, it shall not be more than 20% of the sale price he enters into an Agreement for sale. In the present case, appellant has failed to execute Agreement of sale in favour of the respondent, even after accepting large amount of consideration. Therefore this amounts to deficiency in service on the part of the appellant. Ld.Advocate for the appellant vehemently argued that respondent has taken possession of the flat on 7/1/2004 and filed consumer complaint on 2/12/2006. Therefore complaint of the respondent is hopelessly time barred as per section 24-A of the Consumer Protection Act, 1986. As per Section 7 of the Maharashtra Ownership Flats Act, 1963, if there is any dispute with regard to any defects in the building, a reasonable possible time granted to rectify to promoter or as regards amount of compensation payable in respect of such defects the limitation is prescribed is three years from the date of possession. However if also the possession has not been given to the flat purchaser, it is a continuous cause of action. Therefore complaint of the consumer is well within time. The appellant has not filed any documentary evidence with regard to possession of flat given to the respondent.
9. It is pertinent to note that respondent had paid entire consideration amount in the year 1995 and appellant has not executed Agreement for sale in favour of the respondent. Therefore appellant has failed to comply with the contractual obligation as well as statutory obligation in favour of the respondent. Therefore defence of the appellant is not acceptable. We are finding no merits in the appeal. We are inclined to dismiss the appeal. Order passed by the Forum below cannot be interfered when particularly we find the appeal is barred by limitation. In the result, we pass following order:-
Order:
1. Misc.application for condonation of delay stands rejected.
2. Appeal stands dismissed with no order as to costs.
3. Misc.application for stay stands disposed of.
4. Copies of the order be furnished to the parties.