Vastu Shakti Engineers and Builders Pvt. Ltd., Navi Mumbai Vs. Shri Sambhaji Baburao Bhosale, Maharashtra Nagar, Mumbai and Another - Court Judgment

Per Shri S.R. Khanzode, Honble Presiding Judicial Member

This appeal arises out of order/award dated 18/10/2008 passed in consumer complaint No.44/2008 Shri Sambhaji Baburao Bhosale V/s. Vastu Shakti Engineers and Builders Pvt. Ltd. by Addl. District Consumer Forum Thane (‘Forum below in short).

Admittedly, respondent/complainant- Shri Sambhaji Baburao Bhosale (hereinafter referred as ‘complainant) agreed to purchase a flat bearing No.A-11 situated on first floor of A Wing of the building of Vijay Nagar CHS Ltd. for admeasuring 350 sq.ft. for total consideration of Rs.3,59,000/-. He had paid the entire consideration i.e. Rs.3 Lakhs paid through HDFC Bank and Rs.59,000/- paid by him from time to time. O.P. failed to deliver possession. Therefore, alleging deficiency in service on that count, this consumer complaint is filed. Initially, refund of consideration with interest is claimed and later on, as per amendment, possession of the flat is claimed as a principal relief.

Forum below by the impugned order/award allowed the complaint and directed the appellant/O.P.No.1 and its Directors/respondent Nos.2and3 to hand over the possession of the flat in question and further directed to pay interest by way of compensation over the amount of consideration paid and also awarded Rs.8,000/- as compensation towards mental torture and Rs.2,000/- as cost of the proceedings. Feeling aggrieved thereby, org. O.P.Nos.1to3 preferred this appeal.

We heard Mr.Nagraj Hoskeri, Advocate for the appellants/org. O.P.Nos.1to3 and Mr.Manoj Mhatre, Advocate for the respondent No.1/org. complainant. Perused the record.

Complainant alleged that he had paid entire consideration of Rs.3,59,000/-. He finds support to his such contention from the account statement of the Bank, Annexcure-C-3 and receipt issued by O.P.No.1 dated 29/10/1999 acknowledging total receipt of payment of Rs.59,000/-. Besides bare denial, there is no worthy evidence adduced on behalf of O.P.Nos.2and3 to dislodge the fact of payment of entire consideration. While filing additional written statement, O.P.No.1to3 had produced one handwritten statement of account showing that only Rs.2,20,500/- were received from the complainant and Rs.3,14,560/- were due from the complainant. They failed to substantiate the same. Correctness of the same is very much doubted considering the proof of payment filed by the complainant and to which reference is made earlier.

Since, entire payment was received by O.P.Nos.1to3, complainant is entitled to the possession of the flat. At the time of argument of this appeal, appellants tried to raise an issue of impropriety in allowing the application incorporating prayer for possession. This is a stale issue, which was already settled. The order allowing the amendment of Forum below was challenged before this Commission and the said Revision Petition was withdrawn and as such dismissed. Thus, the order of the Forum below allowing the amendment being final, cannot be challenged now at the time of this appeal.

Considering the above referred facts, we find no fault with the impugned order/award. Hence, we hold accordingly and pass the following order:-

Order:

1. Appeal stands dismissed with cost of Rs.1,000/-.

2. Misc. Appl. No.2204/2008, which is for stay stands disposed of as infructuous.

3. Copies of the order be furnished to the parties.