Per Shri S.R. Khanzode – Hon’ble Presiding Judicial Member:

(1)          This appeal is directed against the order dated 09/07/2010 passed in Consumer Coplaint No.228/2004, Champaklal N. Jogi V/s.Sunit Enterprises & Anr. by District Consumer Disptues Redressal Forum, Addl. Mumbai Suburban.

(2)          Undisputed facts are that, Respondent/original Complainant agreed to purchase a Flat No.202 in ‘D’wing, Krisha Building No.2 for total consideration of Rs.17,00,000/-.  On 10.04.2010 the flat purchaser had paid part consideration of Rs.8,50,000/-. Thereafter, since possession could not be delivered, alleging deficiency in service on the part of the builder, flat purchaser had filed this consumer complaint, praying relief of compensation for not completing his part of contract and/or alternatively claiming refund of consideration paid along with interest.  Forum below awarded alternate relief directing refund of consideration along with interest @18% per annum. Feeling aggrieved thereby the Builder preferred this appeal.

(3)          We heard Ms.Rashmi Manne, Advocate, proxy for Mr.U.B. Wavikar, Advocate for the Appellant. 

(4)          In the instant case it may be seen that Municipal Corporation of Greater Mumbai had issued a notice under section 53(1) of Maharashtra Regional and Town  Planning Act, 1956 dated 26.12.2002 to the builder asking him to remove the unauthorized construction and to stop further construction work and if not, he would be liable for prosecution under the said Act.  It is not the case of the builder that he had complied to the construction.  Certainly,  it is not the case of the builder that he had obtained occupation certificate.  In fact said notice of the Corporation and for non-compliance thereof, no occupation certificate could be issued.  In this background, the transaction remained incomplete.  Builder cannot offer possession and also cannot obtain occupation certificate under the provisions of Maharashtra Ownership Flats Act.  In the circumstances, flat purchaser cannot be blamed as argued before us by the Appellants.  Forum below instead of granting possession of the flat granted alternate relief and considering the escalation of price charging interest @18% per annum cannot be faulted with.  Judicial discretion used by the Forum below granting alternate relief also cannot be faulted with.  Therefore, we find no reason to take different view than what has been taken by the Forum below.  We hold accordingly and pass the following order:

O  R  D  E  R

     (i)       Appeal stands dismissed in limine.

    (ii)       No order as to costs.