Per Mr.P.N.Kashalkar, Hon’ble Presiding Judicial Member 1. Heard Mr.S.B.More-Advocate for the appellant and Ms.Anita Mane -Advocate for the respondent. 2. This appeal is directed as against the order passed by the District Consumer Forum, Thane on 03/1/2009 in consumer complaint no.232/2007. By this order appellant has been directed to give possession of the flat in question. It has been further directed that if the flat in question has been already sold and or given in possession of third party, then amount of `7,31,000/- along with interest @ 9% p.a. from 25/3/2003 be paid and by way of damages `20,000/- are directed to be paid and `5000/- by way of cost. If the amount is not paid within period of 30 days penal interest @ 5% is to be paid. Therefore, original O.P. has filed this appeal taking exception to said order of District Consumer Forum. 3. It is an admitted position that there was an agreement in respect of the flat in between the appellant and respondent which was executed on 25/3/2003 and the amount of `7,31,000/- has been received by appellant. It is also admitted position that said flat has been sold by the appellant in December 2004 to third party and having noticed that such flat has been disposed of, immediately after getting knowledge of the said fact complaint has been lodged. Now in view of the fact that flat has been delivered to third party, complainant is only entitled to recover an amount of `7,31,000/- along with interest and amount of mental agony and the cost, etc. as directed by the District Consumer Forum. In the appeal memo itself it has been stated that appellant is ready and willing to pay an amount of `7,31,000/- i.e. principle amount. Now therefore challenge only in this appeal in respect of interest @ 9% p.a. and in respect of amount of `20,000/- awarded for mental agony. 4. In view of the admitted position that the flat should have been handed over to the respondent. Instead of handing over the flat, appellant has sold the flat to third party. Before doing that appellant should have settled the matter with the respondent and returned the amount, but instead of doing that he has sold the flat in question and went on making demand of the monies to the respondent. It is the respondent who discovered that the flat has been sold and, therefore, he had filed the complaint. Therefore, under these facts and circumstances as disclosed in the present matter, charging of interest @ 9% p.a. from 25/3/2003 is justified which requires no interference. 5. So far as amount of `20,000/- is concerned which is given by way of mental agony, it is to be noted that the flat in question has been sold in December 2004, but the complaint has been filed in June 2007. Amount was not returned immediately to the complainant/respondent. In order to show bonafide appellant should have deposited the amount in the District Consumer Forum, but he contested the matter in full swing and when he lost the matter he has shown his willingness to pay the same. Therefore, for mental agony order of `20,000/- is justified. Cost of `5000/- is also justified. These amounts to show further bonafides, ought to have been deposited in the District Consumer Disputes Redressal Forum immediately and voluntarily by the appellant/org.O.P. Therefore, imposition of penal interest is also justified. Thus, we are finding no substance in the appeal. Hence the order:- ORDER Appeal stands dismissed. No order as to costs. Copies of the order be furnished to the parties. |
