1.       These two cross First Appeals, under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”), arise out of the order, dated 24.09.2010, passed by the Maharashtra State Consumer Disputes Redressal Commission at Mumbai (for short “the State Commission”) in Consumer Complaint No. 267 of 2002.  By the impugned order, while partly allowing the Complaint, preferred by the Appellants in First Appeal No. 95 of 2011, alleging deficiency in service on the part of the Opposite Parties, the Appellants in First Appeal No. 86 of 2012, in not: completing the construction; delivering the possession of the flat booked by them; and executing the sale deed in respect of the subject flat, the State Commission has directed the Opposite Parties to pay a sum of ₹3,28,852/- to the Complainants, along with interest @ 9% p.a. from the date of the Complaint, i.e. 17.08.2002, till realization, after adjusting  an amount of ₹2,42,137/- already paid to the Complainants on 29.12.2008, as also the litigation expenses, quantified at ₹10,000/-.

2.       Dissatisfied with the impugned order, both the parties have filed these Appeals.  While First Appeal No. 95 of 2011 has been filed by the Complainants for enhancement of the compensation awarded by the State Commission, First Appeal No. 86 of 2012 has been filed by the Opposite Parties for setting aside the impugned order itself.

3.       On 10.09.1993, the Complainants had booked a flat in the building, christened as “Meenakshi Building”, to be constructed by the Opposite Parties at Nerul, Navi Mumbai.  In terms of the allotment letter dated 13.12.1993, the Complainants had paid to the Opposite Parties part-consideration of ₹3,82,770/-, constituting 86% of the total sale consideration, from time to time.  For the said purpose, Complainant No.1 had withdrawn a sum of ₹1,10,000/- from his provident fund account.  The Complainants claim to have also paid sums of ₹22,000/- and ₹3,000/- (the latter being cost of the agreement) but receipts were not issued by them.  By a new allotment letter dated 07.09.1998, the Opposite Parties superseded their earlier allotment letter and unilaterally increased the area/price of the flat.  Despite receiving the stamp duty from the Complainants, the Opposite Parties did not execute the sale deed.  Requests made by the Complainants in this behalf to the Opposite Parties vide their letters, written between 28.08.1998 and 12.04.2002, did not evoke any positive response. On the contrary, the say of the Complainants was that the construction in the project was not being carried out in accordance with what was promised to them in terms of the demand letters; the possession of the flat, which was to be handed over on or before 30.09.1997, was not handed over, with the result that they are living in a rented accommodation since 01.06.2000; as there was no sign of possession being delivered, they applied for withdrawal of the stamp paper; and also lodged a complaint with the local Police on 07.06.2002.  In the meanwhile, the Opposite Parties continued issuing letters to the Complainants, threatening cancellation of the booked flat, if the amount demanded was not paid.  According to the Complainants, since the Opposite Parties had not executed the agreement, they were not able to raise a loan and to make further payment to the Opposite Parties.  The Complainants’ willingness to pay the balance amount, subject to the signing of the sale agreement by the Opposite Parties and assurance of the possession being delivered at the earliest, did not yield any result.  Ultimately, when the booked flat was cancelled by the Opposite Parties, vide their letter dated 03.05.2002 the Complainants sought for refund of the amount(s) paid by them, to which again there was no response from the side of the Opposite Parties. In the said background, alleging deficiency in service/negligence on the part of the Opposite Parties on the aforesaid counts, the afore-noted Complaint came to be filed before the State Commission, wherein the Complainants had prayed for the following reliefs:

“15.    The Complainants therefore submit that the Hon’ble CDRC may be pleased to direct the Opponents to:

a)      To direct the Opponents to sign the agreement and hand over the possession of the flat to the Complainant:

OR

          Refund the amount of Rs.3,82,770/- to the Complainant along with 24% interest p.a. from the dates of respective payments till the dates of realization.

AND

b)      To pay an amount of Rs.1,10,000/- incurred by the Complainants as rent along with an 24% interest and on the amount of Rs.50,000/- kept as deposit 24% interest from the date of the respective payments till realization; and

c)       Pay Compensation of Rs.5,00,000/- to the Complainants for mental and physical torture; and

d)      Pay Rs.30,000/- to the Complainants towards the costs of this Complaint.

e)      Any other relief, which the Hon’ble Commission may deem fit under the circumstances.”    

4.       Upon notice, the Opposite Parties contested the Complaint.  In their Written Version, while admitting booking of the flat by the Complainants, it was pleaded on their behalf that the Complainants were defaulters, inasmuch as despite several demand letters, written between 14.08.1998 and 06.05.1999, they did not pay the amounts demanded and, therefore, the allotment was cancelled; at the request of the Complainants, the cancellation was revoked; the exercise of cancellation and revocation got repeated three times, as on every occasion there was failure on the part of the Complainants in making payment of the balance dues, amounting to ₹1,38,424/-, demanded vide letter dated 09.10.2001; by the said communication, they were also informed that the flat was ready for delivery.  However, there being no response from the side of the Complainants, the allotment was finally cancelled on 18.01.2002.              

5.       On evaluation of the evidence adduced by the parties before it, the State Commission, as noted above, has partly allowed the Complaint and issued the aforesaid directions to the Opposite Parties, inter alia, observing thus:

“Complainants claimed to have paid over ₹3,82,770/-.  This amount is disputed.  Certain cheques alleged to have been dishonoured and certain payments were not at all accepted.  However, considering the fact that in one of the last notice or demand letter, wherein it was also informed that the flat was ready for possession i.e. letter dated 09/10/2001, the builder has demanded ₹1,38,424/- as an outstanding amount.  Breakout of this amount was also given in the said letter.  In the said letter, amount received was shown as 3,57,250/-.  On verification, total amount towards booking claimed to have been received was ₹3,28,852/-.  Some cheques claimed to have been dishonoured but, there is no proof thereof.  Therefore, we can safely accept amount of ₹3,28,852/- as the one received by the builder from the complainants and builder is under obligation to refund the same to the complainants since they could not deliver agreed flat to the complainants.  Considering the fact that the amount was not tendered to the complainants along with cancellation letter and that amount remained locked with the builder, we find it just and proper to award interest @ 9% p.a. over said amount to the complainants.  Of course, amount of ₹2,42,137/- paid and received by the complainants from the builder on 29/12/2008 need to be adjusted from the amount payable as aforesaid.  It is also alleged that this amount of ₹2,42,137/- was initially tendered on 11/05/2002, but was not accepted by the complainants.  However, there is no proof thereof.

By way of compensation, complainants claimed that similar alternate flat or monetary compensation to enable them to purchase a similar area flat in the same locality at current market price.  We find, in the background of the circumstances of this particular case, where the complainants are to be blamed equally for not honouring the commitment and paying all the consideration and to give a response to the builder once they were informed about the fact that the flat was ready for possession and could be delivered to them on payment of the dues/arrears; they are not entitled to any such compensation by way of alternate relief.  Similarly, they failed to justify their entitlement for compensation of ₹5 Lakhs as per amended prayer.  In the given circumstances, we also find that it would be proper to award ₹10,000/- as cost to the complainants since, according to us, it would meet the ends of justice. …”

6.       Hence, the present cross Appeals.                       

7.       Having heard Learned Counsel for the parties and perused the documents on record, I am in complete agreement with the State Commission that there were defaults on the part of both the sides, inasmuch as there was delay in the completion of the project in question by the Opposite Parties and, at the same time, the Complainants did not pay the balance amount due from them to the Developer, on the ground that because of failure on the part of the Opposite Parties to execute the agreement to sell, they were unable to raise further loan from the Bank.  It is true that on account of non-payment of the amounts demanded, the booking of the flat was cancelled and restored on more than one occasion but the fact remains that before receiving request from the Complainants, vide their letter dated 03.05.2002, for refund of the amount paid by them towards the cost of the flat, the subject flat had already been sold by the Opposite Parties on 12.04.2002 and, therefore, they should have refunded the entire amount received from the Complainants.  There is no material on record to show that on cancellation of the booking on account of non-payment of the amounts demanded by them, the Opposite Parties had forfeited the deposited amounts, probably under the belief that the balance amount would be paid by the Complainants.  Having failed to do so, the Opposite Parties ought to have refunded the entire amount received from the Complainants, more so, when it was not their case that they had suffered any loss on the sale of the flat on 12.04.2002 to one Mrs. D’ Silva.  Under the given circumstances, I am of the view that the State Commission has not committed any illegality in coming to the conclusion that there was deficiency in service on the part of the Opposite Parties in not refunding the full amount received by them from the Complainants.  In this view of the matter, the Appeal, preferred by the Opposite Parties deserves to be dismissed.  It is ordered accordingly.

8.       Having arrived at the said conclusion, the question surviving for consideration is whether the Complainants are entitled to any further relief in their Appeal.  In my view, having regard to the fact that the Opposite Parties had delayed the refund of the entire amount received from the Complainants for a long time, and refunded the major portion of the amounts received only on 29.12.2008, the rate of interest awarded by the State Commission @ 9% p.a. deserves to be enhanced to 12% p.a.  Consequently, the Appeal, filed by the Complainants, is partly allowed to the extent that they will be entitled to interest @ 12% on ₹3,23,280/- from the date of each deposit till 29.12.2008 and on the balance amount of ₹81,143/- at the same rate from 29.12.2008 till the date of actual payment.

9.       In the final result, First Appeal No. 95 of 2011 is partly allowed and First Appeal No. 86 of 2012 is dismissed, with no order as to costs.