Per Shri P.N. Kashalkar – Hon’ble Presiding Judicial Member: (1) This is an appeal filed by MHADA, the original Opponent against the judgement and award passed by the District Forum, Mumbai Suburban in Consumer Complaint No.289/2009 decided on 20th September, 2010. By allowing the complaint filed by the Complainant, the District Forum directed Opponent – MHADA to pay to the Complainant a sum of `2,27,685/- with interest @9% per annum from 15th April, 2009 till the realization of the entire amount towards excess amount collected by MHADA while allotting the Flat No.301, in Building No.38, ‘A’ Wing, Shubhlabh Co-operative Housing Society, Borivali (West), Mumbai. The District Forum also imposed cost of `5,000/- towards costs of the proceeding and in case of delayed payment after 60 days, the District Forum directed MHADA to pay `100/- per day for such delayed period exceeding 60 days from the date of order. As such, MHADA has filed this appeal. (2) The complaint before the District Forum was pertaining to the area of the flat allotted to the Complainant. The flat was allotted to the Complainant on the basis of super built up area. According to MHADA the flat allotted to the Complainant was in fact 604.61 sq.ft. and on the basis of that area the amount was recovered from the Complainant before allotment of the flat. However, after having possession of the flat Complainant found that the area of the flat was far lesser than mentioned by MHADA in its allotment letter dated 29.11.2006. Complainant therefore filed consumer complaint and claimed refund of certain amount because, according to him the area of the flat was 536.06 sq.ft. In the course of trial Court Commissioner was appointed and Court Commissioner found that area of the flat was 473 sq.ft. The District forum therefore allowed the complaint partly and directed refund of amount by MHADA to the Complainant. Hence, MHADA has filed this appeal. (3) Upon hearing Mr.Pravartak Pathak, Advocate, proxy for Mr.Uday Warunjikar, Advocate for the Appellant and Respondent in person, we are finding that this appeal is required to be allowed for the simple reason that MHADA has not filed written version in the District Forum. They remained virtually absent and the District Forum relying on Commissioner’s Report allowed the complaint and directed refund of certain amount to the Complainant. However, we are of the view that the matter like this should be decided on merit and Appellant – MHADA should be given an opportunity to contest the matter, because, though initially MHADA had informed the Complainant that flat allotted to Complainant was having area of 604.61 sq.ft. super built up, but erroneously MHADA had informed the Complainant that super built up area of the flat allotted to him was in fact 536.06 sq.ft. This fact is required to be decided again by the District Forum and therefore, we are inclined to remand the complaint back to the District Forum, Mumbai Suburban by allowing this appeal. Hence, we pass the following Order: O R D E R (i) Appeal is allowed. (ii) Impugned order passed by the District Forum, Mumbai Suburban District in Complaint No.289/2009 dated 20/09/2010 is quashed and set aside. (iii) The Complaint is remitted back to the District Forum, Mumbai Suburban with a direction to permit Appellant to file written version and documents and then to decide the matter afresh. (iv) MHADA shall pay the amount of `10,000/- as cost condition precedent for quashing and setting aside the order passed by the District Forum and for remanding the complaint back to the District Forum. (v) MHADA is also directed to pay cost of `2,000/- of this appeal to the Respondent. (vi) Both parties are directed to appear in the District Forum, Mumbai Suburban, Bandra, Mumai on 25th April, 2011, on which date Appellant shall file written version and affidavits in the District Forum besides pay an amount of `12,000/- as cost which we have imposed for allowing this appeal. Pronounced on 14th March, 2011. |
