Per Mr.P.N.Kashalkar, Hon’ble Judicial Member

This appeal takes an exception to an order passed by the District Consumer Disputes Redressal Forum, Thane on 31/3/2009 in consumer complaint no.321/2006.  By this order, the appellant has been directed to deliver possession of the flat in question as per agreement dated 02/02/2005.  It has been also held that out of consideration of `8,90,000/- respondent has paid `8,30,000/- and, therefore, remaining amount of `60,000/- is directed to be paid by the respondent.  It is further directed that in an agreement dated 23/12/2004, even though rate of interest chargeable by the appellant is stated to be 24% p.a. however, the said interest was not allowed by the District Consumer Disputes Redressal Forum because as per agreement possession was not delivered. By way of mental agony `50,000/- were directed to be paid and by way of cost `10,000/- were directed to be paid.  All these amounts were directed to be paid within a period of 30 days, otherwise interest @ 10% p.a. is chargeable and if the possession of the flat is not given per day penalty and damages are charged @ `200/- per day. This order is under challenge by this appeal.

Agreement dated 23/12/2004 is admitted between the parties.  There is no dispute in respect of amount of `8,30,000/- being received by the appellant.  Only ground upon which this order is challenged that the amounts though demanded were not paid by the respondent and, therefore, the possession was not given.  In order to show that the amounts were demanded, the letters are produced.  However, we are not impressed by these letters because basically in an agreement dated 23/12/2004, there is no payment schedule mentioned in the agreement. Clause no.3 wherein provisions have been stated in respect of payments is completely blank so far as the amount of payment and when it is to be paid.  Since there was no agreement to that effect, one cannot come to the conclusion that there was a default on the part of the complainant/respondent.  Thus, natural corollary of this is that appellant is not entitled to charge interest @ 24% p.a. in case of default and District Consumer Disputes Redressal Forum has rightly refused to grant interest to that effect.  What is important to be noted under these circumstances that since the payment has been received and respondent is ready to pay an amount of `60,000/-, which is balance amount, the District Consumer Disputes Redressal Forum was justified in directing delivery of possession. It is to be noted that flat was not ready when the payments were asked for.  It became ready subsequently.  But after having become ready, there was no offer on the part of the appellant. On the contrary, appellant has tried to terminate the agreement by issuing letter dated 16/12/2006.  In fact as per agreement, possession should have been given within a period of 24 months and 24 months was over by the end of 23/12/2006, before that termination has taken place.  He never intimated that the flat is ready for delivery and the appellant is possessed of Completion Certificate and the Occupation Certificate. In fact unless the Completion and Occupation certificate are with the appellant, appellant as per provisions of Maharashtra Ownership Flats Act (MOFA) cannot deliver the possession and, therefore, case made out for default and termination was found by the District Consumer Disputes Redressal Forum to be unjust and, accordingly, it has been observed and has been held that the said letter is not justifiable one. 

What we find is that here respondent was ready and willing to discharge his obligation on completion of flat when the flat was ready for delivery.  On the contrary, when flat is ready for delivery, attempt is being made on the part of appellant to take away and recover total money and, therefore, dispute started.  In any circumstances, during the pendency of complaint flat has become ready and, therefore, on accepting remaining amount flat should have been delivered.  However, appellant continued to fight out the litigation and even if it is decided against him he continued to fight out in appeal also. Under these circumstances, amount of mental agony of `50,000/- is justifiable. When consumer has paid substantial amount and when he is ready and willing to pay remaining amount, service provider cannot deny the service.  Not only that but after termination of the agreement as contended by the service provider/ appellant, amount should have been returned, but that amount also is not returned by the appellant. This reflects upon the conduct and the bonafide of the appellan.  Being builder and developer he is interested in screwing out money. Such is the behaviour of the service provider with the consumer.  What we find therefore amount of `50,000/- by way of mental agony has been rightly awarded, amount of `10,000/- by way of cost also has been rightly awarded by the District Forum while allowing the complaint.  We are of the view that order/award passed by the District forum is just and proper and no interference is called for.  Hence we pass following order:-

                                                ORDER

Appeal stands rejected.

Copies of the order be furnished to the parties.

Pronounced

Dated 3rd September, 2010