Per Mrs.S.P. Lale, Hon’ble Member This appeal is directed against the impugned order dated 03/04/2010 in consumer complaint No.93/2009 passed by District Consumer Forum, Thane, whereby the Forum below passed following order :- “1. Complaint is partly allowed. 2. The Opponents are ordered to accept balance consideration amount from the complainants and hand over possession of shop no.3 ground, floor, admeasuring 263 sq.ft. and flat No.2-A-6 admeasuring 450 sq.ft. area and enter into an agreement for sale at building constructed at Survey No.53, Hissa no.3 at Village – Diva, Dist. Thane. OR 2. The Opponents are ordered to refund `4,87,500/- (Rupees four Lakhs Eighty Seven Thousand Five Hundred only) received by them from the complainants for non-fulfillment of contractual obligation of point no.2 along with 9% interest p.a. w.e.f. 14/01/2008. 3. The Opponents are ordered to pay `10,000/- (Rupees Ten Thousand only) to the complainants towards mental harassment. 4. The opponents are ordered to pay `5,000/- (Rupees Five Thousand only) to the complainants towards legal expenses. 5. The Opponents are ordered to follow this order jointly and severally within 30 days from the receipt of this order, failing which an additional 3% penal interest p.a. shall be payable w.e.f. passing of this order.” The case of the complainant in the Forum below was that the complainants had agreed to purchase shop bearing No.3 on the ground floor, admeasuring area about 263 sq.ft. in the name of complainant No.2 at the rate of `2,800/- per sq.ft. for `7,36,400/- and a residential flat No.2-A-6 admeasuring area 450 sq.ft. at the rate of `950/- per sq.ft. for total consideration of `4,27,500/- in the name of complainant No.1. According to the complainants, they paid following consideration amount :- Cheque No.69573 dated 04/09/2004 `30,000/- Cheque No.555925 dated 23/10/2004 `20,000/- Cheque No.022264 dated 06/01/2005 `30,000/- Cheque No.022271 dated 11/03/2005 `50,000/- Cheque No.578761 dated 22/03/2005 `5,000/- Cheque No.578766, 67 & 46921 `1 Lakh Cheque No.46922 dated 02/03/2006 `25,000/- Cash dated 31/07/2006 `1,12,500/- However, according to the complainants, totally they paid `4,87,500/- to O.P. It is stated by the complainants that building constructed by the O.P. is completed but, O.P. neither executed agreement for sale in favour of the complainants nor handed over possession of the shop No.3 and flat No.2-A-6 to the complainants. Therefore, complainants suffered mental harassment and hardship. Therefore, complainants issued a legal notice dated 17/12/2008 to the O.P. O.P. replied to the said notice on 08/01/2009 and admitted having receipt of `3,75,000/-. On 27/01/2009 complainants visited the site of the O.P. However, O.P. demanded additional amount of `300/- per sq.ft. O.P. agreed to complete the construction and agreed to deliver possession before 31/12/2007. However, complainants refused to pay the illegal demand of the O.P. and finally, complainants were constrained to file consumer complaint before the Forum below. O.P.Nos.1&2 filed their written version without filing any affidavit. They pleaded that complainants had booked the shop at the rate of `3,000/- per sq.ft. and it further pleaded that O.Ps. had never agreed to deliver possession of the shop and the flat before 31/12/2007. They further pleaded that the complainants had neither paid stamp duty nor registration charges. The complainants were issued notice dated October 2005 and March 2007 for making payment. However, complainants ignored the notice and failed to pay the balance as per slab-wise and finally stated that O.Ps. had not committed any deficiency in service and prayed for dismissal of complaint. We heard Mr.U.B. Wavikar, Advocate for the appellants and Mr.Nagraj Hoskeri, Advocate for the respondents. We perused the copy of impugned order, memo of appeal and documents placed on record. We are finding that the order passed by the Forum below is just, proper and sustainable in law. The respondents had booked shop and flat for total consideration of `7,36,400/- and `4,27,500/- respectively in the year 2004. The complainants paid total amount of `4,87,500/- including cash amount of `1,12,500/-. However, O.P. admitted that they had received only `3,75,000/-. However, appellants failed to hand over the possession of the shop and flat to the respondents till 2009. On 27/01/2009 when the respondents visited the appellant’s site, the appellants illegally demanded additional amount of `300/- per sq.ft. from the respondents without executing any agreement for sale even after accepting more than 20% of the consideration amount from the respondents, which amounts to deficiency in service on the part of appellants. The appellants had filed written version before the Forum below without filing affidavit in support of their defence. The appellants have not fulfilled the contractual as well as statutory obligations by executing agreement of sale in favour of the complainants. This is not only a deficiency in service but also unfair trade practice as contemplated under Section 2(1)(r) of the Consumer Protection Act,1986. We concur with the findings of the Forum below and we are of the opinion that there is no merit in the appeal filed by the appellants. Hence, we pass the following order :- -: ORDER :- 1. Appeal No.626/2010 filed by the appellants stands dismissed. 2. No order as to costs. 3. Copies of the order be furnished to the parties. | 
