Per Hon’ble Mr.S.R.Khanzode, Presiding Judicial Member

These two appeals takes an exception to an order dated 28/08/2008 passed in consumer complaint no.383/2005, Tulsiram Dadu Thorat v/s. Mr.Bappanand Narshimhan - Proprietor M/s.Annapi Construction Co. by Additional Mumbai Suburban District Forum.   Not satisfied with the impugned order, complainant -Tulsiram Dadu Thorat (herein after referred as ‘complainant’) preferred Appeal no.1288/2008, while opponent –Mr.Bappanand Narshimhan- Proprietor of M/s.Annapi Construction Co. (herein after referred as ‘builder’) preferred Appeal no.1579/2008.  Since these are cross appeals are heard together, they are disposed of by this common order:-

Undisputed facts are that complainant –Tulsiram Dadu Thorat agreed to purchase flat no.1504 situated on 15^th floor of building known as Mahesh Tower at Bhaktidham Complex developed by the builder for a total consideration of `5,13,000/-.  Said flat is having an area of 570 sq.ft.  Possession is yet to be delivered by the builder.

It is the contention of the complainant that out of total consideration of `5,13,000/- he has in all paid `4,82,400/- but since the builder failed to give possession as agreed by 31/10/2003, ultimately, he has filed this consumer complaint on 20/09/2005.

Builder disputed receipt of two payments of `1,71,000/- and `14,400/- as per details of the payment mentioned by the complainant in para 6 of the complaint.  Builder perhaps came with a case that his authorized representative associated in the project, namely, Laxman Dhanaji Singhani, since now disassociated himself with the builder, he asked for the details of the payments made and the transaction which is witnessed by an unregistered agreement dated 01/10/2001.  It may not be out of place to mention here that said agreement is duly franked indicating payment of stamp duty over it.  Issue as to pecuniary jurisdiction since already settled by the Commission when earlier complaint was filed before it, forum rightly assumed the jurisdiction to settle the dispute in question.

Heard both the parties.

Agreement though not registered could be used for ancillary purpose to corroborate transaction in question as per provisions of 4A of Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management & Transfer) Act, 1963 (‘MOFA’ in short). Furthermore, along with the lawyer’s notice dated 06/12/2004, the agreement was sent to the builder by the complainant.  It did not dispute the transaction but claimed that his associate Laxman Dhanaji Singhani is since then absconding, asked for details of the transaction and the payment made. These particular details were supplied by the complainant as per its reply through advocate dated 26/03/2005.  Except one payment of `14,400/- dated 17/02/2003 (which was also made by cheque) all other payments are also witnessed by the receipts.  Since the last payment dated 17/02/2003 was made by cheque, there is no reason to disbelieve complainant about making such payment.  Thus, complainant did establish payment of total consideration of `4,82,400/- by him.

Builder did not dispute authority of Mr. Laxman Dhanaji Singhani to act on his behalf to execute the agreement dated 01/10/2001 in favour of the complainant. Consideration paid is already established by the complainant.  Under the circumstances, there is no reason for the builder to refuse possession on receipt of the balance consideration.  Forum rightly held so but in its own wisdom preferred to grant the alternate relief of compensation of refund of consideration paid along with interest @ 18% p.a. instead of 21% p.a. claimed by the complainant.

Forum considered grant of interest @ 18% p.a. considering the escalation of the price of flats.  As per the agreement dated 01/10/2001, per its clause 6, on default the builder could demand interest @ 21% p.a. from the flat purchasers.  Applying the same ratio, it would be just and proper to award interest @ 21% p.a. on the amount directed to be refunded to the complainant.  Forum did not consider this particular clause in the agreement.  Therefore, we hold accordingly and partly allowing the appeal of the complainant and finding no merit in the appeal of the respondent following order is passed:-

                                      ORDER

1.  Appeal no.A/08/1579 filed by the original opponent stands dismissed and Appeal no.A/08/1288 filed by the original complainant is partly allowed.

2.    In the impugned order, para 2 of the operative part, rate of interest payable should be read as 21% p.a. and that too from the respective dates of payments made as stated in para 6 of the complaint viz.

3.    Rest of the order is maintained.

4.   In the given circumstances both the parties to bear their own costs.

Pronounced on 20^th September, 2012.