Per Shri Dhanraj Khamatkar – Hon’ble Member:
(1) This appeal takes an exception to an order dated 20.06.2009 passed by the Consumer Disputes Redressal Forum, District Thane in Consumer Complaint No.245/2007.
(2) The facts of the case in brief can be summarized as under:
Respondent/original Complainant had entered into an Agreement with the Appellant/original Opponent for purchase of an apartment in a Paras Apartment admeasuring 550 sq.ft. for a consideration of `4,50,000/-. An Agreement was registered on 27.05.2003. Accordingly the Respondent/original Complainant had made payment of `4,20,000/-. However, the Appellant/original Opponent vide their demand letter dated 12.02.2004 had demanded `1,68,187/- within a period of seven days, failing which they had informed that the agreement would be cancelled. Hence, the Respondent/original Complainant had filed consumer complaint praying that the Opponent had committed unfair trade practice and hence, Opponent may be directed to pay an amount of `4,20,000/- along with interest @21% per annum, to return cheque of `30,000/-, `50,000/- and `1,00,000/-, `2,00,000/- for the mental agony and `20,000/- as cost.
(3) The Appellant/original Opponent had filed their written version denying contents of the consumer complaint. They further contended that the Consumer Forum does not have power to try the complaint as they have terminated the agreement dated 27.05.2003 by their notice dated 18.01.2007. They further contended that the prayer of the Respondent/original Complainant being under Specific Relief Act, the Complainant should approach the Civil Court. They further contended that the Complainant had taken loan of `3,85,194/- from the L.I.C. and the same loan amount is paid to the Appellant/original Opponent. They also contended that the Complainant had not made payment as per the agreement. The Opponent therefore prayed that the complaint may please be dismissed.
(4) The District Forum after hearing both the parties have partially allowed the complaint and ordered the Opponent to pay to the Complainant `4,20,000/- with an interest @9% per annum from January, 2004, `25,000/- for mental agony and `10,000/- as cost and to return cheques given by the Respondent/original Complainant. The District Forum further ordered that the Appellant/original Opponent should comply the order within a period of 30 days, failing which amount payable would carry interest @9% per annum along with penal interest @3% till the realization of the amount. It is against this order the present appeal is preferred by the original Opponent.
(5) Advocate Mr.B.K. Bali, argued the matter for the Appellant/original Opponent and the Respondent/original Complainant remained present in person.
(6) Admittedly, the Respondent/original Complainant had booked a flat admeasuring 550 sq.ft. in a Paras Apartment for a consideration of `4,50,000/-. This transaction was registered vide agreement dated 27.05.2003. The original Complainant had applied for L.I.C. Loan and from the case papers it is seen that the L.I.C. granted the loan of `3,85,194/- and the loan amount has been paid to the Appellants. Similarly, the original Complainant had paid `25,000/- on 29/03/2004, `5,000/- on 27.01.2005 and `5,000/- on 22/09/2004. So, total amount of `4,20,194/- was received by the Appellant from the Respondent/original Complainant. Apart from this payment the original Complainant had given cheque of `50,000/-, however, cheque could not be encashed and hence, the Appellant has initiated proceeding against the Respondent under the Negotiable Instruments Act.
(7) The Ld.Counsel strongly contended that the Respondent has breached the conditions of the Agreement and hence, by notice dated 18.01.2007 they have terminated the Agreement. The Appellant had accepted the loan amount from the L.I.C. Similarly, the Appellant has accepted the various payments made by the original Complainant and hence, termination notice given by the Appellant to the Respondent/original Complainant is not valid. The Appellants have not followed the due process for canceling the agreement. Similarly, by notice dated 12.02.2004 the Appellants have demanded an amount of `1,68,187/-. When the agreement is for consideration of `4,50,000/- the Appellants have no right to ask for the more consideration amount. During the course of hearing of the appeal, the Appellants showed their willingness to pay the amount of L.I.C. loan and the flat get redeemed. Similarly, the Respondent had also filed pursis that he is not interested in flat in question. Therefore, the Appellant was directed to clear the dues of the L.I.C. and settle the matter and hence, the Commission directed the Appellants to deposit the amount of `4,20,000/- and also directed to deposit the amount of `25,000/- and `10,000/- respectively as per the order of the District Forum and four weeks time was given. Accordingly the Appellant has credited the amount of `6,88,100/- in the Commission. It was also decided that the Appellant will pay the L.I.C. loan amount within a period of three weeks and will produce the no dues certificate in favour of Respondent and time of three weeks was granted. However, the Appellant has not produced no dues certificate regarding L.I.C. loan.
(8) Even after paying the amount of `4,20,000/- the Appellants have not handed over possession of the flat to the Respondent/original Complainant. It is on record that instead of handing over possession they have demanded amount of `1,68,187/- in addition and unilaterally vide notice dated 18.01.2007 communicated the original Complainant that they have terminated the agreement. This action on the part of the Appellants amounts to deficiency in service and unfair trade practice.
(9) The District Forum after considering the evidence have passed the order which we think is just and proper and there is no merit in the appeal filed by the Appellants. We hold accordingly and pass the following order:
O R D E R
(i) Appeal is dismissed.
(ii) The order of the District Forum is hereby confirmed.
(iii) It is further directed that the amount deposited by the Appellants be handed over to the Respondent/original Complainant after the appeal period is over.
(iv) No order as to costs.
Pronounced on 25th March, 2011.
