Per Shri P.N. Kashalkar – Hon’ble Presiding Judicial Member:
(1) This is an appeal filed by the original Opponent No.1 against the judgement and award passed by the Additional District Consumer Disputes Redressal Forum, Thane in Consumer Complaint No.171/2008 decided on 31.07.2009. While allowing the complaint partly the District Forum directed Opponent to pay interest on the amount of `14,31,250/- from 04.08.2006 till actual payment @12% p.a. and also directed to pay `40,000/- towards mental harassment and `5,000/- towards costs. As such original Opponent has filed this appeal.
(2) The Complainant had booked a flat with the Appellants and Complainant had taken possession of the Flat in the year 2005 and he had actually paid total amount of `14,31,250/- which was in excess of the agreed consideration of `13,31,250/-. So appellant collected `1,00,000/- more from the Complainant. However, the District Forum passed award directing Appellant to pay interest on the amount of `14,31,250/- along with interest @12% per annum from 04.08.2006 till actual payment. Thus, this is an order which has been taken exception of in this appeal.
(3) The payment of `14,31,250/- made by the Appellant is admitted. Agreed price of flat was `13,31,250/-, so according to us `1,00,000/- extra was collected by the Appellant. The District Forum erroneously held that though Respondent had paid full amount of `14,31,250/-, the Complainant has not been given possession of the flat. This is a wrong finding. It has been admitted categorically before us by the Respondent No.1/original Complainant that he has been given possession of the flat in the year 2005, whereas, Agreement for sale between the parties was executed and registered in 2006. So there is no question of payment of any interest by Appellant to the Respondent on any amount whatsoever. Here, we are finding that Appellant had collected `1,00,000/- more than the agreed price of flat as per the agreement and this amount of `1,00,000/- will have to be directed to be paid back to the Complainant by allowing this appeal partly and order passed by the District Forum in Clause No.2 of the operative order will have to be modified because in operative order 2(a) the District Forum directed payment of interest @12% per annum from 04.08.2006 on the whole amount of `14,31,250/- on the erroneous finding and assumption that flat has not been given in possession of the Respondent/Complainant, but this assumption has been refuted by the Respondent who appeared in person before us and he categorically submitted that he has already received possession of the flat from this Appellant in the year 2005. So, to do proper equities between the parties we will have to allow this appeal partly and direct Appellant to refund amount of `1,00,000/- to the Respondent with interest @ 12% per annum from the date of filing of the complaint i.e. from 29.09.2008 till actual realization of the said amount. The amount of `40,000/- granted in terms of operative order 2(b) is also quashed since Complainant/Respondent is already enjoying possession of the flat since 2005. However, costs imposed on the Appellant is maintained. Hence, we pass the following order:
O R D E R
(i) Appeal is partly allowed.
(ii) In modification of the order passed by the District Forum, we direct that Appellant to refund to the Respondent No.1/original Complainant amount of `1,00,000/- with interest @12% per annum from the date of filing of the complaint i.e. from 29.09.2008 till actual realization of the amount and to pay costs of `5,000/- as ordered by the District Forum.
(iii) The amount of `25,000/- deposited by the Appellant be directly paid to the Respondent No.1 towards part satisfaction of this award.
(iv) Inform the parties accordingly.
Pronounced on 27th September, 2011.
