Per Shri S.R. Khanzode – Presiding Judicial Member:

(1)          This appeal takes an exception to an order dated 31/12/2009 passed in Consumer complaint No.403/2003, Shri Akshayakumar Kashyap V/s. M/s.Indico Construction Company & Ors., by District consumer Disputes Redressal Forum, Mumbai Suburban District (In short ‘Forum below’).

(2)          Appellant/Complainant is a promoter/member, hereinafter referred to as ‘Allottee member’ of Bharatiya Kala Mandal C.H.S. Ltd. of which Shri K.K. Shetty was the Chief Promoter.  The construction work on behalf of Allottee Member and the society was entrusted to Respondent/Opposite Party No.1 – M/s.Indico Construction Co. (hereinafter referred to as the Contractor).  The tri party agreement between the Promoter, Construction Company and Allottee member had taken place on 31/01/1983.  According to the Appellant/Complainant since the construction work of his flat could not be completed and since any other alternate flat was not made available, he had filed consumer complaint on 24.12.2003 inter alia claiming the relief of refund of consideration paid of Rs.96,286/- along with interest @ 18% per annum and further compensation of Rs.8,39,274/- being the differential amount towards the cost of an alternate flat at the then rate and also claimed Rs.11,500/- as cost and Rs.20,000/- towards the legal and incidental expenses.  Forum below by its impugned order directed to refund Rs.73,700/- along with interest @18% per annum and also further awarded Rs.5,000/- as cost.  However, original Complainant not satisfied with the same, has preferred this appeal.

(3)          We heard Mr.U.B. Wavikar, Advocate for the Appellant and Mr.S.A. Shetty, Advocate for  Respondent Nos.1, 2A to 2D. None present for other Respondents.

(4)          The grievance made by the Appellant is about not granting possession and/or alternatively refund of consideration paid by him.  In the instant case, the Contractor’s services were engaged to complete the construction for and on behalf of the Society vis-a-vis Allottee member in terms of the agreement dated 31^st January, 1983.  Undisputedly, said construction was to be completed subject to permission given and plan sanctioned by local authorities.  The construction of the flat belonging to the Appellant/Allottee member could not be completed since, admittedly, the aviation authorities had taken objection and that affected issue as to sanction the construction covering the flat of the Appellant.  In this circumstances, fresh agreement between the Contractor and the Chief Promoter of the Society had taken place.  Only grievance of the Appellant is that even though he could have been accommodated in other surrendered flats those were sold and therefore, he claimed compensation, supra, in addition to refund of its consideration.

(5)          Considering the nature of the tri party agreement, supra, contractor was engaged to complete the construction as per the sanctioned plan and by-laws and subject to the permission of the authorities.  For want of such requisite permission and particularly, in view of the objection from Civil Aviation Authority, the flat in question of the Appellant could not be constructed at all. Therefore, the contractor cannot be blamed.  Allotment of a particular flat or any other available flat was obviously not domain of the contractor since as in the instant case the contractor was agreed to construct a flat for respective allottee members as per the tri party agreement and it has nothing to do with the other flats.  In the circumstances, to claim compensation on the ground that the contractor has not provided other flat available and therefore, to pay compensation to the Appellant at par with then market price of the flat is improper and no such compensation could be granted to the Appellant, as prayed.  Appellant is already suitably compensated by directing refund of money of consideration paid by him along with interest @18% per annum which otherwise also would provide compensation to the Appellant/Complainant considering escalation of prices of the flats.  Thus, we find appeal devoid of any substance and holding accordingly, pass the following order:

O  R  D  E  R

     (i)       Appeal stands dismissed.

         (ii)          Both parties are directed to bear their own costs.