Per Hon’ble Mr.S.R.Khanzode, Presiding Judicial Member
This appeal takes an exception to an order dated 22/10/2010 passed in consumer complaint no.250/2008, Mr.Mathew Varghese through its power of attorney holder Mr.Epen Mathew v/s. M/s.S.S. Construction, a partnership firm and others; by District Consumer Disputes Redressal Forum, Nasik. The consumer complaint pertains to reliefs for deficiency in service on the part of opponent/ builder & developer for not handing over possession of the flats agreed to be purchased by the complainant and for compensation. The consumer complaint stood dismissed as per impugned order and, feeling aggrieved thereby, this appeal is preferred by the complainant.
Undisputed facts are that complainant –Mr.Mathew Varghese, who is working in Merchant Navy agreed to purchase two flats bearing nos.6 & 8 in a building constructed and developed by opponent no.1-partnership firm of which opponent no.2-Mr.Shibu Gopalkrishnan Nair and opponent no.3-Mr.Shailendra Arvind Sukhtankar are the partners. Flat no.6 is admeasuring 920 sq.ft. and flat no.8 is admeasuring 800 sq.ft. and, thus, the total area of these two flats is 1720 sq.ft. The building in which the flats are situated is located at village Anandvalli, District Nasik within the Municipal Corporation limits. The agreed rate was `563.50 ps. per sq.ft. total amounting to `9,69,676/-, out of which complainant claims to have paid `9,43,000/- from time to time and the balance of `26,676/- was to be paid at the time of possession. In addition to it, complainant agreed to pay `30,000/- for the terrace area. Though the payment receipts were issued, opponents failed to execute written agreement and also failed to deliver possession and, therefore, a consumer complaint was filed.
Initially, the consumer complaint stood dismissed on 29/10/2009 and said dismissal was successfully challenged in appeal bearing no.1390/2009 by the complainant. The matter was remanded back as per the decision in appeal to give an opportunity to both the parties to lead the evidence on affidavits as per section 13(4) of Consumer Protection Act, 1986 (‘Act’ for brevity) and, thereafter, to settle the dispute accordingly. The dispute was settled accordingly as per impugned order dated 22/10/2010.
Heard both the parties. The opponents did admit the agreement in question which is also witnessed by the payment receipts. The opponent/builder did not dispute a specific averment in the complaint about total consideration agreed of `9,69,676/- and out of which complainant paying an amount of `9,43,000/- and balance of `26,676/- was payable at the time of receiving possession. Builder also did not dispute the fact that complainant agreed to pay `30,000/- for the terrace area.
The opponents came with the case that having waited to fulfill the demand of `2,00,000/- by December 2002 by the complainant, they had terminated the agreement by their letter dated 10/02/2004 and requested the complainant to collect the amount paid by him. Complainant disputes having received any such letter or that his agreement was terminated by the opponents. Therefore, in those circumstances, it is for the opponents to establish this particular fact. As observed by the forum in the impugned order dated 22/10/2010, in spite of remand no further evidence was led by the parties. Forum erred in observing that it is for the complainant to establish this particular fact by leading evidence of postal authorities and, particularly, filing the original under postal certificate of posting of the said letter and that too on a correct address. Once the complainant denies having received any such communication and the fact of termination of his agreement, it is for the opponents to establish the said fact and burden of proof is on the opponents and not on the complainant. As observed by the forum, no original postal certificate i.e. under certificate of posting of posting the said letter dated 10/02/2004 is produced on record by the opponent. Denial on the part of the complainant rebutted the presumption in respect of certificate of posting. Under the circumstances, the agreement between the parties must be held as subsisting.
Apart from this complainant has paid a substantial amount of consideration and only `26,676/- remain to be paid out of total consideration of `9,69,676/-, besides an amount of `30,000/- agreed to be paid for the terrace and, therefore, it is unlikely that complainant would not pay this amount and would not accept the possession of flats, if offered by the opponent/builder. Therefore, on preponderance of probabilities, case of the complainant that he was all the while interested in taking possession of the flats but it is the builder who avoided to do so is to be accepted.
Since the builder failed to hand over the possession of the flats after receiving balance consideration of `26,676/- and an additional amount of `30,000/- for the terrace, the deficiency in service on the part of opponent/builder is well established and, therefore, builder is under obligation to hand over possession of the flats as agreed to the complainant. However, as per the written version of the opponents, simultaneously they come with a case of selling of the flats but no documents to substantiate the same are placed on record. Since the opponents claim accordingly, we find it proper to award by way of alternate relief a suitable compensation by way of refund of amount to the complainant along with interest @ 24% p.a. considering the escalation of prices of the property, as per the final order below:-
ORDER
Appeal is allowed.
Impugned order dated 22/10/2010 of dismissal of consumer complaint is hereby set aside.
Consumer complaint is partly allowed. Opponent nos.1 to 3 do hand over possession of the flats bearing nos.6 & 8 to the complainant along with the terrace area. Simultaneously, at the time of taking possession, complainant do pay balance amount of `26,676/- towards the agreed price of the flats along with `30,000/- agreed to be paid for terrace to the opponents.
Alternatively, opponent nos.1 to 3 shall refund an amount of `9,69,676/- to the complainant along with interest @ 24% p.a. w.e.f.20/10/2008 i.e. the date of filing of the complaint till its realization.
Opponent nos.1 to 3 shall bear their own costs and pay `50,000/- as costs to the appellant/ complainant Mr.Mathew Varghese.
Pronounced on 3rd May, 2013.
