Per – Hon’ble Mr. S. R. Khanzode, Presiding Judicial Member
This appeal takes an exception to an order dated 2/6/2010 passed by the District Consumer Disputes Redressal Forum, Kolhapur (hereinafter referred to as ‘the Forum’ for the sake of brevity) in Consumer Complaint No.126 of 1995, Mr. Yogesh Nandlal Heda Vs. M/s. Subal Constructions and Others. Consumer complaint pertains to alleged deficiency in service on the part of the Respondent/Opponent No.1 – M/s. Subal Constructions, a partnership firm of which the Respondents/Opponents Nos.2 to 4, namely – Mr. Sunil Balram Mahajan, Mr. Satish Vijaykant Moog and Mr. Chetan Sundarlal Kajaria respectively were the partners (M/s. Subal Constructions, the firm is stated to be dissolved as per the Dissolution Deed and it is the Respondent/Opponent No.3 Mr. Satish Vijaykant Moog had taken the responsibility in respect of the claims arising out of this consumer complaint).
[2] It is the contention of the Appellant/Complainant – Mr. Yogesh Nandlal Heda (hereinafter referred to as ‘the Complainant’ for the sake of brevity) that he agreed to purchase flats bearing Nos.5 and 6, which is renumbered as Flat No.005 having built-up area admeasuring 850.11 sq. ft. and ground area admeasuring 79.12 sq. meters situated on the ground floor and open space of 660 sq. ft. for a total consideration of `3,45,000/- from the Respondent/Opponent No.1 Firm (hereinafter referred to as ‘the Builder’ for the sake of brevity). The Complainant paid an amount of `34,500/- as booking amount. The Builder failed to execute an agreement and a draft submitted by the Builder contained one sided terms to which the Complainant had taken objections. However, the Builder failed to execute the agreement as suggested by the Complainant. The Complainant ultimately claimed to have paid to the Builder an amount of `2,61,750/- as part-consideration. Since the Builder failed to execute the agreement and deliver the possession, the Complainant filed this consumer complaint in the year 1995. Earlier, said consumer complaint came to be decided on 6/5/1998. That order was challenged by both the parties by filing separate appeals. Builder filed an appeal bearing No.1081 of 1998 while the Complainant filed an appeal bearing No.1110 of 1998. Appeal No.1081 of 1998 was allowed saying that the impugned order dated 6/5/1998 was not a complete order since it was not signed by all the three members of the Forum. In the light of those observations, Appeal No.1110 of 1998 filed by the Complainant also stood disposed of and the consumer complaint was remanded to the Forum. Thereafter, impugned order dated 2/6/2010 came to be passed. Said impugned order is challenged only by the Complainant since not satisfied with the relief granted. It is submitted at the Bar that no appeal is preferred by the Respondents/Opponents.
[3] Heard Adv. Anand V. Patwardhan on behalf of the Appellant and Adv. Uday B. Wavikar on behalf of the Respondents. Perused the record.
[4] It is the contention of the Builder that tentatively it was agreed to sell the flat to the Complainant and the amounts received from the Complainant were taken as deposit on which no interest was payable. The Complainant was not satisfying all the requirements particularly qualifying himself as a person from low income group to whom only the flats could be sold in view of the specific conditions under the Urban Land Ceiling Act imposed. It was a scheme sanctioned under Section-20 of the said Act. The Complainant and his family own a house and they do not fall within the economically weaker section. The Complainant was not willing to affirm his status as one from economically weaker section and as such, failed to qualify himself to purchase the flat. Under the circumstances, the agreement could not be executed. The Builder also showed its willingness to refund the amount since the Complainant was not fulfilling the criteria, supra. It is also submitted that the Respondent/Opponent No.1 – M/s. Subal Constructions, a partnership firm, stood dissolved.
[5] The Forum, as per impugned order, directed to refund the amounts which were accepted by the Builder from the Complainant and it was further held that the amount deposited by the Complainant in the Forum would be refunded to him. The order does not specify quantum of above-referred amounts.
[6] Considering the material placed on the record it is revealed that the Complainant will not fall within the criteria of economically weaker section. He, thus, also could not swear an affidavit saying that he qualified for a flat from the building construction scheme which was sanctioned under Section-20 of the Urban Land Ceiling Act. Obviously, therefore, Builder expressed his inability to execute an agreement in favour of the Complainant. Therefore, there was never a concluded contract between the Complainant and the Builder to purchase a flat.
[7] Besides this as per the averments made in the complaint, the Builder submitted a draft of agreement to the Complainant and the agreement was to be executed in those terms if the Complainant fulfilled the criteria being from economically weaker section. Complainant had his own reservations about the draft to which a reference is made earlier. Builder never agreed to those changes. This also shows that no concluded contract had taken place between the Complainant and the Builder to sell the flat in question.
[8] Thus, if there is no concluded contract in respect of sale of flat, there arises no obligation on the part of the Builder to hand-over possession of the flat to the Complainant. Thus, no deficiency in service on this count against the Builder can be inferred.
[9] However, admittedly, the Builder has received amounts which according to the Complainant, as per the statement in the notes of arguments was of `2,61,750/-. It is revealed that there is no dispute about the amount received by the Builder from the Complainant. The Builder showed his willingness to refund the amount without interest. Nevertheless the Builder never refunded the amount to the Complainant. Therefore, deficiency in service for not refunding this amount to the Complainant can be inferred. Thus, the impugned order to refund this amount cannot be faulted with. However, the Forum did not specify this amount. An order cannot be left in vague and, therefore, we only specify this amount while passing the order in this appeal. The Complainant is not entitled to any further relief and the appeal to that extent is devoid of any substance. We hold accordingly and pass the following order:-
ORDER
Appeal is partly allowed.
Impugned order dated 02nd June, 2010 passed by the District Consumer Disputes Redressal Forum, Kolhapur in Consumer Complaint No.126 of 1995 is substituted with following order:-
“Respondents/Opponents do pay to the Appellant/Complainant an amount of `2,61,750/-. This amount shall be paid within a period of forty-five days from the date of order passed in appeal and failing which it shall carry interest @ 21% p.a. till its realization.”
Respondents/Opponents to bear their own costs and shall pay to the Appellant/Complainant an amount of `25,000/- as costs of this appeal.
Pronounced on 23rd July, 2013
