For the Petitioners in RP No.1175/10 : Mr. S.K. Pattjoshi, Advocate & respondents in RP No.1351/10 For the Petitioners in RP No.1351/10 : Mr. Anand Patwardhan, Advocate & respondents in RP No.1175/10 Dated, the 7th day of July, 2010 ORDER JUSTICE R.C. JAIN, PRESIDING MEMBER (ORAL) Both sides, complainants as well as the builder, seek to challenge the common order dated 13.08.09 passed by the ..2.. Maharasthra State Consumer Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) in first appeal nos. 581/07 and 600/2007. The appeals before the State Commission were filed by both sides aggrieved by the order dated 15.03.07 passed by the Additional District Consumer Disputes Redressal Forum, Navi Mumbai in complaint no. 96/05. The complaint before the District Forum was filed alleging deficiency in service on the part of the builder in respect of shop no. 10 which the complainant intended to purchase from the builder but the allotment of the same was cancelled allegedly on unjustified grounds. The complainants sought refund of the deposited amount of Rs.4,64,200/- besides some more amounts paid without receipt and compensation and in alternative the possession of the shop in question. The complaint was resisted by the builder on variety of grounds and also justifying the cancellation of the shop in question. The District Forum, on consideration of respective pleas and the material produced on record, more particularly, the receipts issued by the builder in token of receiving the amount as alleged by the complainants, partly allowed the complaint with the following order and directions:- ..3.. i) Complaint no. 96/2005 is partly allowed. ii) Opposite party no. 6 stands discharged. iii) Opposite party no. 1 to 5 are jointly and severally liable to comply with this order. iv) Opposite party No. 1 to 5 are ordered to refund Rs.4,64,200/- (Rupees four lakhs sixty four thousand two hundred only) along with interest @ 9% p.a. from the date of respective payment. v) Opposite parties are directed to pay Rs.50,000/- (Rupees fifty thousand only) towards compensation and Rs.10,000/- (Rupees ten thousand only) towards costs of this complaint. vi) Opposite parties shall comply with this order. Failing which they shall be liable to pay additional penal interest @ 3% p.a. on Rs.4,64,200/- from the date of filing of this complaint till full and final satisfaction. 2. Aggrieved by the said order, direction and finding of the District Forum, both sides went in appeal before the State Commission but without success. Hence, these revision petitions. ..4.. 3. We have heard Mr. S.K. Pattjoshi, learned counsel for the complainants and Mr. Anand Patwardhan, learned counsel for the builder and have given our thoughtful consideration to their respective submissions. It is not in dispute that the builder had agreed to allot three shops no.8, 10 and 12 to the complainants and the complainants had paid most part of the consideration towards the said shops amounting to Rs.12,82,000/-. Besides that amount, he claims that some amount was paid in cash for which no receipt was issued by the builder. Mr. Patwardhan, learned counsel for the builder would assail the impugned order with regard to the direction of the District Forum for refund of Rs.4,62,200/- to the complainants primarily on the ground that the said amount was deposited by the complainants towards the sale consideration of other two shops and only a sum of Rs.1,89,200/- was deposited towards the shop no.10. He further submits that out of the total deposited amount of Rs.12,82,000/-, sum of Rs.5,66,800/- was adjusted towards shop no. 8, sum of Rs.5,26,000/- was adjusted against shop no. 12 and Rs.1,89,200/- towards shop no.10. He contends that at best, the District Forum should have directed refund of Rs.1,89,200/- only which was lying in deposit against shop no.10. ..5.. In this connection, we may simply observe that the payments were not made by the complainants in respect of specific shops separately and for this reason the builder has made adjustment of the deposited amounts in the manner which suited to his interest. In our view, such a course is not permissible in law and the builder should have apportioned the deposited amount against the consideration payable for each shop. However, since the controversy in the present petitions is in respect of shop no. 10 only, we would like to observe that the builder shall comply with the direction of the District Forum as affirmed by the State Commission by paying a sum of Rs.4,64,200/- which shall be without prejudice to his right of making any further claim towards the balance payable consideration of remaining two shops, i.e. 8 and 12. 4. Mr. Patwardhan, learned counsel for the builder then contended that the relief granted by the District Forum is excessive inasmuch as the District Forum even after awarding interest @ 9% p.a which was to be enhanced to 12% in case of default in payment, has also awarded a sum of Rs.50,000/- as compensation, besides costs of Rs.10,000/-. Having regard to the entirety of the facts and ..6.. circumstances of the case and more particularly the conduct of both the parties, we are of view that the District Forum should not have granted any further relief after awarding reasonable interest on the refundable amount to the complainant. 5. In the result, the revision petitions are disposed of and the order of the District Forum as affirmed by the State Commission is modified in the following manner:- Opposite party nos. 1 to 5 shall pay jointly and severally a sum of Rs.4,64,200/- to the complainants with interest @ 9% p.a. from the respective dates of deposits till realization within a period of four weeks from today failing which the amount shall carry interest @ 12% p.a. The payment of the said amount shall be without prejudice to the rights of O.P. Nos. 1 to 5 to make any claim for balance payable amount in respect of shop nos. 8 and 12.