ORAL JUDGMENT

PER JUSTICE MR. V.R. KINGAONKAR

          We have heard learned counsel for the petitioner and Respondent in person.

2.          Admittedly, the Respondent agreed to purchase two flats (Apartments) in pursuance to an advertisement issued by the petitioner. The Respondent deposited initial booking amount of Rs. One lakh on 12-03-2005 and on 15-03-2005.  He further made payment of Rs.5,24,012/-.  Thereafter, an Agreement of Sale was executed between the parties.  As per the agreement, the possession of the flats had to be delivered on or prior to 31-07-2007.  There was no construction activity during the relevant period.  There is no dispute about the fact that the time schedule for payment was envisaged under the agreement but was subsequently changed in view of the delay in the construction.  The actual possession of the apartment was   delivered    to  the   Respondent (complainant) on 22-08-2009.  The contention of the Respondent before the District Consumer Forum and the State Commission was that there was no undue delay in the payment and therefore the subsequent amount of Rs.88,62,270/- was utilized by the petitioner – builder for a longer period.  He, therefore, sought compensation in as much as the agreement also provide for payment of interest/compensation and moreover on the ground that the petitioner/builder utilised his amount for unjust enrichment. 

3.          There are concurrent findings of both the Fora below, holding the petitioner guilty of rendering defective service on account of delay in delivery of actual possession.  The compensation granted to the Respondent by the District Consumer Forum was confirmed and upheld by the State Commission vide FA No. 1131 of 2010 and FA No. 2041 of 2010.

4.          Having gone through the relevant documents and orders of the Fora below, we are of the opinion that no substantial question of law is involved in the petition.  The arguments of the learned counsel for the petitioner are that the State Commission did not consider the terms of agreement between the parties in whole and picked certain terms.  The clinching question is as to whether the petitioner utilized the money paid by the Respondent during the relevant period.  This question has been addressed to by both the Fora below on consideration of the material placed by the parties.  Whether the entire agreement is required to be interpreted in view of each of the term or not, in our opinion, is not the material issue but the question whether the amount paid by the Respondent was available to the petitioner for use during the relevant period is the significant one.  There was unjust enrichment made by the petitioner and therefore, the award of compensation to the Respondent was rendered.  We are not inclined to interfere with the concurrent findings of both the Fora below.  Hence the revision petition is dismissed.  However, we make it clear that this dismissal of the revision petition will not come in the way of the petitioner to put forth defence as may be available to the petitioner in any other case because in the present case the petitioner was set ex-parte before the District Consumer Forum and could not have put the defence regarding the impact of default clause in the agreement.  The petition is accordingly dismissed.  No costs.