Per Shri P.N. Kashalkar – Hon’ble Presiding Judicial Member:
(1) This Appeal has been filed by the original Opponent against the judgement and award passed by the Consumer Disputes Redressal Forum, Mumbai Suburban District in Consumer Complaint No.03/2008. The complaint of the Complainant was partly allowed by an impugned judgment dated 12.03.2009 and Opponent builder developer has been directed to pay interest @ 9% per annum on the amount of `19,05,300/- from 17.08.2006 the date of payment till 08.08.2007 on which date possession has been given . Opponent was further directed to pay `50,000/- as expenses towards the repairs. Opponent has been further directed to form and to get the Society registered within two months from the date of receipt of the order and execute conveyance deed in favour of the Society as per MOFA. Aggrieved by this order original Opponent has filed this appeal.
(2) We heard Advocate Mr.Y.C. Naidu, for the Appellant and Mr.U.B. Wavikar, Advocate for the Opponent.
(3) We are finding that the District Forum has simply directed that amount of `19,05,300/- paid by the Complainant should be paid with interest @9% per annum by the Builder to the flat Purchaser/Respondent herein for the period 17.08.2006 to 08.08.2007 because on 08.08.2007 possession was given to the Respondent by the Appellant. On 17.08.2006 full payment of `19,05,300/- was made by the flat purchaser to the builder, so there is delay in giving possession to the flat purchaser by the Appellant and delay was nearly of one year and for that purpose interest @9% per annum has been ordered to be paid by the Appellant to the Respondent. This part of the order passed by the District Forum is appearing to be just and proper and we do not want to interfere with the said order.
(4) Secondly, it was contended by Advocate Mr.Naidu that amount of `50,000/- calculated by the District Forum towards cost of repair is certainly on higher side. There is no proper evidence adduced and therefore, we are inclined to reduce it to `10,000/- because after taking possession of the flat it was the duty of the flat purchaser to carry out the repairs. Since the possession was given to the Complainant on 09.08.2007 it was clearly mentioned in possession receipt that the flat is properly and satisfactorily built and he had no grievance on that count. In the circumstances, we are reducing the repair cost from `50,000/- to `10,000/-.
(5) Thirdly, Mr.Naidu, submitted that Clause – 3 of the operative order should be quashed because he is not in a position to execute conveyance deed as per MOFA since conforming party is Vikas Mandal, who is owner of the land. But, what is pertinent to note is the fact that Vikas Mandal is the confirming party to the agreement executed between Respondent on the one hand and the Appellant on the other. So, this is a tri-parte agreement and as per this agreement it is the duty of the Appellant as well as Vikas Mandal to execute deed of conveyance in favour of the flat purchasers. So, this agreement is binding on the Appellant and Vikas Mandal, though Vikas Mandal has not been made party to the proceeding. We are finding that though the owner – Vikas Mandal is conforming party, and at the time of agreement he had given his land to the Opponent for development and therefore, in terms of that, duty is cast on the builder developer to execute deed of conveyance in favour of the flat purchasers. It is also duty of the builder developer independently to form co-operative Society of the Flat Purchasers which Appellant has not done and therefore, the order passed by the Forum in Clause-3 is also appearing to be just and proper. Thus, we are finding that most of the order passed by the District Forum is just and proper. Hence, we are inclined to allow the appeal partly by reducing the amount of `50,000/- to `10,000/- towards the expenses of the repairs of the flat. In the circumstances we pass the following order:
O R D E R
(i) Appeal is partly allowed.
(ii) We confirm all the clauses, except clause (2) of the operative order and we simply reduce amount of `50,000/- to `10,000/- towards repairs of the flat.
(iii) Rest of the order is kept in tact.
(iv) Inform the parties accordingly.
Pronounced on 25th March, 2011.
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