(Per Shri S.R.Khanzode, Hon’ble Presiding Judicial Member)
(1) This appeal takes an exception to an order dated 17/11/2011 in Consumer Complaint No.364/11, Shri Sanjeev Pandurang Nimbalkar Vs. 1.Sai Construction & ors., passed by District Consumer Disputes Redressal Forum, Kolhapur (‘Forum’ in short). Allowing the consumer complaint, the forum directed the appellants (original opponents) to hand over possession of the flat in question on the receipt of consideration of `7,02,200/- along with the occupancy certificate. Feeling aggrieved thereby, the opponents preferred this appeal.
(2) It is submitted on behalf of the appellant that they are willing to hand over possession of the flat provided balance of consideration of `7,02,200/- is paid along with an interest @ 21% p.a. chargeable on delayed payment as per the agreement between the parties. It is submitted that in the reply given by the opponent on 07/04/2011 to the notice of the complainant dated 21/03/2011, attention of the respondent/complainant was also invited to this aspect about liability to pay interest. It is submitted on behalf of the respondent/complainant that they were always willing to pay `7,02,200/- and even tendered that amount to the appellant but the appellant/opponent did not accept it. It is stated at Bar that in this background of refund to accept the payment, it was ultimately deposited in the forum by the complainant.
(3) It is revealed from the record that after the payment of `1,22,800/- on 18/05/2010, further payment was agreed to be made within a couple of weeks. However, thereafter instead of payment, exchange of notices between the parties had taken place and the complainant had objected to the demand. However, from the material placed on record it is revealed that the complainant alleged that as per the telephonic intimation received, they kept money ready, but could not be paid since occupancy certificate was yet to be obtained. Admittedly, the occupancy certificate was not obtained by the appellant and hence as per The Maharashtra Ownership Flats (Regulation of the Promotion, Construction, Sale, Management and Transfer)Act,1963(“the MOFA” for brevity), the possession of the flat could not be handed over or even taken by the flat purchaser. Thus, since the payment was to be made simultaneously with the possession and possession could not be handed over or taken, it would be rather proper and just to hold that there is delay in making the payment and therefore, interest on delayed payment would be chargeable. Therefore, the impugned order cannot be faulted with and the submission of the appellant that the forum ought to have awarded interest on delayed payment, is devoid of any substance. Thus, finding appeal without any merit, we hold accordingly and pass the following order.
ORDER
(1) Appeal stands dismissed.
(2) Parties to bear their own costs.
Pronounced on 7th February, 2013.
