Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member
This is an appeal filed by org. complainant-Mrs.Nirmala Shantilal Bhatewara, whose complaint was partly allowed by the District Consumer Disputes Redressal Forum, Pune in consumer complaint No.131/2002 by judgement dated 20/09/2004. While allowing the complaint partly, the District Consumer Disputes Redressal Forum directed opponent Nos.1&2 to pay an amount of `1,75,000/- along with interest @ 12% p.a. from 01/10/2001 till realization of the amount and cost of `1,000/- to be paid to the complainant within period of two months. Not satisfied with the reliefs granted, org. complainant has filed this appeal.
2. This appeal has been filed without there being any date mentioned in the appeal memo. What is shocking is the fact that Advocate for the appellant has not put his signature on the appeal memo. In appeal memo, in Para 10 it is simply mentioned that, “The appellant received certified copy of the judgment on……….. The appellant has filed separate application to condone the delay caused in filing this appeal.” Even the application for condonation of delay filed by the appellant is unsigned and undated.
3. Complaint was filed by the complainant with a prayer that opponents should be directed to give possession of flat No.A-2 to the complainant as per agreement of sale dated 25/04/1996. She also claimed amount of `2,000/- per month for the delay in giving possession i.e. from 25/01/1997 till actual possession of the flat is given which possession was not at all given by the opponents/respondents herein. Thereafter, her alternate prayer was that if opponents are unable or not intending to give possession of flat No.A-2 then the opponents may please be directed to refund entire amount already paid by the complainant with interest @ 24% p.a. and also to pay damages of `3,25,000/- in lieu of loss of profit due to increase in market rate. She also claimed that opponents should be directed to pay `1 Lakh as compensation for mental agony and `10,000/- towards costs. With these prayers after hearing both the parties, District Consumer Disputes Redressal Forum allowed the alternate prayer of the complainant and directed the opponents/respondents herein to refund the amount of `1,75,000/- with interest @ 12% p.a. Not satisfied with this order, the appellant has filed this appeal memo without bearing any signature of anybody and without bearing date of filing of the appeal and prayed that the respondents may be ordered to hand over possession of said flat forthwith and to pay damages @ `2,000/- per month from 25/01/1997 till actual possession is given. So, basically, this appeal filed by the appellant is for claiming possession of the flat since possession of the flat has not been ordered by the District Consumer Disputes Redressal Forum in its award which has been impugned in this appeal by the complainant herself.
4. Appellant is absent today. On previous date i.e. 11/10/2011 appellant was present in person. He sought time because his Advocate was not available and subject to cost of `1,000/- payable by appellant to respondents, we adjourned this matter today. Today, appellant and her Advocate are absent. We heard Mr.M.R. Pimpalgaonkar, Advocate for the respondents. We have perused the impugned order, unsigned appeal memo as well as unsigned delay condonation application and we have been told by Advocate Mr.M.R. Pimpalgaonkar that after passage of this award in compliance of the said award, his client has already sent on 30/11/2004 an account payee’s Pay Orders for `2,40,000/- to the appellant and that Pay Orders have been encashed by the complainant/appellant herein as per the certificate issued by the Agrasen Urban Co-operative Bank Ltd., Pune, Branch Yerawada. Moreover, it has been pointed out to us that the flat in question has been already sold and given in possession to third party by respondents. In this view of the matter, the order challenged by the complainant in this appeal is already complied with. She had accepted said amount in compliance of the order passed by the District Consumer Disputes Redressal Forum and now, she is asking for possession of the flat. It may be borne in mind that consumer or complainant cannot be permitted to blow hot and cold simultaneously. If she has filed appeal for getting possession of the flat she had booked from the respondents, she should not have accepted refund of amount of `2,40,000/- as per the award passed by the District Consumer Disputes Redressal Forum, Pune. She accepted said amount and still filed appeal seeking possession of the flat which cannot be permitted in law. Secondly, it must be borne in mind that in her complaint she has specifically prayed for possession of the flat initially, but alternatively she claimed refund of amount already paid by her to the respondents/opponents with interest @ 24% p.a. and District Consumer Disputes Redressal Forum was pleased to order refund of `1,75,000/- with interest @ 12% p.a. thereon acceding to her alternate prayer for refund of moneys. In the circumstances, we find no substance in this appeal memo which is unsigned and undated. We therefore find no merit in the appeal. Hence, we pass the following order :-
-: ORDER :-
1. Appeal stands dismissed.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 29th November 2011.
