Per Mr.Dhanraj Khamatkar, Hon’ble Member

This appeal takes an exception to an order dated 04/8/2009 passed in consumer complaint no.64/2009 by the District Consumer Forum, Raigad.

Appellant/complainant has booked a flat no.A-204 admeasuring 555 sq.ft. built up for consideration of Rs.4,60,650/- and paid an amount of Rs.10,000/- on 17/7/2005 as an advance.  Accordingly, opponent had issued an allotment letter on 17/7/2005 and the remaining amount was to be paid from January 2005 to March 2007.  The complainant/appellant had requested the opponent to execute an agreement to sale in respect of flat booked and, accordingly, paid Rs.4,20,000/- as per the details given below:-

Appellant/complainant had paid nearly 90% of the amount of the flat booked.  However, opponent has not executed the agreement for sale and has not handed over possession of the flat.  The complainant issued to the opponent a notice dated 03/8/2007 through advocate and opponent replied said notice on 31/8/2007.  However, complainant is not satisfied with the reply.  Hence the complainant/appellant has filed a consumer complaint praying a) possession of the flat b) if the opponent is not able to hand over possession, he should pay the amount of Rs.4,20,000/- with interest @ 24% p.a. and c) to pay Rs.1 lakh for the mental agony as compensation. Forum below enquired into the consumer complaint and passed the order as under:-

-: †Ó×ŸÖ´Ö †Ö¤êü¿Ö:-

            †Ö¤êü¿Ö ¯ÖÖ¸üßŸÖ ŸÖÖ¸üÖê¯ÖÖÃÖæ­Ö 45 פü¾ÖÃÖÖÓ“Öê †ÖŸÖ, ÃÖÖ´Ö­Öê¾ÖÖ»Öê µÖÖÓ­Öß ¯Öãœüᯙ †Ö¤êü¿ÖÖ“Öê ¯ÖÖ»Ö­Ö ú¸Ö¾Öê.

            ¾Ö¸üᯙ ¸üú´ÖÖ ×´ÖôûÖ»µÖÖ ×¤ü¾ÖÃÖÖ¯ÖÖÃÖæ­Ö ¤ü¸ü ÃÖÖ»Ö ¤ü¸ü ¿Öêú›üÖ 8 ™üŒêú ¤ü¸üÖ­Öê ¾µÖÖ•ÖÖÃÖÆü ´Öã§ü»Ö ŸÖÎúÖ¸ü¤üÖ¸ü µÖÖÓÃÖ ¤êüµÖÖŸÖ µÖÖ¾Öê.

2.         ´ÖÖ­Ö×Ã֍ú ¾Ö ¿ÖÖ׸ü׸üú ¡ÖÖÃÖÖ¯ÖÖê™üß ºþ. 5,000/- (ºþ. ¯ÖÖ“Ö Æü•ÖÖ¸ü ´ÖÖ¡Ö) ÃÖÖ´Ö­Öê¾ÖÖ»Öê µÖÖÓ­Öß ŸÖÎúÖ¸ü¤üÖ¸üÖÓÃÖ ªÖ¾ÖêŸÖ.

            ×¾Ö×ÆüŸÖ ´Öã¤üŸÖßŸÖ ˆ¯Ö¸üÖêŒŸÖ †Ö¤êü¿ÖÖ“Öê ¯ÖÖ»Ö­Ö ÃÖÖ´Ö­Öê¾ÖÖ»Öê µÖÖÓ­Öß ­Ö êú»µÖÖÃÖ ¾Ö¸üᯙ ú»Ö´Ö 1 ´Ö¬Öᯙ ¾µÖÖ•ÖÖÃÖÆü ÆüÖêÖÖ¸üß ¸üŒú´Ö ¾Ö ú»Ö´Ö 2 ´Ö¬Öᯙ ¸üŒú´Ö ¤ü¸ü ÃÖÖ»Ö ¤ü¸ü ¿Öêú›üÖ 8 ™üŒêú ±úŒŸÖ ¾µÖÖ•ÖÖÃÖÆü ¾ÖÃÖæ»Ö ú¸üµÖÖ“ÖÖ †×¬ÖúÖ¸ü ŸÖÎúÖ¸ü¤üÖ¸üÖÓ­ÖÖ ¸üÖÆüß»Ö.

3.         ­µÖÖ׵֍ú Ö“ÖÖÔ“Öê ¾ÖÆü­Ö ˆ³ÖµÖ¯ÖÖÖÓ­Öß Ã¾ÖŸÖ: ú¸üÖ¾Öê.

4.         µÖÖ †Ö¤êü¿ÖÖ“µÖÖ ¯ÖÏ´ÖÖ×ÖŸÖ ¯ÖÏŸÖß ˆ³ÖµÖ¯ÖÖúÖ¸üÖÓ­ÖÖ ¯ÖÖšü׾֝µÖÖŸÖ µÖÖ¾µÖÖŸÖ.

It is against the order of the forum below dated 04/8/2009 present appeal is filed.  Appeal is mainly filed for enhancement of the compensation. Admittedly, appellant has booked a flat no.A/204 admeasuring 555 sq.ft. for consideration of Rs.4,60,650/-.  It is also established that the appellant has paid an amount of Rs.4,20,000/- between 17/7/2005 and 21/4/2007 to the opponent and the opponent has given the receipts of the payment received.  Despite of the said fact the opponent has not registered an agreement in favour of the appellant, as also he has not handed over possession of the flat.  Not only this, the opponent has not appeared before the forum below to prove his case despite of service from the forum and the District Consumer Forum proceeded ex parte in the case.

The behavior of the opponent before the forum below shows the defiant attitude of the opponent to the due process of law.

In Lucknow Development Authority V/s.M.K.Gupta (1994) 1 SCC 243 it is held as under:-

-It attempts to remove the helplessness of a consumer which he faces against powerful, business, described as, ‘a network of rackets’ or a society in which, producers have secured power to rob the rest and the might of public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked.

Here is a case where the appellant has booked a flat, paid an amount 90% of the consideration, still the opponent has not executed an agreement for sale and handed over the possession to the appellant.  The flat is booked in the year 2005 and possession of the flat was to be handed over in the year 2007.  Till today an amount of Rs.4,20,000/- is lying with the opponent. In last three years the prices of the real estate have increased nearly twofold. The appellant is homeless, even though he has invested Rs.4,20,000/-.  In view of the aforesaid facts, the interest directed by the forum below is not just and fair.  Considering the increase in the real estate prices and the increase in the price index, we observe that interest @ 18% p.a. will be fair and just.  Action of the opponent in non delivery of the possession by the respondent to the appellant put the appellant to a mental agony and torture.  Forum below has awarded an amount of Rs.5000/- for mental torture, mental agony.  We are of the opinion that the amount awarded by the forum below for mental agony is meager one and it will be appropriate if we award an amount of Rs.25,000/- for the mental agony and torture as after investing his hard earned money, he is still homeless.  By remaining absent before the forum below the opponent tried to protract the litigation. Taking into consideration the behavior of the opponent before the forum below and before us, we also award cost of Rs.25,000/- of the litigation.

In view of the aforesaid legal and factual position we modify the order of the forum below and pass the following order:-

                                                ORDER

1.     Appeal is allowed.

2.     The opponent should return the amount of Rs.4,20,000/- paid by the appellant/complainant with interest @ 18% p.a. from the date of receipt of the amounts.

3.     The appellant shall pay an amount of Rs.25,000/- instead of Rs.5000/- granted by forum below for mental agony as compensation and shall pay cost of Rs.25,000/- of litigation.

4.     Copies of the order be furnished to the parties.