Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member
This is an appeal filed by org. opponents against whom the award has been passed by the District Consumer Disputes Redressal Forum, Nashik in consumer complaint No.119/2002 on 26/07/2004. By allowing the complaint of Shri Sharad Sambhaji Bhalerao, District Consumer Disputes Redressal Forum directed the org. opponents to refund amount of `2,13,200/- with interest @ 12% p.a. from 17/04/2000 till actual payment and also directed to pay `3,000/- towards costs. As such org. opponents have filed this appeal.
2. This appeal was filed in 2004 and it was lying unattended. On 05/08/2011 as per policy of this Commission, this appeal was placed before us and we directed issuance of notice to both the parties and notice was made returnable on 30/09/2011. On 23/09/2011 office had issued notices to both the parties. On 30/09/2011 though notices were sent, none appeared and therefore, we perused the impugned order, appeal memo and other papers on record and decided to proceed with the appeal on merits at the stage of admission itself.
3. We are finding that the Shri Sharad Sambhaji Bhalerao/org. complainant and respondent in this appeal had approached Mr.Chandrashekhar Deshmukh, an employee in Public Works Department and his wife Sou.Vaishali Deshmukh and her partner Shri Santosh Dharkar, resident of Nashik for booking flat No.13. They were constructing ‘Swaraj Apartment’ and complainant booked flat No.13 for `2,49,000/-. Complainant paid in all `2,13,200/-. Agreement of sale was entered into between the parties. Possession of the flat was to be given on or before 14/07/2001. But opponents left the construction work in incomplete stage. Complainant had taken loan from the financial institution and he was required to pay interest on the said loan. Since, possession was not given by opponents he sent notice by registered post acknowledgement due on 07/06/2001. Despite notice, possession was not given and therefore, he filed consumer complaint either to get possession of the flat booked by him or to cancel the agreement of sale and refund amount of `2,13,200/- with interest @ 18% p.a. and also claimed `1 Lakh as compensation for mental harassment.
4. Opponent No.1-Mr.Chandrashekhar Deshmukh filed written version and pleaded that for getting cancelled the agreement of sale duly registered, complainant ought to have approached the Civil Court and District Consumer Disputes Redressal Forum has no jurisdiction to cancel the agreement. Opponent No.1 pleaded that his wife Sou. Vaishali Deshmukh and opponent No.2 Mr.Santosh Dharkar were partners and he was not concerned with the booking of flat in Swaraj Apartment building which complainant made with his wife and Mr.Santosh Dharkar-opponent No.2. He therefore pleaded that he was not concerned with the said booking of flat and therefore, complaint should be dismissed with cost.
5. Opponent No.2/Mr.Santosh Dharkar also pleaded that he was prepared to construct the flat and to give possession to the complainant, but he has not paid remaining amount and he had demanded `1,05,000/- from the complainant and since he had not made the payment, he had not given possession of the flat. He therefore pleaded that he is not guilty of deficiency in service and complaint should be dismissed with costs.
6. After hearing both the parties and upon perusing affidavits and documents placed on record, District Consumer Disputes Redressal Forum allowed the complaint and directed refund of `2,13,200/- with interest @ 12% p.a. to the complainant by opponents jointly and severally and also directed to pay `3,000/- as cost of the proceeding. Aggrieved by this order, org. opponents have filed this appeal.
7. In appeal memo, it has been clearly mentioned by the appellants in Para 3 that out of total consideration amount, remaining amount of `35,800/- was to be paid by respondent-Shri Sharad Sambhaji Bhalerao to Saharadarshan Co-op. Housing Society, Chairman Shri Sureshbhai Patel and after paying said amount, Mr.Sureshbhai Patel, Chairman of the said Society was to give possession of the flat to the respondent. This was brought to the notice of Hon’ble District Consumer Disputes Redressal Forum, but District Consumer Disputes Redressal Forum ignored this fact. In para 4 it has been specifically mentioned in appeal memo that Shri Sharad Sambhaji Bhalerao/ respondent herein had taken possession of the said flat on 20/05/2004 by paying remaining amount of `3,580/- plus light bill to Chairman of Saharadarshan co-op. Housing Society and had taken possession of the said flat from Mr.Sureshbhai K. Patel, Chairman. Therefore, appellants were not concerned with the grievance of Shri Sharad Sambhaji Bhalerao when he had filed consumer complaint in the District Consumer Disputes Redressal Forum. According to the appellants, District Consumer Disputes Redressal Forum erroneously held that appellants were guilty of deficiency in service and directed the appellants to refund the amount of `2,13,200/- to the complainant with interest @ 12% p.a. whereas complainant had already taken possession of the said premises from Saharadarshan co-op. Housing Society, Chairman Shri Sureshbhai K. Patel on 20/05/2004 and said Mr.Patel had issued allotment letter of the said flat in favour of the complainant. The appeal memo in Para 6 mentioned that Sou. Vaishali Deshmukh and Mr.Santosh Dharkar had sold whole building to the Saharadarshan co-op. Housing Society, Chairman Shri Sureshbhai K. Patel by Sale Deed dated 01/02/2002 and still, District Consumer Disputes Redressal Forum allowed the complaint against the appellants without any basis.
8. We are finding substance in the appeal memo. We are finding that the complainant had already received possession of the flat No.13 from Saharadarshan co-op. Housing Society on 20/05/2004. Secretary and Chairman of Saharadarshan co-op. Housing Society had given allotment letter in favour of Shri Sharad Sambhaji Bhalerao/respondent herein and it has been mentioned that total amount of `2,78,950/- has been received from the complainant for the said flat No.13 having built-up area of 601 sq.ft. Chairman of Saharadarshan co-op. Housing Society wrote a letter on 05/06/2004 and informed the District Consumer Disputes Redressal Forum, Nashik that they had purchased from Mr.Santosh Dharkar and Sou. Vaishali Deshmukh by registered Sale Deed dated 01/02/2002 said site and while forming co-operative Housing Society on 14/01/2002 they had made Shri Sharad Sambhaji Bhalerao/respondent herein as Member of the Society and that Shri Sharad Sambhaji Bhalerao has been given possession of the flat he had booked as Chairman by him and presently said flat No.A-13 was in possession of Shri Sharad Sambhaji Bhalerao and he was occupying said premises. Therefore, opponents/appellants herein were not concerned with the said building. There is on record at appeal memo ‘Kabja Pawati’ executed by Shri Sharad Sambhaji Bhalerao and also signed by Mr.Sureshbhai K. Patel before the Notary wherein it has been clearly mentioned that Shri Sharad Sambhaji Bhalerao had received possession of the flat No.A-13 having 601 sq.ft. in Saharadarshan co-op. Housing Society from Chairman, Saharadarshan co-op. Housing Society. All these facts are clearly proving that possession was taken by the complainant in respect of said flat from Saharadarshan co-op. Housing Society on 20/05/2004 during pendency of the complaint. This was not brought to the notice of District Consumer Disputes Redressal Forum by the complainant and District Consumer Disputes Redressal Forum allowed the complaint by judgement dated 26/07/2004 after complainant received possession of the flat in question. The District Consumer Disputes Redressal Forum ordered refund of `2,13,200/- by present appellants with interest @ 12% p.a. suppressing the fact that the complainant had already taken possession of the flat from Saharadarshan co-op. Housing Society on 20/05/2004. In the circumstances, on going through these documents on record, we are finding that the judgement and award passed by District Consumer Disputes Redressal Forum against the present appellants is without any substance. The complaint should have been dismissed by the District Consumer Disputes Redressal Forum on finding that the complainant has been put in possession of the flat booked with the appellants by Saharadarshan co-operative Housing Society, who purchased the existing building from these appellants and put the complainant in possession of flat No.A-13 after complainant paid remaining amount of consideration to the Chairman of Saharadarshan co-op. Housing Society. In the circumstances, it appears that the District Consumer Disputes Redressal Forum erroneously allowed the complaint which should have been dismissed for the reasons mentioned above. Hence, at the stage of admission itself, we are inclined to pass the following order :-
-: ORDER :-
1. Appeal is allowed. The impugned order dated 26/07/2004 is quashed and set aside. Consumer complaint No.119/2002 stands dismissed.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 30th September 2011.
