Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member

          This is an appeal filed by org. opponent No.2 against the judgement and award passed by District Consumer Forum, Mumbai Suburban in consumer complaint No.13/2004 decided on 09/05/2008.  By the said judgement and award, District Consumer Forum directed the org. opponent No.2 to execute agreement of sale in favour of the complainant within 15 days from the date of order and also to mention in the agreement of sale the exact date of giving possession of the flat and also directed opponent No.2 to pay compensation of `50,000/- and cost of `5,000/-.  As such org. opponent No.2 has filed this appeal.

          We heard Mr.A.V. Patwardhan, Advocate for the appellant and Mr.Y.C. Naidu, Advocate for the respondents.

          We are finding that the respondents had booked flat No.502 in the proposed building ‘Shivanjali’ being developed by opponent No.2.  Total cost of flat was `40,25,000/- and that flat was to be divided into 502A and 502B.  The complainants paid initial amount of `5,50,000/- by cheque on 12/12/1992 and then paid `25,000/- to the Opponent No.1 and thereafter till 29/06/1998 they paid total amount of `19 Lakhs to opponent No.2.  However, despite receipt of this amount, opponent No.2 avoided to execute agreement of sale in favour of the complainants.  Complainants even thereafter got sanctioned `12 Lakhs from the Financial Institution but, since M/s.A.G. Developers/opponent No.2 had not executed an agreement of sale, complainants could not procure sanctioned loan from the Financial Institution.  Thereafter, they sent notices through their Advocate initially on 15/01/2003 and later on 12/05/2003.  Despite notice, opponent No.2 did not execute agreement of sale in their favour and it was found by the complainants, somewhere in July 2003 that flat No.502 was appended to 501.  This was objected by the complainants and since they had objected this fact, opponent No.2 did not execute agreement of sale in their favour and left both the complainants to suffer.  Therefore, complainants filed consumer complaint claiming possession of the flat, damages of `1 Lakh, expenses of `45,000/- and filed voluminous documents in their possession.

          Opponent No.1 was not served by the complainant.  So, complaint was dismissed as against opponent No.1.  Opponent No.2 filed written version and denied the allegations made by the complainants.  According to the opponent No.2 complainants were in arrears of amount.  They had not paid full consideration and that is why he could not construct the flat.  He asserted that at the instance of other partners, he had appended portion of flat No.502 to flat No.501.  He pleaded that he was not guilty of deficiency in service of any kind and prayed for dismissal of complaint.  Opponent Nos.5&6 also prayed that they are not necessary parties and they have been impleaded unnecessarily in this complaint and prayed that complaint should be dismissed with costs.

          Upon hearing Advocates for the parties, District Consumer Forum found that complainants had already paid more than 20% of the total consideration to the opponents.  According to the District Consumer Forum they had totally paid `19 Lakhs by cheques besides some amount in cash and still, opponent No.2 has not executed agreement of sale in their favour as is mandatory under the Maharashtra Ownership of Flats Act, 1963.  So, opponent No.2 was surely guilty of deficiency in service and unfair trade practice.  Ultimately, District Consumer Forum allowed the complaint partly and directed the opponent No.2 to execute agreement of sale within 15 days in favour of the complainants in respect of flat No.502 and also directed to pay `50,000/- as compensation and `5,000/- as cost.  As such, org. opponent No.2 has filed this appeal.

          We are finding that the order passed by the District Consumer Forum partly allowing the complaint is just, proper and it is sustainable in law.  When the complainants paid total amount of `19 Lakhs in cheques besides some cash amount, it was the duty of the appellant to execute agreement of sale in their favour.  Moreover, we are finding that M/s.A.G. Builder is unable to continue with the construction because of irregularities he had committed in making construction and the Corporation has taken strong objection to the appellant carrying on construction without permission and it is unlikely that the appellant would get completion certificate and occupation certificate by the way he had constructed the building and left it in incomplete stage.  But, then, since the respondents had paid more than 20% amount of the total consideration of the flat i.e. `19 Lakhs, it was the duty of the appellant to execute agreement of sale and to register it in favour of the complainants.  So, this was clearly a contractual as well as statutory obligation on the part of the appellant and in not carrying out the said obligation he was surely deficient in service and guilty of unfair trade practice and therefore, we are finding that the order passed by the District Consumer Forum in favour of the complainants is just, proper and it is in conformity with the provisions of the Maharashtra Ownership of Flats Act, 1963 and the said order does not call for interference on any ground whatsoever.  We are therefore finding no substance in the appeal preferred by the org. opponent No.2.  Hence, we pass the following order :-

                   -: ORDER :-

1.       Appeal stands dismissed.

2.       Appellant to bear his own cost and to pay `5,000/- as cost to the respondents/org. complainants.

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