Per Mr.S.R.Khanzode, Hon’ble Judicial Member

This appeal takes an exception to an order dated 25/02/2009 passed in consumer complaint no.6/2008 Smt.Gulabi Gadia @ Padma Gadia v/s. Siddhivinayak Properties (Sanashree Emerald) and another passed by Additional District Consumer Disputes Redressal Forum, Pune. 

Undisputed facts are that appellant/original complainant (herein after referred as ‘complainant’) booked a row house constructed and developed by respondent/original opponent no.1 /Siddhivinayak Properties (herein after referred as the builder) and, on 10/04/2004, paid them `1,00,000/- by way of part consideration.  However, the builder instead of executing an agreement and to complete the transaction with the complainant, transferred said row house to respondent/opponent no.2-Mr.Sohil Ahmed Ismail Mukadam (hereinafter referred as ‘subsequent purchaser’) and claimed  that since the complainant failed to make further payments, it was forced to cancel the booking.  Therefore, consumer complaint was filed.  Dispute stood settled in favour of the complainant by partly allowing the complaint and thereby directing the builder to refund an amount of `1 lakh along with interest @ 9% p.a.  However, not satisfied with the same, complainant preferred this appeal.  It appears that original opponents-builder did not prefer any appeal.

At the time of arguments, we heard Ld.counsel Mr.S.B.Rao appearing for the appellant (original complainant) and both the respondents and counsel for respondent no.1 remained absent.

In the instant case, it is revealed from the record that after making initial payment of `1 lakh, the builder was supposed to execute an agreement and also to supply necessary documents to enable the complainant to raise the loan to make the payment of balance of consideration.  Builder failed to do so and that is the reason complainant could not raise the loan or made further payment.  Under the circumstances, submission of the builder that it made demand by letters dated 17/05/2004 and 02/06/2004 from the complainant to make the payment of balance of consideration is nothing but sheding crocodile tears.  Builder is to be blamed for non compliance and for failing in its obligation to execute an agreement and supply necessary documents to the complainant to enable him to raise the loan.  The builder cannot be allowed to take benefit of its own wrong. Therefore, alleged unilateral cancellation of booking is arbitrary and illegal.  It will not affect the transaction in question and, thus, since the builder failed to carry out the transaction and hand over possession of the row house, there is deficiency in service on the part of the builder. 

Consideration paid was already directed to be refunded along with interest @ 9% p.a.  However, relief of possession was not granted and rightly so, since the property is in possession of subsequent purchaser.  Consumer Fora cannot grant any relief of declaration such as to declare the transaction between the builder and subsequent purchaser is illegal.  It is a domain of Civil Court and for which the complainant has to bring a suit for specific performance.  Civil Court would adjust the equities between the first purchaser i.e. complainant and the subsequent purchaser.

However, since the builder is to be held responsible for frustrating the contract and failed to deliver the possession of the row house and thereby deprived the complainant to acquire his own house, it would be proper to award interest @ 18% p.a. instead of 9% p.a. awarded by the Forum.  Considering the escalation in prices of the properties to grant interest at such rate would be justifiable and would meet the ends of justice.  Except this modification, rest of the impugned order need not be disturbed.  We hold accordingly and pass the following order:-            

                                                ORDER

1.     Appeal is partly allowed.

2.     Impugned order is maintained except the rate of interest granted.

3.     Builder i.e. respondent/original opponent no.1 is directed to refund `1 lakh along with interest @ 18% p.a. w.e.f. 10/04/2004 till its realization to the appellant/original complainant. 

4.     Dismissal of consumer complaint as against subsequent purchaser –respondent no.2/opponent no.2 is confirmed.

5.     In the given circumstances, both the parties to bear their own costs.

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