Per Mr.S.R.Khanzode, Presiding Judicial Member

These two appeals arises out of one and the same order and involve same facts and common question of law and, therefore, are disposed of by this common order.

Complainant Mrs.Naushaba Ashfaque Nadkar (Appellant in First appeal no.765/10 and respondent in A/600/10, herein after referred as the ‘complainant’) alleged to have purchased a flat bearing no.303 having area of 726 sq.ft. for a total consideration of `14 lakhs. She paid `6 lakhs by cheque as a part consideration and rest of the consideration was agreed to be paid at the time of taking possession of the flat.  The transaction is witnessed by an agreement dated 14/7/2005.  It is alleged by the complainant that though she was willing to pay the balance consideration, opponents- M/s.R. K. Developers and its partners (respondent in First Appeal no.765/10 and appellant in A/600/10, herein after referred as the ‘opponents’), however, failed to hand over the possession of the flat and, therefore, she filed a consumer complaint bearing no.232/2007 against the opponents. The Opponents denied the entire transaction.  Upholding the case of the complainant, the forum, by an impugned order, was pleased to direct refund of consideration of `6,00,000/- along with interest @ 9% p.a.  Feeling aggrieved thereby, opponents preferred Appeal no.600/10 and since relief of possession is not granted, complainant preferred appeal bearing no.765/2010.

Heard both the parties. Perused the record.

At the outset it may be mentioned that the document of Agreement of sale dated 14/7/2005 is not in dispute, in the sense that the opponent admits execution thereof.   But, according to them, husband of the complainant had purchased the flat in the same building namely Al Kasar Ramzan.  They had no direct transaction with the complainant.  From the husband of the complainant `6 lakhs were taken as a loan, which was paid to opponents from the account of one  Latifa Kasim Nadkar.  Said loan was refunded back by the opponents and, thereafter, this false consumer complaint is filed.  Opponents also deny the receipt of consideration of `6 lakhs paid towards the purchase of the flat, supra.  The receipt is duly established by the complainant and it corroborates the agreement of purchase of flat, supra.

The opponents filed an affidavit of one Shah Alam Nisar Ahmed dated 25/7/2007 to the effect that `6 lakhs loan amount was refunded back to the husband of complainant, namely, Ashfaque Nadkar.  In his affidavit said witness further made a statement that while receiving `6 lakhs in cash, said Ashfaq Nadkar also told them that money was advanced in his wife’s name and he would get appropriate receipt from his wife and also return the agreement on next date.  To which agreement he was referring is not made clear.  The transaction in question even according to statement made by opponent in their written version nowhere the name of wife appears particularly, in respect of receiving of the amount of `6 lakhs as a loan. Said amount said to have been received from husband of the complainant through a cheque issued from the account of one Latifa.

Furthermore, this affidavit does not establish any link or nexus with the Agreement of sale in question.  Document on record particularly agreement speaks categorically about the sale of flat transaction between the complainant and opponents.  Opponents miserably failed to discharge the burden on them to establish that the transaction in fact had not taken place and the document i.e. Agreement of sale and the receipts are fabricated documents or false documents.  Under the circumstances, case of the complainant needs to be accepted.

Original opponent no.1 and appellant in First Appeal no.600/2010, namely, M/s.R.K.Developers is described by the complainant as partnership firm.  Opponents submitted that it is a proprietary firm of opponent nos.2&3.  However, in the appeal memo they have described themselves (original opponent no.1) as a partnership firm and, therefore, their such claim about status of original opponent no.1 deserves to be dismissed.

Since we are inclined to grant claim to remove deficiency in service in respect of handing over the possession of the flat and considering escalation of the prices of the flats and the fact that entire consideration which is agreed to be paid, is yet to be paid, we find no reason to grant any compensation separately either on account of alleged deficiency in service or compensation of `70,000/- and damages of `5 lakhs, as claimed. It may be further noted that though damages of `5 lakhs, supra, are claimed, the complainant failed to adduce any evidence to substantiate the same.  Further, the Consumer forum, if at all, can award compensation not the damages, for alleged breach of contract.  No case for compensation for mental torture, harassment is established and in light of circumstances stated above, there is no need to grant separate compensation on that count. Except filing one document of Leave and License which is also not tendered in evidence as per provisions of section 13(4) of Consumer Protection Act, 1986, no evidence is adduced by the complainant to justify compensation claim of `70,000/-.

          Receipt of consideration of `6 lakhs out of `14 lakhs agreed, is well established from the material placed on record.  Admittedly, possession of the flat is not delivered to the complainant though complainant was/is willing to pay balance consideration of `8 lakhs, which was agreed to be paid at the time of possession.  Deficiency in service on the part of the opponent is alleged on this count.  Forum while passing impugned order did not take into consideration this vital aspect.  Reasoning given in para 5 of the impugned order is not at all convincing in view of the fact that execution of the agreement is not in dispute.  Forum erred in not granting relief of possession of flat to the complainant.  We, therefore, find that impugned order needs to be substituted with modified order.  We hold accordingly and pass following order:-

                                                ORDER

First Appeal no.600/10 filed by opponents/builder stands dismissed.

First appeal no.765/10 is allowed. 

Impugned order dated 01/04/2010 is set aside.

Opponents/builder do hand over possession of flat no.303 having area of 726 sq.ft. as per agreement dated 14/7/2005 to the complainant after having received balance consideration of `8 lakhs from the complainant, which shall be paid within 45 days from the receipt of this order. 

In the given circumstances both the parties to bear their own cost.

Copies of the order be furnished to the parties.