Per Shri S.R. Khanzode – Hon’ble Presiding Judicial Member:
(1) This appeal takes an exception to an order dated 26.11.2008 passed in Consumer Complaint No.104/2004, Smt.Vandana Manohar Dicholkar V/s. Shri Shashikant Umakant Malve & Ors., by District Consumer Disputes Redressal Forum, Additional Mumbai Suburban (‘Forum below’ in short).
(2) This appeal is preferred by original Opposite Party No.1 – Shri Shashikant Umakant Malve and Original Opposite No.4 – Shri Ravindra Tarachand Malve. It may be mentioned that Appeal No.1012/2009 preferred by original Opposite Party No.2 – Shri Vishnu Laxman Surve, was dismissed for default on 16/06/2010 and it was ordered to be restored as per conditional order passed in Misc.Application No.363/2010 dated 02/08/2010. Since, condition of payment of costs which was sine quo non to restore the appeal was not complied with, said appeal remains dismissed for default. Opposite Party No.3 – Lokpriya Housing Development Pvt. Ltd. had filed Appeal No.1302/2009, but, the same was not entertained as barred by limitation since the application for condonation of delay in the said appeal stood dismissed.
(3) Undisputed facts are that, Respondent/original Complainant – Smt.Vandana Manohar Dicholkar, hereinafter referred to as the ‘Complainant’ is the promoter/member and flat allotted from proposed Saraswati Co-op. Hsg. Society Ltd., of which Appellant/original Opposite Party No.4 – Ravindra Tarachandra Malve, hereinafter referred to as the ‘Chief Promoter’, was the Chief Promoter of the said Society. A tri-parte agreement dated 18/09/1995 between the Complainant – Smt.Vandana Manohar Dicholkar, Chief Promoter – Shri Ravindra Tarachand Malve and Opposite Party No.3 – Lokpriya Housing Development Pvt. Ltd., (hereinafter referred to as the Developer for the sake of reference only) had taken place. One of the stipulations under the said agreement appearing at internal page no.14 of the said agreement reads as under:
“If the possession of the flat is delayed further except for the reasons other than those mentioned above the CHIEF PROMOTER shall be liable to refund to the MEMBER the amount received form the MEMBER by them with simple interest at 9 per cent P.A. from the date the CHIEF PROMOTER received the same till the date and the amount and interest thereon is repaid. Till the entire amount and interest thereon is refunded by the CHIEF PROMOTER to the MEMBER they shall subject to prior encumbrances if any and be charged on the said portion of land as well as the construction or building in flat is situated.”
(4) Chief Promoter mentioned in the agreement is Opposite Party No.4 – Ravindra Tarachand Malve.
(5) Seeing that the construction is not completed as stipulated, the Complainant exercising her option as per the agreement referred above, by letter dated 26.02.2002 claimed refund of the amount. Said letter was addressed to Opposite Party No.3 – Developer, who responded acknowledging the amount received and agreed to refund amount of Rs.3,04,173/- on or before 03.07.2002. Said promise was not kept and therefore, this consumer complaint was filed. Initially, the Chief promoter – Ravindra Tarachand Malve was not impleaded as one of the Opposite Parties, but later on in the year 2004 he was impleaded as one of the Opposite Parties. He did not dispute the contractual terms of the agreement dated 18.09.1995. Forum below accepting the contention of the Complainant for refund of the amount partly allowed the consumer complaint directing refund of the amount along with interest @9% per annum and it was directed that all the Opposite Parties, i.e. Opposite Party Nos.1 to 4 are jointly and severally liable to pay said amount along with compensation of Rs.50,000/- and costs of Rs.1,000/-. Feeling aggrieved thereby Opposite Parties filed separate appeals, supra.
(6) We are concerned here only with Appeal filed by original Opposite Party Nos.1 and Opposite Party No.4.
(7) Heard both sides. Perused the record.
(8) Opposite Party No.1 – Shri Shashikant Umakant Malve did not accept any liability in respect of claim made in the consumer complaint. As per the agreement referred above, there is no liability in respect to refund of the amount casts upon Opposite Party No.1 – Shashikant Umakant Malve. It is only Opposite Party No.4- Ravindra Tarachand Malve, Chief Promoter is liable to pay the said amount since instead of going with the contract to get possession of the flat the Complainant opted claiming refund of consideration paid, as stipulated. We do not want to go into the other aspects of the case considering that now the Society is registered and assumed its management. Relating to grievance to get completed the other items of construction etc., the interse relationship between the Complainant and the Chief Promoter is that of promoter and Chief Promoter, but, since as per the tri-parties agreement dated 18.09.2005, the Complainant wanted to refund back the amount and treated the said agreement cancelled for going with the construction and since Opposite Party No.4 as a Chief Promoter failed to refund the amount i.e. consideration along with stipulated interest as agreed, he is guilty of deficiency in service within the meaning of Section 2(1)(g) of the Consumer Protection Act, 1986.
(9) Therefore, we find that Forum below rightly awarded interest @ 9% per annum as per the contractual term, supra. Only aspect which needs consideration is that the liability cannot be fastened on Appellant – Opposite Party No.1 in the light of the discussion held above and particularly, considering the contractual terms, supra. Therefore, appeal is to be allowed only in respect of liability which is erroneously fastened on Appellant/Opposite Party No.1 – Shashikant Umakant Malve. We hold accordingly and pass the following order:
O R D E R
(i) Appeal is partly allowed.
(ii) Impugned order is partly modified absolving Appellant/original Opposite Party No.1 – Shri Shashikant Manohar Dicholkar from the liability to refund money.
(iii) Except the above modification, rest of the order stands confirmed.
