Per Hon’ble Mr.S.R.Khanzode, Presiding Judicial Member
By this appeal, appellant- M/s.Mangalmurti Constructions and its partner-Mr.K.R.Tiwari-original opponents (herein after referred as ‘builder’) takes an exception to an order dated 20/06/2009 passed in consumer complaint no.289/2007, Mr.Sunil Gopal Kirloskar (herein after referred as ‘complainant’) v/s. M/s.Mangalmurti Constructions and another; by District Consumer Disputes Redressal Forum, Thane. It is the case of alleged deficiency in service on the part of the builder for not handing over the possession of flat agreed to be purchased as per the agreement dated 25/04/2003. It is the case of the complainant that the builder demanded more amount than what was agreed and refused to give him the possession unless that demand was met. Seeing this, a consumer complaint was filed claiming relief of compensation and refund of consideration of `3,51,572/- along with interest @ 21% p.a. and also to return the cheques illegally obtained from the complainant, claiming further compensation of `2 lakhs towards mental torture and `20,000/- as costs. Forum partly allowed the consumer complaint and directed builder to refund consideration of `3,51,572/- along with interest @ 9% p.a. w.e.f. January 2004 till passing of the impugned order and if said amount is not paid within 30 days there from then to carry further additional interest of 3% p.a. till its realization. Compensation of `25,000/- towards mental torture and `10,000/- as costs was also awarded. Feeling aggrieved thereby this appeal is preferred.
Heard both the parties. At the time of argument it is submitted on behalf of the appellant that they are willing to comply with the impugned order but since the disputed flat has a charge of Financial Institution from whom the complainant had taken a Housing loan i.e. from LIC Housing Finance Ltd. and since as per the statement obtained as on 09/08/2012, `9,31,593.57ps. were found due towards the housing loan taken by the complainant –Mr.Sunil Gopal Kirloskar, the amount payable under the impugned order be directed to be paid for and on behalf of the complainant to the said Financial institution in discharge of their monetary obligation towards the compliance of the impugned order. They filed pursis accordingly dated 28/08/2012. It may not be out of place to mention here that earlier it was informed that the matter was already settled and both the parties would file a pursis incorporating the above referred suggestion; it was ultimately informed that no such pursis could be filed and no settlement was possible. Appellant under these circumstances prays molding of the relief in terms referred earlier.
Since the contest is limited only to the aspect of moulding the relief on the aforesaid terms by way of settlement of dispute and no contest is made on the merit as far as their direction to refund the amount of consideration and compensation and costs awarded; we concentrate ourselves on this aspect only.
It is revealed from the record as an undisputed position that the amount of consideration directed to be refunded is the one directly received as per instructions of the complainant from the financial institution by the builder for an on behalf of the complainant. For one or other reason the transaction could not get completed and, therefore, the complainant insisted for refund of consideration along with interest, and compensation for mental torture and costs, supra. Satisfied with the relief granted, the complainant did not prefer any appeal and, thus, acquiesced with the said order.
In settling the dispute we find it just and proper to mould the relief in terms the appellant/builder is now asking for. If such moulding is not carried out then on recovery of those amounts from the builder as per the impugned order, if the complainant fails to pay the same towards the outstanding dues of the financial institution; the interest of other party involved viz. builder would be prejudiciously affected since the flat in question would continue to remain under the charge credited for the house loan taken by the complainant. No doubt even after making the payment of the amounts as found due under the impugned order entirely towards the outstanding dues of the house loan, it may be that, the house loan would not get discharged entirely and, thus, in those circumstances to get remove the charge on the property, the complainant may be required to pay the remaining amount or in an anxiety to get the flat released from the charge and make it free of encumbrance, the builder may opt to even pay that amount which would be a non gratuitous act on the part of the builder and, therefore, such payment could be recovered from the complainant. But we are not at present concerned with the same. In equity it would be just and proper to mould the relief as prayed so that builder would get discharge from its liability to comply the impugned order and, simultaneously, would get relief since the burden on the charge over the flat in question is reduced. Therefore, we hold accordingly and pass the following order:-
ORDER
1. Appeal is partly allowed.
2. Impugned order stands confirmed. However, since the disputed flat is under encumbrances of the Financial Institution viz. LIC Housing Finance Ltd. and since the consideration which is directed to be refunded was received directly from the said Financial Institution for and on behalf of the complainant to the builder, the amount due ( as per statement dated 09/08/2012 total dues are `9,31,593.57) under the impugned order may be directly credited to the LIC Housing Finance Ltd. for and on behalf of the complainant and, thereupon, it shall be construed as a valid discharge from the liability to pay the amounts under the impugned order to the complainant by the builder.
3. In the given circumstances, both the parties to bear their own costs.
Pronounced on 20th September 2012.
