Per Smt.S.P.Lale, Hon’ble Member

             By this common judgement we are disposing off these three appeals involving identical facts and common question of law. These appeals are directed against the common order dated 29/4/2009 passed by Additional District Consumer Disputes Redressal Forum, Thane (Navi Mumbai) in consumer complaint nos.205/2008, 206/2008 & 02/2009, whereby forum below directed O.Ps. jointly and severally to refund an amount of consideration received from the complainants together with interest @ 9% p.a. and to pay compensation of `50,000/- and cost of `5,000/- to each of the complainant. Being aggrieved by the said order O.Ps have filed present appeals.

             The complainants booked the flats in the building to be constructed by the O.Ps in the name of ‘Orient Avenue’. Complainants paid following amounts to the O.P.

O.Ps accordingly duly issued receipt of payment to the complainants. According to complainants they have paid more than 20% of the total consideration amount towards the said flats to the O.Ps and complainants also paid additional amount towards the stamp duty and registration charges.  However, O.Ps even after accepting more than 20% of consideration amount, failed to execute Agreement of Sale in favour of the complainants. 

Complainants further stated that complainants on various occasions visited the office of the O.Ps for making enquiries about progress of the construction but O.Ps gave vague reply to the complainants and kept them waiting for an hour for the meeting.  Complainants further stated that till date they had paid huge amount to the O.Ps and since no agreement was executed by the O.Ps in favour of the complainants, complainants did not pay the balance amount as demanded by the O.Ps. According to complainants this is a deficiency in service and complainants left with no option but to approach Consumer Forum for refund of consideration.  Therefore, complainants filed consumer complaints before this Commission.

O.Ps filed its written statement and pleaded that the complainants have not produced any evidence to show that they had deposited or made actual arrangement for payment of any stamp duty and registration charges. On the contrary, despite repeated requests and reminders by the O.Ps, complainants have failed and neglected to procure the agreement and get the same registered.  It further pleaded that the O.Ps vide its advocate’s notice in August 2008 called upon complainants to pay balance amount within 15 days from receipt of said notice failing which, booking of the said flats shall be terminated.  According to O.Ps complainants failed to pay the balance amount. In other words, oral contract between the parties was duly terminated vide O.Ps advocate’s notice in the month of August 2008. 

O.Ps further pleaded that O.Ps have duly terminated the said agreement and as per said termination complainants are not entitled to seek any relief in the present complaints and, finally, prayed for dismissal of complaint.

Heard Mr.S.B.Prabhawalkar-Advocate for the appellants and Ms.Sharda Pinjari-Advocate for the respondents.

We are finding that the order passed by the forum below is appearing to be just, proper and there is no reason to interfere in the order passed by the District Consumer Disputes Redressal Forum.  Respondents have booked the flats with the appellant and paid more than 20% of consideration amount to the appellants. Appellants have failed and neglected to execute an Agreement of Sale and also failed to give possession of the flats to the respondents. As per provision laid down in section 4 of Maharashtra Ownership Flat Act 1963, builder/promoter before accepting advance payment or deposit which shall not be more than 20% is duty bound to execute an Agreement of sale and register the same.  Appellants deliberately avoided the respondents and failed to execute Agreement of Sale and also failed to give possession of the flats to the respondents. Appellants have taken a defence that respondents have not paid the balance amount and the agreements were terminated by the appellants. However, appellants have only submitted that they have terminated the agreements and failed to produce any documentary evidence and failed to refund the amount of consideration accepted by the respondents.

This is a clear cut case of deficiency of service on the part of the appellants.  Respondents have invested their hard earned money with the appellants for purchase of the flats.  Now it is not possible to get the possession of flats as construction at the site of the appellants is stopped.  Therefore, forum below rightly recorded in its finding and ordered for refund of amount together with interest and compensation.  In the totality of the circumstances, we are finding that the forum below rightly decided the complaints and we are finding no substance in the appeals preferred by the appellants.  In the result, we pass following order:-

                                                ORDER

Appeal nos.1412/2009, 1413/2009 & 1414/2009 stands dismissed  

with no order as to costs.

Copies of the order be furnished to the parties.