State Consumer Disputes Redressal Commission
Smt Radhakumari R Iyer vs Shantisadan Chs Ltd on 1 November, 2017
A/15/788&A/15/886
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Appeal No. A/15/788
(Arisen out of order dated 31/03/2015 passed in complaint No.71/2012 by District
Raigad)
Smt.Radhakumari R. Iyer,
R/o. Radha Sadan,
Shri Sidhi Ganesh CHS Ltd.,
R.No.5/9/XI, Sector-2, Airoli,
Navi Mumbai - 400 708. ...........Appellant (s)
Versus
Shantisadan CHS Ltd.
Through its Chairman
Shri K.C. Sharma
At Chikhale Village,
Tal. Panvel, Dist. Raigad
And corresponding address
At Trupti, Block No.3, 1st floor,
Station Road, Govandi,
Mumbai - 400 088. ............Respondent (s)
Appeal No. A/15/886
(Arisen out of order dated 31/03/2015 passed in complaint No.71/2012 by District
Raigad)
Shantisadan CHS Ltd.
Through its Chairman
Shri K.C. Sharma
At Chikhale Village,
Tal. Panvel, Dist. Raigad
And corresponding address
At Trupti, Block No.3, 1st floor,
Station Road, Govandi,
Mumbai - 400 088. ...........Appellant (s)
Versus
Page 1 of 5
A/15/788&A/15/886
Smt.Radhakumari R. Iyer,
R/o. Radha Sadan,
Shri Sidhi Ganesh CHS Ltd.,
R.No.5/9/XI, Sector-2, Airoli,
Navi Mumbai - 400 708. ............Respondent (s)
BEFORE:
Justice A.P. Bhangale PRESIDENT
S. K. Kakade MEMBER
For the Smt.Mughda Patil, Advocate for
Appellant: appellant in A/15/788 & for respondent
in A/15/886.
For the Shri V.B. Mahadik, Advocate for
Respondent: appellant in A/15/886 & for respondent
in A/15/788.
ORDER
Per Justice Mr.A.P. Bhangale, Hon'ble President
1. These cross appeals are directed against order dated 31/03/2015 passed by the District Forum, Raigad partly allowing consumer complaint No.71/2012 and directing the OP to complete construction of flat no.2 admeasuring 1015 sq.ft. in Building no.13 at S.No.83/1,2,4 & S.No.146/4 and 6 at Village Chikhale, Taluka Panvel, District Raigad upon acceptance of the balance sum of Rs.70,500/- and to execute the Sale/conveyance within 30 days or if not possible, pay to the complainant a sum of Rs.3,62,000/- together with interest at the rate of Rs.6% per annum from the date of payment made till realization. In default interest rate was enhanced to 9% per annum with effect from 13/07/2002. Compensation was ordered at Rs.Three Lakhs for mental and physical harassment inclusive of Costs payable within one month of the order dated 31/03/2015.
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2. Facts which are material for deciding this appeal are as under:
Complainant had booked the flat no.2 admeasuring 1015 sq.ft. in Building no.13 at S.No 83/1,24 and S.No.146/4 and 6 at Village Chikhale Taluka Panvel, District Raigad for consideration of Rs.4,32,500/- out of which advance payment in the sum of Rs.3,62,000/- was made under receipts issued from the OP-Society. On or about 27/09/2005 payment of Rs.2,79,692/- was demanded by the OP-society. On the ground that the demand was not complied the OP-society cancelled the booking made despite readiness and willingness of the complainant to pay the balance sum due Rs.70,500/-.
3. The appellant contested the complaint contending that the Complainant did not participate in the Tripartite agreement with the Builder who was assigned the Contract of Construction and failed pay the contributions as demanded from the appellant-Society.
4. Both the parties had filed documents and affidavits in support of their rival contentions and also replies/counters. After considering the material before it, the Learned District Forum, Raigad came to pass the impugned order. Aggrieved thereby, the appellants are before us.
5. We have heard the learned counsel for the appellant and learned Advocate for the respondent in both appeals. With the help of both we have gone through the material on record.
6. The learned counsel for the appellant-society first submitted that the appellant-society could not at all be held blameworthy of any deficiency in Page 3 of 5 A/15/788&A/15/886 service or unfair trade practice since all that the Society had done was to construct the Building and called for contributions from the flat purchaser members of the Society.
7. The representative of the Society sought to submit that in fact it was the Complainant who was responsible for non-payment of the contributions demanded and therefore was not entitled to the relief as granted.
8. We have carefully considered rival contentions. We find that the society had undertaken to construct the building, construct the flats and to hand over flats completed for the consideration already agreed at fixed rate of Rs.4,32,500/- out of which substantive portion of consideration in the sum of Rs.3,62,000/- was already paid. Balance consideration payable was only in the sum of Rs.70,500/-. It was duty of the society to abide by it's promises made to the flat purchaser having accepted the substantive portion of the consideration.
9. In view of these facts we hold that the Learned Forum below was justified in holding the OP-society liable to accept the balance consideration payable from the Flat purchaser and to complete construction of the flat and hand over possession of the same to the Complainant under appropriate transfer/conveyance. In the event of impossibility of performance of the Contract of Construction alone the complainant was given next option of accepting refund money together with interest as awarded and costs. The appellant-society cannot therefore be allowed to force the second option of accepting refund with interest upon the complainant.
10. Compensation of Rs.Three Lakhs as awarded, however, appears Page 4 of 5 A/15/788&A/15/886 exorbitant. In our view, looking into facts and circumstances of the case, sum of consideration, nature of the case and circumstances and transaction which occurred long back between the flat purchaser and the society, the compensation sum awarded is on higher side. We reduce it to reasonable sum of Rs.One Lakh (Instead of Rs.Three Lakhs) for mental and physical harassment and we quantify litigation cost of Rs.25,000/- payable by the OP- society to the Complainant.
11. In view of this, we partly allow the appeal filed by the OP-Society with the above modification. We confirm the impugned judgment and award with costs quantified at Rs.20,000/- for this appeal to be paid by the OP-society to the respondent-complainant. Appeal filed by original complainant stands dismissed. Copies of the order be furnished to the parties.
Pronounced Dated 1st November 2017.
[ Justice A.P. Bhangale ] PRESIDENT [ S. K. Kakade ] MEMBER Page 5 of 5