ANIL KUMAR TARACHAND JAIN & 2 ORS. vs M/S. SWAN MILLS LTD

This appeal has been filed by the appellants against the order dated 14.2.2013 passed by the learned Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ''the

State Commission'') in Consumer Complaint No. CC/12/339 - Anilkumar Tarachand Jain Ors. Vs. M/s. Swan Mills Ltd. by which, complaint was dismissed.

Brief facts of the case are that complainants/appellants purchased Apartment No. 1501 from OP/respondent for a sum of Rs.84,82,250/- vide agreement for sale dated 15.6.2007. Total sale consideration was paid. As per agreement, possession was to be given on 31.3.2009 whereas; possession was given on 4.2.2011 after delay of about 22 months. It was further submitted that as per clause 7 of the agreement, OP was liable to pay interest @ 9% p.a. for delayed period and inspite of repeated requests, interest has not been paid. Alleging deficiency on the part of OP, complainants filed complaint before State Commission which was dismissed by learned State Commission at initial stage.

Heard learned Counsel for the parties finally at admission stage and perused record.

Learned Counsel for the appellant submitted that inspite of proof of delayed possession and clause 7 providing payment of interest on account of delayed delivery of possession, learned State Commission has committed error in dismissing complaint at initial stage, hence, appeal be allowed and impugned order be set aside and matter may be remanded back to learned State Commission to proceed in accordance with law. On the other hand, learned Counsel for the respondent submitted that as no protest was made for a period of about 18 months, order passed by learned State Commission is in accordance with law; hence, appeal be dismissed.

Perusal of record reveals that as per agreement dated 15.6.2007, possession was to be given by OP on or before 31.3.2009 with six months grace period whereas possession was given on 4.2.2011 meaning thereby, there was delay of about 22 months in giving possession. As per clause 7 (1) of the agreement, OP was liable to pay interest @ 9% p.a. for delayed period of delivering possession subject to some exceptions provided in that clause. Learned State Commission observed that complainant did not make any statement covering exceptions regarding delayed possession so there was no deficiency. Apparently, this observation is contrary to law because OP was required to prove that on account of exceptions in clause 7 (1) of the agreement, OP was not liable to pay interest. Learned Counsel for the respondent could not satisfy that complainant was required to prove that his case does not fall within exception provided under aforesaid cause.

Learned State Commission also observed that as no grievance was made for 18 months, there was no deficiency. Admittedly, complaint has been filed within period of limitation and complainant has alleged in his complaint that he approached OP from time to time for payment of interest for the delayed period. In such circumstances, there was no occasion for the learned State Commission to dismiss complaint at initial stage rather complaint should have been admitted and notices should have been issued to OP to rebut allegations of the complaint.

In the light of aforesaid discussions, impugned order is liable to set aside.

Consequently, appeal filed by the appellant is allowed and impugned order dated 14.2.2013 passed by learned State Commission in Complaint No. CC/12/339 - Anilkumar Tarachand Jain Ors. Vs. M/s. Swan Mills Ltd. is set aside and matter is remanded back to learned State Commission to decide complaint after affording OP opportunity to file written statement and to lead evidence.

Parties are directed to appear before State Commission on 28.8.2015.