ARADHYA BUILDERS, DEVELOPERS And PROMOTERS vs HARBANSLAL RAMSARAN KHURANA

NONE for the respondents, although duly served.

WE are proceeding to dispose of this appeal at the stage of its admission itself on hearing the learned Counsel for the appellant and on perusal of the material available in the appeal paper book. None is present on behalf of the respondents whom we have issued notice before admission on 11th March, 2003 making it returnable today at our Nagpur Camp. Hamdast was granted to appellants Advocate to serve and postal receipt indicating the transmission of the process to the respondent through post being dated 19.4.2003 has been produced before us. However, as stated, there is no response from him. (For brevitys sake the appellants hereinafter are referred to as Builder and the respondent as Flat Purchaser).

The builders are the appellants who have taken exception to the order dated 3rd January, 2003 passed by Addl. D.F., Nagpur, holding them deficient in rendering services as a builder vis-a-vis the flat purchaser in not handing over the possession within the period as agreed in the contract. So holding the Forum as ordered the builder to refund a sum of Rs. 1,40,100/- received by them from the flat purchaser towards the consideration of the flat with 18 per cent interest per annum plus Rs 200/- as costs.

AS stated the said order is challenged before us in this appeal. On perusal of the impugned order and related material made available, including the pleadings of the parties, we notice that there is no dispute about there being agreement between the parties, whereby builders agreed to sell the flat to the flat purchasers and execution of the agreement, etc. The builders have also admitted having received from the flat purchaser the total consideration of Rs. 1,40,100/-.

BEFORE the Addl. D.F., Nagpur the builders admitted the execution of the agreement on 28th November, 1995, wherein the total consideration agreed is Rs. 1,70,000/- against which the flat purchaser paid Rs. 1,40,100/- and did not pay that balance amount of consideration. It is further stated that repeated demands were made upon the flat purchaser to arrange for balance payment. It is further noticed that date of possession was agreed within 15 months of the execution of the agreement executed on 28th November, 1995 which would mean the date of possession to be in February, 1997.

IT is urged on behalf of the builder that the possession could not be made over to the flat purchaser because there was no full consideration paid within the stipulated period, the learned Counsel for the builder says that specific communication was addressed to the flat purchaser to that effect that the building was complete in all respects and flat was ready for delivery to which no satisfactory response received.

WE, to appreciate merit of aforesaid submission, perused the written statement filed by on behalf of the builders, which is on the page No. 65 onwards in the appeal paper book and we do not find precise pleadings in this respect, i.e., intimation of completion of construction and flat being ready for possession. It would, therefore, be legitimate to infer that although flat purchaser has paid substantial amount of consideration (agreed consideration is Rs. 1,70,000/- and paid consideration is Rs. 1,40,100/-) for the flat and there was no specific offer made to the flat purchaser about the status of construction of the flat as also the possession of the flat.

This would be a fact which will be reflective upon the conduct of the builders. Therefore, taking the reasonable appraisal of the factual aspects obtained in the matter herein, by and large, we find that order of the Addl. D.F., Nagpur for refund of sum of Rs. 1,40,100/- received towards consideration, is reasonable.

HOWEVER there is one point in favour of the builder-O.P., namely the rate of interest of 18 per cent awarded, appears to be on higher side. The builders have asserted that despite demand for payment of balance consideration, the flat purchaser did not respond.

THAT being so in our view the rate of interest of 9 per cent per annum which is also statutorily permissible (Refer Section 8 of Maharashtra Ownership Act, 1963) would be fair and reasonable and we modify the impugned order of this appeal to that extent. ORDER Appeal is partially allowed to the extent as under: (i) Order for refund of Rs. 1,40,100/- stands confirmed. (ii) The rate of interest, however, shall be payable at the rate of 9 per cent per annum on the amounts from the dates indicated hereinbelow till realization: Amount Date 10,000/- 5.9.1995 10,000/- 10.1.1996 35,100/- 28.6.1996 20,000/- 8.12.1996 55,000/- 30.12.1996 10,000/- 13.1.1997 1,40,100/- Total (iii) Order of the cost stands confirmed. (iv) As far as this appeal is concerned no orders as to cost. (v) Office to furnish the copies. (vi) On request of appellants Advocate 8 (eight) weeks time granted to the O.P. for the compliance of the impugned order of the Add. D.F. Nagpur as modified by us.

It is stated that sum of Rs. 40,000/- has been deposited by the O.P. with the Addl. D.F. Nagpur as per our interim order passed on 11.3.2003 at the stage of entertainment of the appeal as the condition for grant of stay for the execution of the impugned order. We direct the Addl. D.F. Nagpur to release the said amount to the complainant towards the part satisfaction of the award. Appeal partially allowed.