C S Mathkar vs Buildarch Sankalp

HEARD learned Counsel for petitioner and respondent, on admission.

UNDISPUTED facts are that petitioner approached respondent for purchase of a BHK residential flat in a proposed building to be constructed at Vile Parle, pursuant to which he paid Rs. 1,37,500 between 19.12.1991 to 7.1.1992 to respondent, who agreed to sell one bed-room and kitchen flat in the proposed building to be constructed. Though parties are not at variance about respondent having received Rs. 19,08,500 from petitioner/complainant during the year 1991 to 1998, parties are disputing over factum of possession. While Builder in his defence says that petitioner had not taken over possession of flat when delivered after completion of project, and also whenever petitioner was asked to take possession of flat, he had chosen to evade for selection of site and even when respondent was ready to give possession of flat in other projects, petitioner was never keen to take possession. Petitioner, however, had a different story to tell us that despite receipt of total consideration value, respondent had not offered delivery of possession of flat in question. Be that as it may, after petitioner sought refund of deposits made by him with respondent, it is not in dispute that respondent refunded entire amount of Rs. 19,08,500 to petitioner. Petitioner getting no interest on his deposits from respondent which was allegedly agreed between parties @ 24% p.a., sought relief before District Forum filing a complaint.

PRIMARILY, two-fold contentions which were raised before District Forum and also before State Commission are sought to be reiterated before us by respondent. First limb of argument was that since dealings between parties in the matter of payment of Rs. 19,08,500 was simply a monetary transaction carried out by petitioner to make investment to earn profit, this being not a consumer dispute, was not amenable to consumer Fora for adjudication. Yet it is contended by respondent that claim of petitioner for award of interest @ 24% p.a. on deposits made by him was not evidenced by any document and had the petitioner been a prospective and bona fide purchaser, it was most unlikely that he would not have insisted for execution of agreement. Issue of limitation too was raised before District Forum and District Forum rightly, in our view, having put reliance on decision of Hon''ble Apex Court in the matter of Lata Construction and Ors. v. Dr. Rameshchandra Ramniklal Shah and Anr., III (1999) CPJ 46 (SC)=X (1999) SLT 77=AIR 2000 SC 380, did not find merit in contention on this score, for their failure to deliver flat within the stipulated time. Referring to a letter dated 14.11.2006 issued by petitioner, Counsel for respondent would urge that by aforesaid communication, he would himself, let lose a cat out of bag, which betrays that petitioner had approached respondent pretending to be a prospective purchaser of a flat whereas his real interest was to make advance payment only to earn interest. Yet our attention has been drawn to another communication dated 27.5.2007 made by petitioner reiterating his intent to earn profit with the investment made with respondent.

RESPONDENT, however, we notice, in their communication, dated 9.3.1992 have stated in the following terms : "This is to confirm that we have agreed to sell a flat having one bedroom, living room and kitchen in our proposed building, to be constructed by us on final plot No. 98, T.P. S.-II, at Ajamal Road, Vile Parle, Bombay-400 057 to Shri C.S. Mathkar. We acknowledge having received from Sh. C.S. Mathkar Rs. 1,37,500 till this day."

YET, there is other communication made by respondent on 24.7.2007 addressed to Mumbai Grahak Panchayat, a Consumer Association, in which they say as follows : "It is true that Mr. Mathkar has paid us an amount of Rs. 19,08,000 in installments from 1991 to 1998 with an intention to acquire residential flat in a building then being constructed by us at Vile Parle. However it is denied that he has paid us any amount with an intention to receive 2% interest."

IF all these communications made by respondent are to be taken into consideration, that demolishes basic fabric of the case of respondent about transaction in question being only a monetary transaction and not a consumer dispute. Admittedly, there has been no execution of agreement between the parties notwithstanding the fact that handsome amount of Rs. 19,08,500 was paid to respondent by petitioner, though Section 4 of Maharashtra State Ownership Flats Act, 1963 casts an obligation on the promoter to enter into registered agreement with the prospective purchaser before accepting advance payment or deposit. Though petitioner states to have made investment with the builder which would earn interest @ 24% p.a., as we have observed, there is no evidence put on record to accept such contention raised. Though builder reiterated that whenever they asked petitioner to take possession of flat when project was completed, he had been making evasive approach to the issue but no such communication made by respondent, was ever brought to our notice.

DISTRICT Forum, on a complaint filed by petitioner seeking refund of balance of principal amount of Rs. 7,76,100 from respondent along with interest, there being no document evidencing interest @ 24% p.a. payable by respondent on the deposits, taking notice of Section 8 of Maharashtra State Ownership Flats Act, 1963 made respondent answerable to pay interest @ 9% p.a. on deposits made by petitioner in installments. We are pained to find that well reasoned order of District Forum was upset by State Commission, on consideration of some astray statement made by petitioner which in fact, does not convey the meaning drawn by State Commission. In the circumstances, while we set aside the impugned order, restore that of District Forum except for payment of compensation of Rs. 50,000 in view of interest having been awarded on deposits. Revision petition accordingly succeeds, but with no order as to cost. R.P. allowed.