GANESH CO-OP. TENANT OWNERSHIP HOUSING SOCIETY LIMITED vs CHANDRABHAN GANPATI WANJARI

NONE present on behalf of the appellants. It is noticed that the appellants remained absent even in the past despite being aware of the date of admission hearing of the appeal. Mr. H.R. Kurade, learned Advocate for the respondent to file the appearance on behalf of the respondent if not done so far within 4 weeks from today.

WE are proceeding to dispose of this appeal on perusal of the material made available in the appeal paper book and on hearing the learned Advocate for the respondent. The appellants herein are the original O.Ps. in the aforesaid complaint and against the order dated 24th November, 2000 passed by Additional District Forum, Nagpur allowing the claim of the complainant-respondent herein with regard to the payment of interest that this appeal has been filed. The award in question is ex parte award since it is noticed the appellants herein original O.Ps. neither appeared on the date of hearing of the complaint before the District Forum nor did they file their written statement in response to the show-cause notice issued and served by the District Forum upon them. Consequently, the District Forum has proceeded to settle the claim of the complainant in the complaint on the basis of case as represented by and on behalf of the complainant.

In the grounds set out in the memo of appeal, the present appellant-original O.Ps. Co-operative Society have set out and explained the circumstances as to why they could not deliver the plot of land to the complainant in respect of which he had paid the consideration to the appellant-Society.

IT is noticed eventually the appellants refunded the amount to the complainant after lapse of considerable time but disallowed the claim of interest and hence complainant filed the complaint. The District Forum has allowed the interest @ 12% p.a. vide its impugned order to which appellants have taken exception in the appeal herein.

THE learned Advocate for the respondent submitted that the appeal is time-barred and despite service the appellant-Society did not bother to contest the claim of the complainant although opportunities in that behalf were provided. Since issue revolves over the rate of interest, we think it reasonable as also appropriate to consider the same on perusal of the material. It is noticed that the appellant-Society was to get a plot of land in question from the Nagpur Improvement Trust for which Society had negotiated with it but the Improvement Trust could not deliver the plot of land to the appellant-Society because of certain encumbrances and consequently Society could not make over the possession to the complainant.

THE fact that the complainant made the payment as mentioned by the District Forum is not in dispute.

SINCE it is noticed that the complainant made the payment, which the Society withheld with it for considerable period despite the fact that it was unable to deliver the possession of the plot of the complainant, the findings as rendered by the District Forum holding that the complainant would be entitled to claim the interest on the amount of consideration paid are well merited needing no interference. The question is whether rate of interest as awarded @ 12% p.a. on the said amount to which Society have taken exception with a plea that it should not be saddled with the payment of interest. We wish to state that under Section 9 of Maharashtra Flat Ownership Act, 1963 the statutory interest as provided in such contingency is at 9% p.a. It further needs to be stated that plot of land was sold by the Society for constructing the houses, therefore it would be kind of service which would squarely fall under Section 2(1)(o) of Consumer Protection Act, 1986, which is amended in the year 1993 being of the category of housing construction. That being so, the rate of interest @ 9% p.a. would be fair and reasonable in the circumstances. We modify the order impugned in this appeal accordingly. ORDER 1. Appeal is partially allowed to the extent as under : (i) The findings of the District Forum rendered vide impugned order that the claim of the complainant for interest is justified are upheld. (ii) Rate of interest @ 12% p.a. as awarded stands reduced to 9% p.a. as mentioned in Operative Clause No. 2 of the impugned order. (iii) Operative Clause No. 3 of the impugned order for payment of cost of Rs. 500/- stands confirmed. (iv) Appellants shall pay cost to the complainant in this appeal quantified at Rs. 1,500/-. (v) With this appeal stands disposed of. (vi) Office shall furnish copies of the order to the parties. Appeal partly allowed.