SURANA BUILDERS And DEVELOPERS PVT. LTD. vs PRAKASH BHAU JIKAMDE

ORIGINAL complainants are present through their Advocate in response to the Notice before admission issued earlier.

WE are proceeding to dispose of this appeal at the stage of its admission itself on perusal of the material available in the appeal paper book and on hearing the learned Advocates for both the parties. (For brevity''s sake appellants who are original O.Ps. are referred to as ''Builder'' and respondents who are original complainants as shown in the cause title of the impugned order as ''Flat purchaser''.) The District Forum has passed common order dated 30.11.2002 in these group of matters holding the Builders being deficient in rendering services to the flat purchaser and so holding has ordered refund of the amount of consideration paid by the respective complainant with interest of 15% p.a. plus Rs. 3,000/- as cost to each of the complainants. As stated, Builders have challenged the said order.

We noticed that the District Forum in paragraphs 3 and 4 have considered the justification or rather circumstances set forth by the Builder explaining as to what circumstances prevented him for going ahead with the project of completing the construction and hand over possession to the respective flat purchaser. Record shows that the transaction dates back to the year 1995 and complaints were filed in the year 1999.

THE Builders have stated that there was change in the Planning/Development Authority in the meantime because of advent of CIDCO which necessitated certain conditional formalities attributing for the delay. Builders also explained that the instalments from the flat purchaser towards consideration were not paid regularly as per schedule of payment, with a result that the Builders could not go ahead with the construction. However, all these aspects have been countenanced by the flat purchasers and placing reliance upon writing executed by the Builder on 8.10.1998 for refund of the amounts to the flat purchaser with interest at 18% p.a. that they made claims accordingly.

DISTRICT Forum made award in the terms as aforesaid. We have heard the learned Advocates for the parties for considerable length as also perused the material. We have occasion to consider the matter involving with identical circumstances as obtained herein in a group of appeals in the cases of Appeal Nos. 584/1998, 592/1998, 594/1998 and 595/1998 in the case of M/s. Paranjpe Construction Co. v. Nilesh Ram Marathe & Ors. decided on 20th June, 2001 reported in 2001 (3) ALL MR (JOURNAL) 1 and in that matter we have held that the change of Planning Authority necessitating delay to be a mitigating factor as far as Builders are concerned and not exonerating one in the context of awarding contraction and so holding, we have proceeded to award refund of the amount of consideration paid by respective flat purchasers with 15% interest.

UNDER Section 8 of Flat Ownership Act, 1963, interest stipulated is 9% p.a. but in the said matter in Paranjape case we proceeded to award 15% p.a. taking into consideration component of compensation envisaged under Section 14(1)(d) of Consumer Protection Act, 1986. Inasmuch as the said provision provides in the event of deficiency being established, the consumer/complainant has to be paid the amount as a way of loss suffered by him and in addition have to be compensated because of mental agonies suffered.

IN the matter herein, we noticed that the District Forum has awarded cost of Rs. 3,000/- to each of the Flat purchaser. However, from the particulars furnished we notice that in some of the cases the amounts paid which range between Rs. 10,000/- Rs. 40,000/-. In our view interest at the rate of 10% p.a. will be fair and reasonable in the fact situation and we modify the impugned award accordingly. ORDER Appeal is partially allowed to the extent as under: 1. Award of District Forum ordering refund of amounts as indicated in operative Clause No. 1 of the order to the flat purchaser/complainants stands confirmed. 2. Rate of interest of 15% p.a. as awarded stands reduced to 10% p.a. 3. Rest of the awards stand confirmed. 4. As far as this appeal is concerned, no order as to cost. 5. Mr. Gupta says that if the Builders/O.Ps. comply with the award, it should be clarified that flat purchasers/complainants would have no interest in the flats concerned. In our view such a comprehension is totally unfounded since the complainants/flat purchasers have been made refund of the amount, would clearly implies that they had given up their claims in that respect. 6. Amount deposited by the Builder/O.P. with the District Forum as per our interim order be released to the complainant/flat purchaser on pro-rata basis of their claims. 7. We are granting eight weeks time to the Builders/O.Ps. for compliance of the order of the District Forum impugned in these appeals as modified by us. 8. Office to furnish copies of the order to the parties.

Appeal partly allowed.