U.S. ROOPS LTD. vs RABIABIBI AMIRUDDIN PATHAN

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.

RESPONDENTS are present in response to our order issued earlier on 29.9.2003. Appeal was moved on behalf of appellant for admission. The appellants are original O.P. and respondents original complainant. (For brevity''s sake appellant is referred to as ''Builders'' and respondent as ''Flat purchaser'').

The builders have challenged the order dated 21.4.2003 whereby Raigad District Forum has held them being deficient in the matter of completion and construction of flat and hand over possession to the flat purchaser within agreed period and so holding in the first instance ordered refund of the amount of Rs. 2,38,280/- paid by the flat purchaser towards consideration with 18% interest p.a. plus Rs. 8,000/- as compensation for mental agonies and Rs. 1,000/- cost.

AS is the case award is ex parte award and ground taken in appeal and also reiterated across during the submission by and on behalf of builders that initial process of District Forum was not served upon them. However, we would only reproduce the relevant portion appearing in para 6 of the judgment which would falsify the stand taken at the later stage: "xxx xxx xxxx xxx xxx xxxx" It will thus be noticed that the process is duly served upon the builders at their registered address through Post by the District Forum. Thereafter on three occasions the District Forum has extended indulgence to the builder in adjourning the matter as mentioned herein.

IT will thus be noticed that as provided under Statute, the builders/O.Ps. were provided with an opportunity to defend the dispute, which they have for the reasons best known to them have failed to avail of. Apart from the fact that no convincing explanation has been offered for the same, the false stand is taken to say that they were not duly served, when position as noticed as otherwise. In the circumstances the case of the complainant as averred in the complaint which was supported by documents viz., receipts etc. and which went unchallenged and uncontroverted because of want of written say on behalf of O.Ps. that the District Forum has proceeded to make the award. The facts clearly show that there was dealing between the parties herein in the year 1997 and the builders were to hand over possession in 1998.

ACROSS we have been shown photos which show the building is not yet completed. The learned Advocate has shown us the communication received from CIDCO dated 13.2.2004 which has also been shown to builder''s Advocate which is appropriate developing authority to regulate and control the construction activities, wherein it is stated that respondent has not submitted application for issuance of occupancy certificate in respect of the building in question which would show that the construction of the building has not been ready till that date which the builder has agreed to provide in the year 1998.

ACROSS the learned Advocate for appellant submitted that since other flat purchasers have not adhered to the payment schedule, the building could not be completed. However, as the case in hand is concerned, the flat purchaser has paid a sum of Rs. 2,38,280/- which is substantial part of consideration and because there was no progress in the construction that he did not pay the balance amount. The said stand of the complainant/flat purchaser is also adequately vindictive by the fact the building in question is not yet completed in all respect. We, therefore, see not merit in the order.

Across the learned Advocate for appellant/builder submited that interest awarded by the District Forum at 18% p.a. on the amount of consideration to be refunded from the date of payment and in addition Rs. 8,000/- has also been awarded as compensation. He submits that some lenient view be taken in the matter of rate of interest.

THE learned Advocate for flat purchaser has left the issue upon this Commission. Considering the facts obtained in the matter herein, we think it appropriate that as far as rate of interest is concerned, it would be reasonable to award the same at the rate of 12% p.a. in place of 18% p.a. as awarded and we, as a matter of indulgence modify the impugned order to that extent. ORDER Appeal is partially allowed to the extent as under : 1. THE findings of the District Forum, Raigad holding the builders/O.Ps. deficient stands confirmed. 2. Refund of Rs. 2,38,280/- as awarded also stands confirmed. 3. Rate of interest of 18% p.a. awarded vide operative Clause -1 stands reduced to 12% p.a. 4. Operative Clauses 2 and 3 for payment of compensation and cost stands confirmed. 5. No order as to cost. 6. Amount of Rs. 1 lakh deposited by the O.P/appellant as per our interim order dated 29.9.2003 be released to the complainant towards part satisfaction of the impugned award of the District Forum as modified by us. 7. District Forum, Raigad shall release the amount to the complainant accordingly. 8. Office to furnish copies of the order to the parties.

Appeal partly allowed.