CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE, MUMBAI



FIRST APPEAL NO.1515 OF 2005 Date of filing : 26/08/2005

IN CONSUMER COMPLAINT NO.334/2001 Date of order : 09/03/2009

DISTRICT CONSUMER FORUM, PUNE



Shri Bharat V.Desai

R/o.Flat no.B-8, Balaji Apartment

Survey no.567, Vastunagar

Bibwewadi, Pune ………..Appellant/org.complainant

v/s.

1. M/s.Manish Corporation

24, Veer Nariman Road

Fort, Mumbai 400 023

Through its partner Respondent no.2

2. Mr.Ajay Praveenchandra Kamdar

Shri Vastu Enclave

Behind Manish Park

Rajmata Jijabai Road

Pump House, Andheri(E)

Mumbai 400 093

3. Manish Darshan Co-op.Hsg.Society Ltd.

through its Chairman & Secretary

having office at

Manish Darshan Co-op.Hsg.Society Ltd.

Plot no.9, Fatima nagar,

Pune 411 013

4. Shri Lawrance Ferro

The Chairman of Respondent no.3 Society

5. Shri Gulab Aiher

The Secretary of Respondent no.3 Society

Respondent nos.4&5 having address at

Manish Darshan Co-op.Hsg.Society Ltd.

Plot no.9, Fatima nagar,

Pune 411 013 ………Respondents/org.O.Ps



Corum: Justice Shri B.B.Vagyani, Hon’ble President

Shri S.R.Khanzode, Hon’ble Judicial Member



Present : Mr.Pramod Bombatkar-Advocate for the appellant

Mr.R.M.Pandey-Advocate for respondent nos.1&2.

None for rest of the respondents



O R A L O R D E R



Per Justice Shri B.B.Vagyani, Hon’ble President

Heard Mr.Pramod Bombatkar-Advocate for the appellant and Mr.R.M.Pandey-Advocate for respondent nos.1&2. None for rest of the respondents though served.

District Consumer Forum dismissed the complaint mainly on the ground that Civil Court is competent court to decide the issue involved in the consumer complaint. In para 8 of the judgement, District Consumer Forum has observed that the parties should have invoked jurisdiction of Civil Court or Co-operative Court. This finding of the District Consumer Forum is erroneous. District Consumer Forum is competent Forum to decide the dispute between the flat purchaser and the builder and Chairman and Secretary of the Co-operative Housing Society.

The Agreement was executed in the year 1985. The total consideration of flat was agreed at Rs.1,02,750/-. The last installment of Rs.54,650/- was to be paid to the builder at the time of delivery of possession. Admittedly, last installment was paid to the builder on 23/9/1999. The paper receipt was issued by the builder. Flat purchaser had made a serious grievance that only paper possession was given and the actual possession was not given. Therefore consumer complaint was filed. Ld.Advocate Mr.Pandey for the builder vehemently argued that the possession was given to the flat purchaser in the year 1985. There is no proof placed on record to show that the physical possession of the flat was delivered to the flat purchaser in the year 1985. Defence raised in the written statement is not a proof. Moreover last installment of Rs.54,650/- was not paid in the year 1985. Therefore we do not accept the argument of Ld.Advocate for the respondent to the effect that the physical possession was delivered to the flat purchaser in the year 1985. Last installment was admittedly paid on 23/9/1999. It appears that only paper possession was given to the flat purchaser.

Chairman and Secretary of the Co-operative Housing Society filed written statement. In para 5 of the written statement, they have contended that the flat in dispute is vacant. Similarly, the builder has stated in para 5 of the written statement that flat is vacant and found locked. Case with regard to licensee is therefore immaterial. All the contesting opponents have stated in their written statement that flat is vacant and found locked. District Consumer Forum should have directed the builder, Chairman and Secretary of the Co-operative Housing Society to deliver possession of the flat to the flat purchaser. Dismissal order passed by the District Consumer Forum is erroneous. In the result, we pass following order:-

ORDER

1. Appeal is allowed with cost of Rs.1000/- each to be paid by Builder and Chairman and Secretary of the Society.

2. Dismissal order passed by the District Consumer Forum is quashed and set aside.

3. Consumer complaint filed by the complainant is partly allowed.

4. We direct the builder, Chairman and Secretary of the Co-operative Housing Society to deliver physical possession of the flat in dispute to the appellant within a period of 45 days from the date of receipt of the order.

5. On failure, the builder, Chairman and Secretary of the Co-operative Housing Society are directed to pay Rs.5000/- per month to the flat purchaser from the date of filing of the complaint till possession is delivered.

6. Pronounced and dictated in the open court.

7. Copies of the order be furnished to the parties.





(S.R.Khanzode) (B.B.Vagyani)

Judicial Member President