PRESENT

                   Complainant in person.   

                    Opponent absent.

ORDER

(Per- Mr. S. D. MADAKE, Hon’ble President

1. The complainants booked flat no. 502 'A' wing, Building no. 4, 5th Floor admeasuring 477 s.q. ft   for consideration Rs. 5201408/- (Fifty Two lacs on thousand four hundred zero eight) situated at N.G. Park Dahisar (E), Mumbai- 400 068 on 7.11.2010 in the project of opposite party.
2.         The complainants  states that opponent agreed to provide allotment letter within three days from the date of payment. i.e. 7.11.2010 on which they paid Rs. 100001/- (One lac one thousand) They alleged that the opponent party failed to provide as per agreement and made delay for about 15 days.
3.         They alleged due to unreasonable delay in providing allotment letter the process of registration of agreement for sale cannot be initiated and could not obtained the loan. It is alleged that the opponent has not extended co-operation to answer the queries regarding loan proposal in respect of project.
4.          It is stated that as per the agreement dated 27.11.2010 the 10% amount was to be paid at the time of possession. However the opponent insisted that payment was to be made before 6.1.2011, though the opponent was not in a position to hand over possession of the flat on 6.1.2011.
5.           The Complainants alleged that the opponent demanded Rs. 134850/- (One lac thirty four thousand eight hundred fifty) towards the rate difference due to delay in making payment though delay was caused due to opponent. They paid amount due to fear of cancellation of agreement. The opponent was liable to handover possession within 15 days from 6.1.2011. However, same was handed over on 27.03.2011 without basic amenity of B.M.C. water supply.
6.           The Complainants  prayed for direction to opposite party to refund amount charged on the ground of rate difference to the amount of Rs. 134850/- in addition to compensation and cost.
7.           The opposite party strongly resisted all allegation and stated that forum has no jurisdiction to decide complaint and dispute is not consumer dispute.
8.           The opponent stated that the Complainants  failed to make payment before 6.1.2011 as per agreement. The Complainants made several request to the opponent and given undertaking on Rs. 100/- stamp expressing willingness to pay compensation of Rs.134850/-.(One lac thirty four thousand eight hundred fifty )
9.            The opponent contended that the Complainants made default in making payment on time and after giving several opportunities for payment taken possession and raised the dispute with malafide intention.
10. The opponent stated that the opposite party have to hand over the possession on 6.1.2011 but after the undertaking given by Complainants dated 10.2.2011 and as per agreement after making full payment, Complainants were entitled to possession. All other allegations are specifically denied and prayed for dismissal of complaint.
11.           We have heard at length both sides. Perused all the documents filed on record. The admitted position is Complainants decided to book flat and paid Rs. 100001/- on 7.11.2010. The allotment letter was received by Complainants on 23.11.2010 the agreement was entered on 27.11.2010 and possession was to be given on 6.1.2011.
12.           Admittedly, Complainants paid Rs. 100001/- on 7.1.2010, Rs. 600000/- on 8.1.2011, Rs. 1801408/- on 11.2.2011, Rs. 2700000/- on 16.2.2011.
13.           Admittedly, Complainants gave undertaking on Rs. 100/- stamp expressing willingness to pay additional compensation of Rs. 134850/- on 10.02.2011. The  opposite party who is a reputed builder has to prove by convincing evidence the justification for claiming said amount.
14.           The opposite party was under an obligation to decide the request application made by Complainants on 4.1.2011 stating that the delay in allotment letter and non-cooperation in answering issues raised by SBI regarding loan were responsible in making delay in payment. The developer is not justified to claim any amount directing Complainants to give undertaking on stamp paper  towards  payment of additional compensation. This act of the opponent is unfair trade practice.
15.           Admittedly total amount was received by Complainants  before 16.2.2011 and possession was handed over on 29.3.2011 as stated in para. 17 of W.S. filed on 5.2.2014. The admitted position is both parties could not strictly comply the terms of agreement.
16.           In the result, we are of the view that opposite party is liable to return an amount of Rs. 134850/- recovered from Complainants, towards additional compensation. The opponent failed to prove that Complainants requested to opposite party with free consent to take compensation of Rs. 134850/- which opposite party accepted to accommodate customer. This submission of opponent is an example of unjust enrichment.
17. 17.              The Complainants claimed compensation of Rs. Two lacs. The document shows that there is no justification  for claim of compensation. Both parties were not able to perform their reciprocal promises on time. Hence, no order as to compensation and cost. However, Complainants are entitled for reasonable  interest on amount  recovered on the basis of  Rs. 100/- stamp, to the amount of 9 % p.a. on the said amount of Rs.134850/-.(One lac thirty four thousand eight hundred fifty )

18.            In the result, we pass the following order.

                                           ORDER

1.       RBT  Consumer Complaint No. 482/2012  is partly allowed.

2.       The opposite party is ordered to pay Rs. 1,34,850/- ( One lac thirty four thousand eight hundred fifty ) to Complainants with  

          interest at 9% p.a. from the date of filing  of complaint i.e. 01.11.2012 till realization of total amount.

3.       No order as to compensation and cost.

4.       Copy of this order be sent to the both parties.