Per – Hon’ble Mr. S. R. Khanzode, Presiding Judicial Member
This appeal takes an exception to an order dated 19/4/2011 dismissing the Consumer Complaint No.97 of 2011, Shri Dinesh Hegde Vs. Runwal Developers Pvt. Ltd., passed by the Additional Mumbai Suburban District Forum (hereinafter referred to as ‘the District Forum’ for the sake of brevity).
[2] It is the case of Appellant/original Complainant, namely – Mr. Dinesh Hegde (hereinafter referred to as ‘the Complainant’ for the sake of brevity) that he had purchased two flats as per agreement dated 11/5/2005 from the Respondent/original Opponent, namely – Runwal Developers Pvt. Ltd. (hereinafter referred to as ‘the Builder’ for the sake of brevity). The Complainant had received possession thereof on 6/5/2010. As per the agreement, the possession was to be handed over on 31/10/2006. On 13/4/2008, construction of the building was completed. Last payment was made by the Complainant on 19/12/2008 and thereafter, he claimed the possession but the possession was not handed over to him. After repeated persuasion, the Builder suddenly, by a letter dated 25/11/1999, raised an unlawful demand for an amount of `9,68,510/- towards the interest for the delayed payment and only after said amount was paid by the Complainant on 6/5/2010, the possession was handed over to the Complainant. It is the case of the Complainant that he was compelled to make the said payment as a condition for handing over the possession and it amounts to unfair trade practice/deficiency in service on the part of the Builder and, therefore, he claimed reimbursement of the said amount recovered in excess from him by way of compensation.
[3] The Builder resisted the consumer complaint by filing its written version. Transaction in question with the Complainant and the date of handing over possession, supra, are not in dispute. According to the Builder, as per the terms of the agreement, the Complainant opted for ‘Advance Disbursement Facility (ADF)’ and thus, get the flat at discounted rate. Opting for ADF, the Complainant agreed to pay balance consideration of `30,00,000/- in one go. As per clauses (04) and (08) of the agreement, if there is a delay of seven days in making payment from the date of making demand, interest @ 21% p.a., was payable. Referring to these clauses, the Builder tried to justify it demand of `9,68,510/- which is the subject matter of this consumer dispute. The District Forum upholding the contention of the Builder dismissed the consumer complaint and thus, feeling aggrieved thereby the Complainant preferred this appeal.
[4] We heard Adv. Mrs. Bindu Jain on behalf of the Complainant and Adv. Mrs. Anita Marathe on behalf of the Builder.
[5] Clauses of the agreement witnessed by a registered agreement dated 11/4/2005 are not in dispute. However, referring to the correspondence between the parties and particularly, the case as pleaded per written version by the Builder, it can be seen that as further mutually agreed between the parties, the Builder did give concession to the Complainant from time to time to make the payment in part as per the stages of construction, raised the demands from time to time which were duly honoured by making payments from time to time and thus, raising demand of `9,68,510/- after keeping silence over it for pretty long time on 25/11/2009, is unjustified. It also exhibits unfair trade practice on the part of the Builder to make such unlawful demand vis-à-vis deficiency in service on that count for raising demand (to recover excess amount) and withhold the handing over of possession unless said payment is made.
[6] Relevant portion from the written version filed by the Opponent reads as follows:-
“g. Since, relaxation was granted to the Complainant on various occasions by the OP, the Complainant willingly agreed to pay the said amount of Rs.9,68,510/-.
h. The OP submits that the Occupation Certificate (OC) was obtained on 14th Feb 2008; and the possession was offered to the Complainant vide letter dated 04/11/2008 subject to payment of charges for delayed payment of the consideration and other charges/amount if any………….Further, for delayed payment of the consideration amount, the OP demanded delayed payment charges of Rs.9,68,510/- as provided for in the agreement for sale; from the Complainant vide letter dated 25/11/2009, which the Complainant paid on 6th May 2010 vide cheque dated 21st April 2010 without any protest.”
[7] The case of the Builder that the Complainant without any protest made the disputed payment and further accepting his liability to pay the interest for delayed payment, is contradicted by the Complainant and considering the preponderance of probabilities, Builder’s such case of voluntary payment made by the Complainant cannot be accepted. It may be pointed out that the demand letter dated 10/5/2006 demanding amount of `25,33,400/- as relevant for 80% completion of the work, further demand on completion of 90% work by the Builder on 7/11/2006 for `3,16,675/-; next demand on completion of 95% of the work of `1,58,337/- dated 6/11/2007, at no point of time any interest was charged for delayed payment and no demand for any interest was raised. If any interest was applicable or could be charged or was payable it ought to have been demanded at that time itself. In fact, since it is the case of Builder that it voluntarily gave concessions in making payments as per the completion of the work and accepted those payments accordingly and even in subsequent demands no such interest was charged on the ground of alleged delayed payment; the case of the Builder that subsequently the Complainant accepted his liability to that extent and made payment of `9,68,510/-, cannot be believed. Furthermore, after paying the full consideration, the Complainant demanded the possession since the building was completed by that time. However, said request met with cold response on part of the Builder. After repeated persuasion on the part of the Complainant to get the possession, on one fine morning on 25/11/2009 disputed demand was raised and only after the Complainant was compelled to pay those dues under duress, the possession was actually handed over to the Complainant. The case of the Complainant in this respect is well-established. These facts are not properly appreciated by the District Forum and arrived at a wrong conclusion.
[8] Since charging of interest and recovery thereof which is unjustified, as stated earlier, the case of the Complainant that the Builder is guilty of unfair trade practice as well as deficiency in service, as recounted earlier, is well-established. The Complainant is, therefore, entitled to get reimbursement by way of compensation for said amount, as prayed. We hold accordingly and pass the following order:-
ORDER
The appeal is partly allowed.
Impugned order dated 19/04/2012 is set aside.
Respondent/original opponent/builder M/s. Runwal Developers Pvt. Ltd. is directed to refund an amount of `9,68,510/- along with interest @ 9% p.a. with effect from the date of filing of the consumer complaint i.e.05/06/2010. Amount be paid within 60 days from today, failing which, on expiry of this period, further interest shall be payable @ 21% p.a. instead of 9%, till its realization.
Respondent/builder to bear its own costs and pay `25,000/- as costs to the appellant/original complainant.
Pronounced on 29th August, 2012
