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VINOD R. TIWARI & OTHERS V/S DAYASHANKAR SHIVBALAK MISHRA & OTHERS, decided on Wednesday, September 29, 2004.
[ In the Maharashtra State Consumer Disputes Redressal Commission Mumbai, Appeal Nos. 1698 to 1701 of 2002. ] 29/09/2004
Judge(s) : M.S. RANE, PRESIDENT & DR. R.N. VARHADI, MEMBER
Advocate(s) : S.A. Ahmed. R1, Shirish Deshpande, , R2, None.
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  "2005 (2) CPJ 638"  ==   ""  







    M.S. Rane President1. We are proceeding to dispose of all these appeals with the common order since except A-1698/2002 all the parties i.e. appellants and the respondents are identical. The factual matrix obtained therein is also identical. Issues involved are also similar as also the nature of grievances upon which the disputes have been filed.2. The distinguishing feature as far as A-1698/2002 is concerned that the individual appellants named therein have been described as Director of M/s. Anil Shilpayaten Pvt. Ltd. a Corporate Entity otherwise practically the position is common and identical in all these matters.3. The respondent No. 1 who are org. complainants are present in response to the notices before admission issued by us earlier on 3rd February 2003 along with their Advocate. We therefore proceed to dispose of all these appeals at the stage of their admission itself on hearing the learned Advocates for the parties as above and on perusal of the material available in the appeal paper books.(For brevity appellants who are org. O.Ps. are hereinafter referred to as ‘Builders’ and respondent No. 1 in all the appeals is org. complainant in the respective complaints as ‘Flat Purchasers’)4. The builders have filed these 4 appeals in 4 separate complaints filed by the respective flat purchasers before the District Forum Thane against the builders alleging deficiency in services.5. District Forum has probed the matters after hearing both the parties and has rendered findings in the respective complaints against the builders holding them being deficient in rendering services vis-a-vis flat purchasers.6. At the outset we wish to state that we do not propose to dwell in detail over the nature of deficiency as have been pleaded by the respective flat purchasers since across the learned Advocate appearing for the builders-appellants herein fairly stated that appellants are not contesting the matters on merits but in appeals herein the appellants would be addressing this Commission only on the point of rate of interest as awarded by the District Forum.7. As a matter of fact submissions were made by and on behalf of the parties herein i.e. builders and flat purchasers by their respective Counsel on this point.8. On behalf of the builder-appellants their learned Advocate submitted that the District Forum has ordered refund of the amounts of consideration paid by the respective flat purchasers to the builders with interest @ 18% p.a. from the dates of respective payments till realisation and has also awarded separately a sum of Rs. 10 000/- and Rs. 3 000/- as compensation and cost in each of the matters. He submits having awarded compensation separately award of interest @ 18% p.a. as against 9% p.a. as provided under Section 8 of Maharashtra Flat Ownership Act 1963 would be on higher side. The submission is that Forum having awarded compensation separately as also ordered refund of the amounts of consideration paid the interest at such a higher rate would not be reasonable. As against this Mr. Deshpande the learned Advocate for the flat purchasers submitted that the transactions in the matters herein dates back to the year 1990-91 and the flat purchasers have as the record clearly show paid towards considerations from time-to-time from that date. Nearly 12 to 13 years builders have withheld the amount and eventually the possessions of the flats to the respective flat purchasers have not been made over.9. Mr. Deshpande further says that as far as market price of real property is concerned which prevailed in the year 1990 and that prevails at present there would be a change. However in absence of credible data it is not possible to appreciate such submissions. Considering the fact that the element of compensation envisages that the parties claiming compensation has to be restored to the same position had the deal fructified and while quantification of the compensation it should be borne in mind that the party has to be restored to the position as it was when it entered into the deal and if the deal had gone through in a normal way and normal course as agreed in the contract. It therefore necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury. The basic concept while award of compensation etc. is to award compensation i.e. a recompense for the loss or injury.10. On giving careful thought and consideration on the submissions made as above and after taking into consideration the fact that Forum has separately awarded compensation as also cost as a result of O.P. - builders being held deficient in services in our view interest @ 12% p.a. in place of 18% p.a. would be fair and reasonable in the facts/situation and circumstances of the case. At the present juncture judicial notice has also to be taken to the present rate in the Finance Market as also policy of Reserve Bank of India which is a Prime Bank regulating the Banking business which includes rate of interest. We therefore modify the respective awards in the respective appeals to the extent as above.ORDER in A-1698/2002 :1. Impugned order of A/1698/2002 stands confirmed with clarification that the appellant-builders should be taken as being accountable for discharge of the liability by virtue of they being Directors of the Company M/s. Anil Shilpayaten Pvt. Ltd. with modifications as under:(i) Order of refund of the amount vide operative Clause No. (2) stands confirmed.(ii) As far as operative Clause No. (3) is concerned the rate of interest stands reduced from 18% p.a. to 12% p.a. as per particulars mentioned therein.(iii) As far as award of compensation and cost vide operative Clause No. (4) is concerned the same stands confirmed.(iv) As far as this appeal is concerned there shall not be any order as to costs.(v) District Forum Thane shall release the deposited amount by the appellant-O.Ps. pursuant to our interim order towards part satisfaction of the award to the respondent-complainant.(vi) Copies of the order to be furnished to the parties.ORDER in A-1699/20021. Impugned order of A-1699/2002 stands confirmed with modification as under:(i) Order of refund of the amount vide operative Clause No. (2) stands confirmed.(ii) As far as operative Clause No. (3) is concerned the rate of interest stands reduced from 18% p.a. to 12% p.a. as per particulars mentioned therein.(iii) As far as award of compensation and cost vide operative Clause No. (4) is concerned the same stands confirmed.(iv) As far as this appeal is concerned there shall not be any order as to costs.(v) District Forum Thane shall release the deposited amount by the appellant-O.Ps. pursuant to our interim order towards part satisfaction of the award to the respondent-complainant.(vi) Copies of the order to be furnished to the parties.ORDER in A-1700/20021. Impugned order of A-1700/2002 stands confirmed with modification as under:(i) Order of refund of the amount vide operative Clause No. (2) stands confirmed.(ii) As far as operative Clause No. (3) is concerned the rate of interest stands reduced from 18% p.a. to 12% p.a. as per particulars mentioned therein.(iii) As far as award of compensation and cost vide operative Clause No. (4) is concerned the same stands confirmed.(iv) As far as this appeal is concerned there shall not be any order as to costs.(v) District Forum Thane shall release the deposited amount by the appellant-O.Ps. pursuant to our interim order towards part satisfaction of the award to the respondent-complainants.(vi) Copies of the order to be furnished to the parties.ORDER in A-1701/20021. Impugned order of A-1701/2002 stands confirmed with modification as under :(i) Order of refund of the amount vide operative Clause No. (2) stands confirmed.(ii) As far as operative Clause No. (3) is concerned the rate of interest stands reduced from 18% p.a. to 12% p.a. as per particulars mentioned therein.(iii) As far as award of compensation and cost vide operative Clause No. (4) is concerned the same stands confirmed.(iv) As far as this appeal is concerned there shall not be any order as to costs.(v) District Forum Thane shall release the deposited amount by the appellant-O.Ps. pursuant to our interim order towards part satisfaction of the award to the respondent-complainant.(vi) Copies of the order to be furnished to the parties.On request of appellants 4 months’ time from today is granted to the appellant-O.Ps. for compliance of the awards of the District Forum as modified by this Commission. In case O.P.-appellants fail to comply with the order as above rate of interest payable on the balance amount shall be 18% p.a. till realisation.Appeals disposed of.