S.M. Kantikar ORDER
Dr. B.C. Gupta, (Presiding Member)
1. This first appeal has been filed under section 19, read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 19.11.2013, passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in consumer complaint No. 480/2000, filed by the present respondent and others, vide which, the said complaint was allowed.
2. Briefly stated, the facts of the case are that the respondent/complainant Mrs. Hermonie Mary Salazar and others, filed the consumer complaint No. 480/2000 before the State Commission, saying that she alongwith her siblings were absolute owners of agricultural land measuring 4972.9 sq. mtr. alongwith structures standing thereon, at village Kondivata, Taluka Andheri East at Bombay suburban. The exact details, including the survey numbers of the said land have been detailed in the consumer complaint. The Opposite Party (OP) builder/appellant Anthony H. Silva, approached them with a proposal to take over the said land on "as is where is" basis and develop the same, by settling with the persons in occupation of the structure on the said land at his own cost and expenses and after obtaining necessary permissions and sanctions from the concerned authorities. On 07.11.87, an agreement was entered between the complainant and four others on one side and the OP Builder on the other side, according to which, the developer was supposed to provide flats to the 5 owners, including the complainant for a total area of 8500 sq. ft. and sell the rest of the flats to various other persons and appropriate the sale proceeds thereof. The flats were to be provided to the complainants on ownership basis. It was also stipulated that if the flats allotted by the developer to the owners do not cover up the entire area agreed to be allotted, the developer shall pay the cost of such deficient area at the then prevailing market price. It is alleged that the developer completed the construction of the building, but failed to put the complainant in possession of the flat, to which she was entitled as per the terms and conditions of the agreement. He had, however, sold the flats so constructed to various purchasers and earned enormous profits. The complainant filed the consumer complaint in question, seeking directions to the OP to allot and give possession of a flat to her of area, measuring 1700 sq. ft. and also to provide compensation of 20 lakhs for deficiency in service and further damages of 20,000/- per month, till the complainant was put in possession. It was also prayed that interest @ 18% p.a. on the amount so worked out, should also be granted to her.
3. The complaint was resisted by the OP Builder by filing a written version before the State Commission, in which he stated that the agreement between the complainant and the builder was a commercial transaction and hence, the matter did not fall within the jurisdiction of the consumer fora. The only remedy available to the complainant was to file a civil suit. The OP stated that he had satisfied the claims of four co-owners by allotting them flats at various places. He had also called upon the complainant to take possession of a flat in or around 1995, but she was reluctant to take possession of the same. He was, therefore, left with no alternative, but to sell the flat to some other parties.
4. After taking into account the evidence produced by both the parties, the State Commission vide impugned order dated 19.11.2013, ordered as follows:-
"1. Complaint is allowed.
2. Opponent/developer is directed to hand over possession of the flat or flats having aggregate area of 1700 sq. ft. to the complainant in terms of agreement dated 07/11/1987 within one month from the date of receipt of copy of this order.
3. Opponent is directed to pay a sum of 50,000/- to the complainant as compensation for mental agony.
4. Opponent is directed to pay 10,000/- as cost of litigation t........