C S MATHKAR Vs. BUILDARCH SANKALP

JUDGEMENT

(1.) Heard learned Counsel for petitioner and respondent, on admission.

(2.) Undisputed facts are that petitioner approached respondent for purchase of a BHK residential flat in a proposed building to be constructed at Vile Parle, pursuant to which he paid Rs.1,37,500 between 19.12.1991 to 7.1.1992 to respondent, who agreed to sell one bed-room and kitchen flat in the proposed building to be constructed. Though parties are not at variance about respondenthaving received Rs. 19,08,500 from petitioner/complainant during the year 1991 to 1998, parties are disputing over factum of possession. While Builder in his defence says that petitioner had not taken over possession of flat when delivered after completion of project, and also whenever petitioner was asked to take possession of flat, he had chosen to evade for selection of site and even when respondent was ready to give possession of flat in other projects, petitioner was never keen to take possession. Petitioner, however, had a different story to tell us that despite receipt of total consideration value, respondent had not offered delivery of possession of flat in question. Be that as it may, after petitioner sought refund of deposits made by him with respondent, it is not in dispute that respondent refunded entire amount of Rs.19,08,500 to petitioner Petitioner getting no interest on his deposits from respondent which was allegedly agreed between parties @ 24% p.a., sought relief before District Forum filing a complaint.

(3.) Primarily, two-fold contentions which were raised before District Forum and also before State Commission are sought to be reiterated before us by respondent. First limb of argument was that since dealings between parties in the matter of payment of Rs. 19,08,500 was simply a monetary transaction carried out by petitioner to make investment to earn profit, this being not a consumer dispute, was not amenable to consumer Fora for adjudication. Yet it is contended by respondent that claim of petitioner for award of interest @ 24% p.a. on deposits made by him was not evidenced by any document and had the petitioner been a prospective and bona fide purchaser, it was most unlikely that he would not have insisted for execution of agreement. Issue of limitation too was raised before District Forum and District Forum rightly, in our view, having put reliance on decision of Hon'ble Apex Court in the matter of Lata Construction & Ors. v. Dr.Rameshchandra Ramniklal Shah & Anr., 1999 10 SLT 77,did not find merit in contention on this score, for their failure to deliver flat within the stipulated time. Referring to a letter dated 14.11.2006 issued by petitioner, Counsel for respondent would urge that by aforesaid communication, he would himself, let lose a cat out of bag, which betrays that petitioner had approached respondent pretending to be a prospective purchaser of a flat whereas his real interest was to make advance payment only to earn interest. Yet our attention has been drawn to another communication dated 27.5.2007 made by petitioner reiterating his intent to earn profit with the investment made with respondent.