Decided on December 18,2013

Surbhi Constructions And Ors Appellant
Sanjay Johnson Soanes And Ors Respondents


- (1.)THIS appeal is directed against an ex -parte order dated 30/06/2012 passed by the District Consumer Disputes Redressal Forum, Pune partly allowing Consumer Complaint No.468 of 2011 and directing the Respondent/original Complainant to pay to the Appellant/original Opponent balance consideration amount of Rs. 45,000/ - and thereupon directing the Appellant herein/original Opponent to hand -over to the Respondent/original Complainant the possession of a flat bearing No.222 in the building known as 'Surbhi Garden'. Appellant was further directed to pay to the Respondent an amount of Rs. 50,000/ - by way of compensation besides costs quantified at Rs. 1,000/ -. Facts which are material for deciding this appeal are as under: -
(2.)ON 10/01/1997 the Appellant agreed to sell to the Respondent a flat bearing No.222 for a consideration of Rs. 4,00,000/ -. Possession was to be delivered within a period of 18 months. The Respondent paid to the Appellant an amount of Rs. 3,55,000/ -. Balance amount of Rs. 45,000/ - was to be paid at the time of delivery of possession. The Respondent obtained a loan for financing this purchase from LIC Finance and interest which the Respondent was paying was @ 15.25% p.a. However, the Appellant did not deliver the possession of the flat to the Respondent. Appellant expressed his willingness to refund the amount to the Respondent and accordingly, on 15/05/2010 handed over a cheque to the Respondent for an amount of Rs. 3,00,000/ -. The Respondent tendered the cheque for realization. However, it was dishonoured. The Respondent then filed a complaint before the Learned Judicial Magistrate of First Class. In the complaint the Respondent stated that the cheque was for security for an assurance that the Appellant would deliver the possession. However, subsequently the Appellant was acquitted. The Respondent had also filed a complaint before the District Forum. Notice of this complaint was shown to have been duly served upon the Appellant. However, the Appellant did not appear before the Forum and hence, the hearing of the complaint proceeded ex -parte. After perusing the documents filed by the Respondent, the District Forum came to pass the impugned order. Aggrieved thereby, the Appellant is before us.
(3.)WE have heard Adv. Anand V. Patwardhan on behalf of the Appellant and Adv. Smt. Arati Joglekar on behalf of the Respondent. We have also perused the record.
Learned Advocate for the Appellant submitted that since the Respondent had accepted the cheque for termination of the contract and had even tendered the cheque to his banker for realization, the agreement stood terminated and all that the Respondent could have received is refund of the amount. He submitted that in view of this, such complaint could not have been entertained by the District Forum. Learned Advocate for the Respondent, on the other hand, submitted that the Appellant is seeking to take advantage of his own wrong in trying to hoodwink the Respondent by tendering a cheque for refund of the amount which was not honoured and, therefore, prayed that contention of the Learned Advocate for the Appellant may be rejected. She also pointed out that contentions which are tried to be raised by the Learned Advocate for the Appellant are not all reflected the appeal memo and the contentions raised in the appeal memo are restricted only to the extent of non -service of notice to the Appellant.


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