IMPORTANT POINT
Consumer Protection Act, 1986 is a benevolent legislation enacted to protect rights of consumers.

S.B. Mhase, President— Appellant No.1 in person is present. Respondent is absent. Respondent is duly served with a notice issued by this Commission. There is a report to that effect downloaded from the website of postal department, namely ‘India Post’ and, therefore, service of notice to the Respondent is declared complete under Section 28A of the Consumer Protection Act, 1986.

2. Heard the Appellant No.1. Perused the record.

3. This appeal filed by the Appellants/Complainants is directed as against an order dated 13.4.2012 passed by the District Forum, Mumbai Suburban District in Consumer Complaint No.105 of 2009. By the said order, the District Forum has partly allowed the complaint and directed the Respondent/Opponent to refund to the Appellants/Complainants an amount of Rs.50,000 together with interest thereon @ 12% p.a., with effect from 12.5.2008 besides costs of Rs.5,000. Feeling aggrieved and dissatisfied with the order, the Appellants/Complainants have preferred this appeal. This appeal was admitted by the State Commission on 4.7.2012 and a notice after admission was directed to be issued to the Respondent. Accordingly, notice was .dispatched to the Respondent on 13.7.2012 and the notice was kept returnable on 16.8.2012. However, the envelope which was sent by post to the Respondent was not received back. Similarly, the postal acknowledgement receipt which in normal course should have been received by the State Commission was also not received. Therefore, the State Commission’s Officer tracked the record on the website of postal department, namely: ‘India Post’ and obtained information in respect of Postal Article No.RM09536049i IN namely:—the postal communication of the notice of this appeal which was sent to the Respondent. It is revealed from that the said envelope sent by post was delivered by postal authorities to the Respondent on 20.7.2012. Said report obtained from the website is part of record of the State Commission. Inspite of such service of notice the Respondent has not appeared and, therefore, there is no other alternative but to proceed with the hearing of the appeal in absence of the Respondent.

4. The Appellants herein are the original Complainants while the Respondent herein is the original Opponent. The Appellants/Complainants had booked a flat with the Respondent/ Opponent and accordingly, an agreement was executed on 20.12.1997 in respect of a flat bearing No. 302, situated on the third floor of ‘A’ Wing in the building known as ‘Mercury’ to be constructed by the Respondent/Opponent. At the time of registration of the said document the Appellants/Complainants paid to the Respondent/Opponent an amount of Rs.25,000. Total consideration in respect of the said flat was agreed at Rs.3,16,250. An amount of Rs.25,000 was further paid on 11.2.1998 by cheque bearing No.213766 dated 10.2.1998 drawn on Abhyudaya Co-operative Bank Ltd. Then, there is another payment of Rs.50,000 made the Respondent by a cheque drawn in favour of Siddhivinayak Builders and the amount towards the said cheque was deducted from the bank account of the Appellants/Complainants on 18.10.2002. Thus, what we find is that the Appellants/Complainants have made a total payment of Rs.1,00,000 to the Respondent/Opponent. As against that the District Forum concluded that the Appellants/Complainants have paid only an amount of Rs.50,000 to the Respondent/Opponent. Such a finding recorded by the District Forum is erroneous and the same is hereby set aside.

5. The District Forum has further observed that the Appellants/Complainants have failed to make the payment as per the payment schedule as stated in the agreement. However, said payment schedule contemplates payment at each stage of construction, namely at the stage of documentation, plinth, first slab onwards up to eighth slab. What is important to be considered that slab-wise payment was to be made by the Appellants/Complainants after particular stage of construction was comp