Per Shri S.R. Khanzode – Hon’ble Presiding Judicial Member:

(1)          This appeal takes an exception to an order dated 26.11.2008 passed in Consumer Complaint No.104/2004, Smt.Vandana Manohar Dicholkar V/s. Shri Shashikant Umakant Malve & Ors., by District Consumer Disputes Redressal Forum, Additional Mumbai Suburban (‘Forum below’ in short). 

(2)          This appeal is preferred by original Opposite Party No.1 – Shri Shashikant Umakant Malve and Original Opposite No.4 – Shri Ravindra Tarachand Malve.  It may be mentioned that Appeal No.1012/2009 preferred by original Opposite Party No.2 – Shri Vishnu Laxman Surve, was dismissed for default on 16/06/2010 and it was ordered to be restored as per conditional order passed in Misc.Application No.363/2010 dated 02/08/2010.  Since, condition of payment of costs which was sine quo non to restore the appeal was not complied with, said appeal remains dismissed for default.  Opposite Party No.3 – Lokpriya Housing Development Pvt. Ltd.  had filed Appeal No.1302/2009,  but, the same was not entertained as barred by limitation since the application for condonation of delay in the said appeal stood dismissed.

(3)          Undisputed facts are that, Respondent/original Complainant – Smt.Vandana Manohar Dicholkar, hereinafter referred to as the ‘Complainant’ is the promoter/member and flat allotted from proposed Saraswati Co-op. Hsg. Society Ltd., of which Appellant/original Opposite Party No.4 – Ravindra Tarachandra Malve, hereinafter referred to as the ‘Chief Promoter’, was the Chief Promoter of the said Society.  A tri-parte agreement dated 18/09/1995 between the Complainant – Smt.Vandana Manohar Dicholkar, Chief Promoter – Shri Ravindra Tarachand Malve and Opposite Party No.3 – Lokpriya Housing Development Pvt. Ltd., (hereinafter referred to as the Developer for the sake of reference only) had taken place.  One of the stipulations under the said agreement appearing at internal page no.14 of the said agreement reads as under:

“If the possession of the flat is delayed further except for the reasons other than those mentioned above the CHIEF PROMOTER shall be liable to refund to the MEMBER the amount received form the MEMBER by them with simple interest at 9 per cent P.A. from the date the CHIEF PROMOTER received the same till the date and the amount and interest thereon is repaid.  Till the entire amount and interest thereon is refunded by the CHIEF PROMOTER to the MEMBER they shall subject to prior encumbrances if any and be charged on the said portion of land as well as the construction or building in flat is situated.”

(4)          Chief Promoter mentioned in the agreement is Opposite Party No.4 – Ravindra Tarachand Malve.

(5)