ORDER

Complaint under  Sec.12 of the CPA 1986 as amended upto date

Ms. Nipur Chandna, Member

          Complainant booked an office space for himself in the project of the OP named as “Kessel I Valley” Tech Zone at Greater Noida, U.P.  It is alleged by the complainant that at the time of getting booking in the project, OP had represented that the aforesaid project consists of four towers; each tower consisting of eight floors.  The OP had also shown the brochure and schedule of payment of him.  The complainant was allotted unit No. 1090 at first floor in the project, and as per the construction linked plan complainant had made the following payments to the OP :-

1. Booking amount of Rs.4,70,000/- against which OP had issued receipt dated 18.10.2006.
2. Amount of Rs.1,50,000/- against receipt dated 21.6.2008.
3. Amount of Rs.2,65,000/- against receipt dated 5.7.2008.

       It is further alleged by the complaint that he had received a demand letter dated 28.1.2009 from the OP stating that the work of laying roof slab of the 9^th floor had started. In pursuance to this letter complainant visited the office of the OPPOSITE PARTY NO.  and asked for the refund of money as the OP  had exceeded the floor levels agreed  between the parties.  It had been agreed that the project would consist of four towers of eight floors each and the OP had committed breach of the term of   allotment by entirely changing the building plans without his consent.

          Complainant wrote letter to the OP for the refund of his money.  The OP instead of refunding the amount sent various demand letter to him.  The complainant finally sent a legal notice  dated 2.3.2011 to the OP , which was duly replied  by the OP and it has admitted in his reply that as per the original project, four tower having eight floors each were to be constructed and the number of floor, were subsequently changed.  OP had also admitted that there has been considerable delay in the completion of project.     

     Despite, its admission OP had not done anything to resolve the complaint of the complainant.  Hence, the complaint.

     OP has contested the complaint and has filed W.S.   It has stated that the present complaint is not maintainable as the complaint is not covered under the definition of “Consumer” as per Section 2 (d) (ii) of the C P Act.  It is further stated by the counsel for the OP that the Complainant himself breached the terms and condition of the allotment by not paying the instalment amount as duly agreed and signed by him and as such was not entitled to any relief claimed.  It has prayed for the dismissal of the complaint.   

     Both the parties have filed their evidence by way of affidavits. 

     We have heard arguments advanced at bar and have perused the record.

          Some facts are not disputed by the parties.  Such as booking of the office space in the project of the OP .  The first question for our consideration is whether the complainant is a “Consumer”.

         We answer this question in the affirmative. The complainant has made necessary averments in the complaint as well as in his rejoinder and affidavits that the shop/office space was booked by him for earning his own livelihood by means of self employment.  He is a consumer within the meaning of Section 2 (1) (d) of C P Act.      

   Before filing the complaint the complainant had sent legal notice to the OP thereby calling it to refund Rs.8,85,000/- as the OP had committed breach of the terms of allotment by entirely changing the holding plan without his consent.

          In reply to his legal notice, OP had admitted that as per the original project plan  four towers having eight floors each were to be constructed and that the number of floors were subsequently increased without the consent of the complainant.  It is also admitted by the OP in its reply that there has been considerable delay in the completion of the project.  These averments are also made by the OP in its reply and evidence filed by it before this for in this complaint.

            OP in its reply had admitted the receipt of Rs.7,35,000/- but had denied receipt of Rs.1,50,000/-  Complainant on the other hand had placed on record the copy of the receipt dated 21.6.2008 issued by the OP in respect of Rs.1,50,000/- received by it which itself proves the receipt of the payment of Rs.1,50,000/- as well as by the OP.  

        In view of the above discussion, we are of the considered opinion that the complainant is a “Consumer” under Section 1(1) (d) of the Consumer Protection Act   1986.  OP had committed the breach of contract by increasing the numbers of floors for 8 to 18 without the consent of the complainant.  Moreover, the project of the OP had made no headway even after the lapse of six years of booking.  These acts of OP amount to deficiency in services, and unfair trade practice.   

    We therefore direct the OP as under:-

1. To refund to the complainant a sum of Rs.8,85,000/- (Rupees Eight Lac Eighty Five Thousand only) alongwith interest @ 15% p.a. for the date of filing of complaint i.e. 14.9.2011 till payment.
2. Pay to the complainant a sum of Rs.50,000/- (Rupees Fifty Thousand Only) as compensation for mental pain and suffering.
3. To pay to the complainant a sum of Rs.5000/- (Rupees Five Thousand Only) as a cost of litigation.  

      The OP shall pay this amount within a period of 30 days from the date of this order failing which they shall be liable to pay interest on the entire awarded amount @ 10% per annum.  If the OP fails to comply with this order, the complainant may approach this Forum for execution of the order under Section 25/27 of the Consumer Protection Act.

Copy of the order be made available to the parties as per rule.

File be consigned to record room.

      Announced in open sitting of the Forum on.....................