(आदेश पारीत व्‍दारा - श्री शेखर पी. मुळे, मा.अध्‍यक्ष)

 (पारीत दिनांक : 26 सप्‍टेंबर 2016)

      This complaint is regarding deficiency in service and unfair trade practice by the Opposite Parties. (OPs)

     OP 1 is a construction company and OP 2 is its sister concern. OP 3 to 5 are its partners. The complainant is an employee of Mumbai based company and resides at Kharghar Dist. Raigad and has filed the complaint through his Power of Attorney holder. The OPs were proposing to construct an apartment scheme under the name and style ¨Imperial Palm City Phase-I and II¨ at Rui, Tah. & Dist. Nagpur on land S.No. 23/2 and 23/3. The complainant booked one flat No.203 in the Phase-II of the said scheme for Rs.21,11,508/-. He deposited Rs. 1,100/-. Thereafter from time to time he paid Rs.2,10,100/- towards consideration of the flat. However no allotment letter was issued. Hence he wrote a letter on 22.7. 2012 by e-mail to the OP for issuing allotment letter and till then not to deposit the cheque issued by him towards installments. The OP 1 by letter dt/ 13.9. 2012 informed him that the flat booked by him was cancelled for non payment of installment and the payment made by him would be refunded in due course as per company policy. On inquiry he was given option to chose a flat in Phase-I and was assured that payment made by him would be adjusted towards that flat. But he was not ready for such option or adjustment and so requested for refund. He filled in cancellation form on 6.11. 2012. Thereafter he pursued the matter several times by e-mails but to no avail. On 4.6. 2013 he personally gave a letter to the OP  for refund. Then the OP gave 9 post dated cheques for the amount to him towards refund. But an amount of Rs.1000/- was withheld by them illegally.

     When he presented those cheques to bank, all but 3 cheques were dishonoured for insufficient funds. As such he received only Rs.75,000/- and Rs.1,35,100/- is still due from them. He several times tried to get back his amount but in vain. Alleging unfair trade practice and deficiency in service he filed the complaint and claimed Rs.1,35,100/- with interest and compensation and cost.

     OP filed reply at Ex. 8 and raised preliminary objections that the transaction was commercial one and it is a civil dispute, therefore forum has no jurisdiction. Admitting booking of flat No. 203 in Phase-II in the scheme for R.21,18,508/- and payment of Rs.1100/- , it is stated that as per payment schedule he was required to deposit 10% amount within 7 days and further 10% within 30 days. But he committed breach of schedule. He was to deposit Rs. 4,22,000/- but he deposited only Rs.2,10,000/-. He did not pay remaining amount despite demand letters. It is admitted that he paid Rs. 2,10,100/- . Since he failed to pay remaining amount allotment letter was not issued. The booking was then cancelled. Thereafter he was given an option to chose a flat in Phase-I, but he requested for refund.

      The complainant himself cancelled the booking and so he was no longer their consumer. But even then OP refunded the amount by cheques but only 3 cheques were cleared. He was told to inform them before presenting the cheques. But those were presented without informing them to show that they committed unfair trade practice. The amount paid by him is invested in construction of Phase-I and hence it is difficult to refund the amount immediately. It is thus prayed to dismiss the complaint.

     Heard learned counsels for both the parties. Perused documents. After considering rival submissions, documents and facts we record our findings for the reasons given below.

FINDINGS  AND  REASONS

     Considering the reply by the OP only issues before us is whether the complainant is a defaulter in paying amount as per payment schedule and whether cancellation of booking by the OP is legal. There is no dispute about the amount which has been paid by him. The complaint is defended on three grounds, viz. the complainant has ceased to be consumer on cancellation of booking, he is permanent resident of Mumbai and flat was booked for investment purpose, the complainant himself was defaulter, and the complaint is barred by limitation. Since there is no challenge to other facts of the complaint, we would deal with these objections.

     Admittedly the complainant has cancelled the booking of the flat and in that respect has filled in the cancellation form. It is necessary to consider what prompted him to cancel the booking. According to the complainant even after paying Rs. 2.10 lakh, the OP did not issue him allotment letter of the flat. In this respect he had sent e-mail to OP on 22.7.2012 and asked the OP to hold back the cheque for Rs.2.10 lakh till issuance of allotment letter. Rs.2.10 was already paid. To this letter there is no denial from the OP. That means he has paid Rs.2.10 lakh and further deposited the cheque for Rs. 2.10 lakh. When the booking was cancelled no amount was refunded. Therefore we do not accept the contention of the OP that on cancellation of booking the complainant ceased to be consumer. Mere filing cancellation form does not relieve the OPs from their liability towards their consumer. Therefore the first objection is rejected.

     It is next argued that the complainant is a permanent resident of Mumbai and he had booked the flat for investment purpose only. Such transaction amounts to commercial transaction and therefore consumer complaint is not tenable. It is to be noted that the complainant has specifically stated that he is resident of Saoner Dist. Nagpur and because of service he has been posted in Mumbai. It is pertinent to note that OPs in their reply to para 1 of the complaint have stated that the contents of the said para are matter of record and so need no reply. That means they admit what is stated about residence of the complainant. Therefore now they cannot raise the controversy about the said transaction and there is no merits either in it.

     The OPs have alleged that the complainant was a defaulter and therefore his booking was cancelled. It is contended that as per the payment schedule he was to pay 10% amount within 7 days and further 10% amount within 30 days. So considering the total cost of the flat he was required to pay Rs. 4,22,000/- but he paid only Rs. 2.10 lakh. It is thus contended that once the contract is settled, its terms are binding upon both the parties. The complainant has failed to adhere to the payment terms and thus become defaulter. Reliance is placed on Mahanagar Gas Ltd. v/s Babulal Uttamchand 2012 (4) Mh.  L. J. 344. However in this case no agreement was reduced in to writing. There was no contract between them. Therefore this contention is not correct. Besides it is stated by him that after depositing Rs.2,10,100/- he deposited further amount Rs.2.10 lakh by cheque. Since no allotment letter was issued he asked the OPs by e-mail dt. 22.7.2012 not to encash those cheques till then. That means he has deposited Rs. 4,20,100/- out of which Rs. 2,10,100/- was enchashed. So as per the terms he has deposited 20% amount and it was accepted by the OPs, yet his booking was cancelled. We do not see anything wrong if he asked the OPs not to encash the cheques till allotment letter was issued. Moreover the OPs should have issued him allotment letter on receiving initial amount Rs.2,10,100/-. This was deficiency in their service.

     The complaint is said to be barred by limitation. It is contended that the booking was  cancelled on 13.9. 2012 and from that date limitation of 2 years started. The complaint was filed on 23.12. 2014 i.e. after 2 years. Reliance is placed on 2 judgments,  Haryana U.D. Authority v/s B. K. Sood (2006) 1 SCC 164 and  Devendra Kumar v/s U.P. Awas Vikas Parishad I (2016) CPJ 188 (NC). In both the cases the complaints were dismissed on bar of limitaion.

     We do not agree with this contention. Though the booking was cancelled on 13.9.2012, he was later offered another flat in Phase-I. But he refused. He then requested the OPs to refund the amount. But instead of it the OPs issued him allotment letter on 4.6.2013 of flat no 203 in Phase -II. This allotment letter was given after cancellation of booking. That means the OPs subsequently revoked the cancellation. Since the complainant insisted on refund, the OPs gave him 9 post dated cheques towards refund in installments. The first cheque was of dated 12.11. 2013 and last one was  of 12.7.2014. All but 3 cheques were bounced vide memo dated 27.11. 2013. Thus limitation started from the date when the cheque was bounced. As the complaint is filed within 2 years from that date it is well within limitation. Hence this objection is overruled.

     Next it is contended that the complaint is filed by POA holder and he has no authority to depose on behalf of the complainant. Reliance is placed on Janki Vashdeo Bhojwani v/s Indusind Bank AIR 2005 SC 439.  In our opinion this reliance and contention is misplaced. The ruling is given on the provisions of Order 3 Rule 1 and 2 of the Code of Civil Procedure, which is not applicable to proceedings before consumer forum.

     The counsel for OP submitted that the amount paid by the complainant is invested in making construction and therefore now it is not possible to refund the same. This submission is not acceptable. Because as per the complainant no construction is made and the OPs had issued cheques towards refund of amount. The OPs submitted that slab of third floor is completed. Nothing is placed on record to verify what is the stage of construction. There is only word against word. That apart, the OPs cannot avoid to refund the amount once he cancelled the booking, on the plea that he has invested it in construction.

     Upon considering the facts and rival submissions we are of the opinion that the complainant deserves refund of his amount along with compensation. Hence we allow the complaint and pass the order.

ORDER

1. The complaint is partly allowed

2)  OPs are directed to refund amount of Rs.

1,36,100/- with 12%     p.a. interest jointly and severally from 7.10.2014 till full     realisation to the complainant.

3)   OPs shall further pay jointly and severally compensation of     Rs.15,000/- for mental and physical harassment and      litigation cost Rs. 5000/- to the complainant.

4)   The compliance of the order shall be made within 30 days from receipt of the order.

5)  Copy of the order shall be given to both the

parties free of    cost.

Nagpur.

Date – 26/09/2016