Per Shri B.A.Shaikh, Hon’ble Presiding Member.
1. This appeal is filed by original complainant feeling not satisfied by an order dated 20/04/2016 passed by Additional District Consumer Forum, Nagpur, by which the consumer complaint bearing No.RBT/CC/12/765 has been partly allowed.
2. The case of the original complainant/appellant herein as set out in consumer complaint in brief is as under.
a) The original opposite party (for short O.P.) No.1/respondent No.1 herein is a Managing Director of Reward Real Estate Company Pvt.Ltd. and original O.P.No.2/ respondent No.2 herein is a Manager of Empress City. The O.P.Nos.1 and 2 launched a project for construction of a building for commercial purpose in the name and style as “Empress City”. They gave public advertisement about the same through daily news paper and hoardings. The original complainant/appellant herein wanted to purchase one shop in that building. Therefore on 10/07/2008 he booked one shop bearing No.211, in that building admeasuring 342 Sq.Ft. for a consideration of Rs.11,97,000/-, by depositing with the respondents booking amount of Rs.3,420/-. The respondents issued receipt bearing No.020 dated 10/07/2008 about the said booking of the shop by the appellant. The said price of the shop was to be paid in installments. The appellant paid first installment of Rs.51,000/- on 10/07/2008 to the respondents by cheque No.359952. The respondents issued receipt No.021 on 10/07/2008 to the appellant about the same.
b) Thereafter the respondents did not demand further installments from the appellant though appellant was ready to pay said further installments. The respondents issued a letter dated 09/03/2011 about allotment of the shop to the appellant. Moreover the respondents also issued another letter dated 09/03/2011 to the appellant advising the appellant to obtain financial assistance from the bank for payment of the balance price.
c) However, though the appellant was ready to pay balance amount and he requested the respondents to accept the balance price, but they did not accept the same. Therefore the appellant issued legal notice through advocate on 07/10/2012 to the respondents requesting them to accept the balance consideration and to execute the sale deed of the shop. However after receiving that notice, respondents did not give positive response. Hence the appellant filed consumer complaint under section 12 of the Consumer Protection Act, 1986, seeking direction to the respondents to accept from him balance consideration of the shop and to execute the sale deed of the same and give possession of the same to him and also to pay him compensation Rs.50,000/- for physical and mental harassment and litigation cost of Rs.25,000/- and not to alienate the said shop to any other person.
3. The respondents resisted the complaint by filing common reply. The sum and substance of the submission of the respondents as made in that reply is as under.
a) There is no relationship of service provider and consumer in between the respondents and the appellant as there is no agreement of sale entered in to between both the parties. Merely booking of shop by paying paltry token amount does not establish the said relationship. Moreover the complaint is in the nature of suit for specific performance of contract and the District Forum has no jurisdiction to entertain the suit for specific performance of contract. The appellant can avail the remedy before Civil Court. Hence the complaint is not maintainable before the District Forum. Moreover the alleged transaction is in the nature of commercial transaction and complaint under Consumer Protection Act is therefore not maintainable.
b) The respondent No.2 Empress City is a name of Real Estate Project at Nagpur being executed by respondent No.1. Therefore the respondent No.1 is the only defending party in the complaint. It is not disputed that the appellant had shown interest in purchasing shop No.205 situated on the second floor of the building having the name as “Empress Megabyte” of the project title and style as Empress City Nagpur, for total consideration of Rs.11,97,000/- + Rs.1,20,000/- towards other amenities. The appellant paid Rs.3,420/- and Rs.51,000/- i.e. total Rs.54,420/- as a token/earnest money. Thereafter the appellant disappeared from the scene. The appellant could not arrange the balance amount and orally sought time from the respondents. The appellant finally on 09/03/2011 visited the office of respondents and expressed his inability to arrange the funds and requested the respondent to suggest any financer who could extend the loan. Therefore as per request of the appellant, a letter dated 09/03/2011 was issued by the respondents stating that the shop was booked by the appellant. The respondents had asked the appellant to visit the bank and to get the agreement of sale executed within seven days, but he failed to do so.
c) Thus the appellant had no fund to accomplish the deal and he only wanted to create his right over the property by paying paltry amount with malafide intention. The appellant wants to get huge financial benefit after lapse of more than five years. The respondents are not bound by any contract. Thus there is no contract in between both parties and hence the appellant is not entitled to claim any relief by filing the complaint. Hence it was requested by the respondents that complaint may be dismissed.
4. The appellant after filing of aforesaid reply by the respondent, filed rejoinder to the complaint and denied the allegations made in the reply of the respondent and submitted that full amount of consideration was ready with him for payment to respondents but at no point of time the respondents accepted the same from him. In that rejoinder to the complaint, the appellant stated shop No.205 on second floor admeasuring 342 Sq.Ft. was agreed to be sold by the respondents to him for a consideration of Rs.11,97,000/-.
5. The appellant alongwith the complaint filed copies of two cheques for Rs.3,420/- and Rs.51,000/- dated 10/07/2008 given by him to the respondents as stated in the complaint. The appellant also filed two receipts for the aforesaid amount dated 10/07/2008 issued by the respondents in his name showing that the said amounts were paid towards booking of shop No.205 and towards its purchase. The appellant also filed letter of allotment dated 09/03/2011 issued by the respondents about allotment of shop No.205 described in the complaint for a valuable consideration of Rs.11,97,000/- which was to be paid alongwith other charges of Rs.1,20,000/-. The appellant also produced letter dated 09/03/2011 issued by the respondents to him advising him to avail financial facility from the bank namely State Bank of India. The appellant also produced legal notice issued through advocate and acknowledgment about service of that notice to the respondents.
6. The advocates of both parties also filed written notes of arguments before the Forum below. During the course of hearing, the appellants’ advocate also produced before the Forum below copy of judgment and order dated 26/03/2009 in consumer complaint No.304/2008 in the case of Sudesh Champatrao Chopde…..V/s…..Director Empress City and Contractor of R.R.S.Co Pvt.Ltd., as passed by District Consumer Forum Nagpur by which direction was given to the same respondent to execute the sale deed of shop No.211 of Empress City by paying balance consideration and also to pay him litigation cost of Rs.3000/-.
7. The District Forum below after hearing both parties and considering evidence brought on record came to the conclusion under impugned order that as the complaint is relating to the same shop No.211 of Empress City and as in the aforesaid consumer complaint No.304/2008 direction has been already given to the same respondents to execute sale deed of that shop No.211 in the name of Sudesh Champatrao Chopde, the appellant is not entitle to get sale deed of the same shop No.211. Hence the Forum instead of giving direction for sale deed, directed the respondents to refund Rs.54,420/- with interest @ 12% P.A. from 03/11/2012 to the appellant and also to pay him compensation Rs.5,000/- for physical and mental harassment and litigation cost of Rs.2,000/-.
8. As observed above feeling not satisfied by that order the original complainant has filed this appeal. The appellant also filed written notes of arguments. The respondent Nos.1, 2 and 3 were duly served with the notice of this appeal as seen from acknowledgements received duly signed by them. Advocate Shri Vijay Lalwani appeared for the respondents and filed his power on 24/10/2016. However though ample time was granted by this Commission to the advocate of the respondents to file written notes of arguments, the same was not filed by him. Moreover none appeared for the respondents with effect from 14/06/2017 for filing written notes of arguments and for final hearing though appeal came to be adjourned from 14/06/2017 till this date for eight times as seen from the Order Sheets/Rojnamas. Therefore we finally heard the appellants’ advocate Shri P.N.Deshbhratar and we also perused the entire record and proceedings of the appeal.
9. The learned advocate of the appellant has taken us through the aforesaid receipts, allotment letter, rejoinder filed by the appellant to the complaint and written notes of arguments filed before the Forum by the appellant and submitted that in all those documents the correct number of the shop was mentioned as 205 which was agreed to be sold by the respondents to the appellant, for a consideration of Rs.11,97,000/- and out of that amount appellant paid Rs.54,420/-. He further submitted that due to typographical mistake number of that shop in the consumer complaint was mentioned as 211 instead of 205. He also submitted that the judgment and order in the consumer complaint No.304/2008 dated 26/03/2009 was produced by the appellant before the Forum below only to show that in identical case the Forum gave direction to the respondent to execute the sale deed of another shop bearing No.211. Thus according to learned advocate of the appellant, in that consumer complaint No.304/2008 shop No.211 was to be purchased by another complainant, where as in the complaint of present case a distinct shop bearing No.205 was agreed to be sold by the respondents to the appellant. Hence he argued that the Forum below over looked the various documents filed on record and the reply of respondents in which shop No.205 was correctly stated and the Forum erred in coming to the conclusion that the present complaint is relating to shop No.211 though actually it was relating to shop No.205. Hence he requested that direction needs to be granted to respondents to execute sale deed of shop No.205 by accepting balance consideration as per allotment letter and he also claimed compensation and cost alongwith the said direction.
10. As discussed above, the respondents appeared through advocate, they have not advanced any arguments in the present appeal. We find substance in the submission of learned advocate of the appellant in as much as the payment receipts dated 10/07/2008, the allotment letter dated 09/03/2011, notice dated 07/10/2012 issued by the appellant to the respondents and served to them, the reply filed by the respondents to the consumer complaint, rejoinder filed by the appellant to the complaint and written notes of arguments filed before the Forum by both the parties specifically undisputedly reveal the correct shop No. as 205 of the Empress City which was booked by the appellant with the respondents. The Forum below has not considered the said shop No.205 mentioned in all those documents. Moreover it was neither the case of appellant nor of the respondents that shop No.211 was booked by the appellant with the respondents. Therefore the Forum below erred in holding that as the direction has been already given in another complaint bearing No.304/2008 vide order dated 26/03/2009, for execution of the sale deed relating to shop No.211, no direction can be given in the complaint of the present case for execution of the sale deed of the same shop No.211 infavour of the appellant. Therefore the direction given under the impugned order to the respondent to refund Rs.54,420/- with interest needs to be set aside by modifying the said direction.
11. It is seen that the appellant in the consumer complaint has sought sale deed alongwith possession of the shop in question bearing No.205. He is ready to pay balance consideration. It is not the case of respondents that they cancelled the booking of shop No.205 for non payment of the balance consideration by the appellant. We find that since admittedly the shop No.205 was booked by the appellant with the respondents by paying Rs.54,420/-, the relationship of consumer and service provider in between both the parties is created and consumer complaint filed before the forum is maintainable under Consumer Protection Act, 1986. Moreover we find that there is no evidence to show that appellant wanted to purchase shop No.205 for resale. Hence it can not be said that the transaction made in between both the parties is of purely commercial in nature. Therefore the complaint is maintainable before the Forum.
12. We also find that the respondents have not filed any appeal against the impugned order. Therefore now the respondents cannot raise a plea that the complaint filed before the Forum was not maintainable.
13. It is the simple case of respondents that the appellant had no fund to accomplish the deal. In our view when the respondents have not cancelled the aforesaid deal/contract by issuing any notice and when it is also not the specific case of the respondents that they
already cancelled the said contract then the appellant is entitled to pay the balance consideration and to get the sale deed of the shop No.205. The appellant has already shown his willingness and readiness to pay the balance consideration. Thus in the absence of any evidence in rebuttal, we accept the case of the appellant that he was ready and willing to pay balance consideration but the respondents refused to accept the same and hence the balance consideration could not be paid.
Therefore we hold that the appeal deserves to be partly allowed. Accordingly we proceed to pass the following order.
// ORDER //
- The appeal is partly allowed as under.
- The Directions given under impugned order to the respondents are substituted and modified as under.
- The respondents herein/original O.P.Nos.1 and 2 are directed to execute the sale deed of the shop No.205 admeasuring 324 Sq.Ft. of the N.I.T.City Mall (Empress City), infavour of the appellant by accepting from him balance consideration of Rs.11,42,580/- towards the balance price and Rs.1,20,000/- towards other charges, as per the allotment letter dated 09/03/2011, at the time of the sale deed and also to give possession of the said shop to the appellant on the date of sale deed.
- The appellant shall bear the expenses for execution and registration of the sale deed.
- The respondent Nos.1 and 2 herein/original O.P.Nos.1 and 2 shall also pay compensation of Rs.10,000/- for physical and mental harassment and litigation cost of Rs.10,000/- to the appellant.
- The aforesaid order be complied with by the respondents within a period of three months from today.
- Copy of the order be furnished to both parties free of cost.
