Per Shri S.R.Khanzode, Hon’ble Presiding Judicial Member:- This is a complaint against developer and builder (hereinafter referred as a “builder”) for the alleged deficiency in service in not executing agreement of sale and to restrain the builder to not to part with the possession of flat in question. Opp.party no.1/Mr.Sudhir Kumar runs his construction business in the name and style of opp.party no.2/M/s.Everest Developers and opp.party no.3/National Dyes is also a concern belonging to opp.aprty no.1- Mr.Sudhir Kumar. It is the case of complainant that he agreed to purchase flat no.605 situated on 6th floor, Lavender, Kolshet Road, Balkum, Thane (W) for total consideration of Rs.25,49,783/- from the opp.party/builder and paid Rs.1 Lakh as earnest amount on 20/04/2009 which was the payment duly acknowledged by the builder. However, the builder failed to execute the agreement as per Maharashtra Ownership Flats Act, 1963 (hereinafter referred as MOFA). The complainant sent a notice dated 27/08/2009 to the builder but in vain and therefore, this consumer complaint is filed. The builder appeared and resisted his claim as per his written statement. According to the opponent, the complainant has suppressed material facts. Soon after the booking of the flat and payment of earnest amount, the builder had written to the complainant on 24/04/2009 requesting him to furnish information as to whether he desired to pay the amount of consideration on his own or by raising housing loan and also to deposit amounts of stamp duty of Rs.1,10,100/-, registration fee of Rs.25,500/- and legal fees of Rs.3,000/- so that they could get the agreement registered. However, there was no response from the complainant. Complainant also failed to pay remaining 15% amount of the agreed price in order to register the agreement. Therefore, on 20/07/2009 booking of the complainant was cancelled and accordingly, the fact was communicated to the complainant. Thereafter, advocate’s notice dated 27/08/2009 was issued by the complainant without making any reference to the cancellation of the booking done prior to it. Under these circumstances, it is submitted on behalf of the builder that there is no deficiency in service on its part and as such, the complaint deserves to be dismissed. We heard submissions of Adv.Mr.Sudeep Dasgupta Proxy for Adv.Shri Subhash P.Nalavade for complainant and Adv.Mr.Tushar Kale Proxy for Adv.Ms.Shanta Rao for opp.parties. It is pertinent to note that in spite of communications dated 24/04/2009 asking the complainant to comply accordingly, supra, the complainant failed to give any reply to it. There is no reference made either in his complaint or in the supporting affidavit about this communication. Similarly, the complainant also failed to make any reference to subsequent cancellation of booking and communication received by him in that respect. The complainant only made reference to the notice dated 27/08/2009 which was sent by his lawyer- Shri Rohit J.Kurmi. But in his notice there is no reference to above referred communications. This shows the conduct of the complainant. The builder supported his written version by notarized cum verification affidavit filed by Brig.Sudhir Kumar (Retd.)/opponent no.1 and Vice President-Sales of opponent no.2 and 3 of the builder. This version finds corroboration from the documents filed on record, particularly, copy of communication dated 24/04/2009, copy of cancellation of booking dated 17/07/2009 and e-mail dated 20/07/2009 on same subject. He also referred to the notice received by the complainant sent by builder 16/09/2009 and another communication dated 31/10/2009, whereby amount of earnest money of Rs.1 Lakh which was returned by Demand Draft dated 21/10/2009 but could not be delivered to the complainant for no fault of the builder. Complainant was requested to visit the office of the builder to collect the same. Considering this aspect, it could be seen that action on the part of the builder to cancel the booking cannot be held as an arbitrary or affected to by any vices nullifying the termination or cancellation of booking. Therefore, it cannot be said that builder is guilty of deficiency in service within meaning of Consumer Protection Act, 1986. Hence, the complaint deserves to be dismissed. We hold accordingly and pass the following order: :-ORDER-: 1. Complaint stands dismissed. 2. In the given circumstances, there is no order as to costs. 3. Copies of the order herein be furnished to the parties. Nbh |
