BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION.
KAMRUP
C.C.No.59/2017
Present: I) Shri A.F.A.Bora, M.Sc.,L.L.B.,A.J.S(Rtd.)-President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc Former Dy
Director, FCS & CA -Member
Sri Prabhash Chandra Deva Sarma - Complainant
S/O Late Joy Kanta Deva Sarma
P.address- Dibrugarh Red Cross Rd,Khalihamari
T.address- Chandmari, Milanpur, House No.1,
Guwahati, P.O. Chandmari,
District Kamrup(M), Assam.
-vs-
I) M/S Quantum Developers - Opposite parties
Sarania , Guwahati, By lane -6,
House No.16 District Kamrup(M), Assam
Represented by Nilotpal Choudhury,
Authorised Signatory.
2) Sri Nilotpal Choudhury,
Age- 45 years
Authorised Signatory of Quantum Developer
Sarania , Guwahati, By lane -6,
House No.18 District Kamrup(M), Assam
Appearance
Learned advocate Mr. A.Chetia, Mr.P.Deka, Mr.M.Das , Mr.S.Kakoti, Mr.S.P.Chittawat for the complainant .
Date of filing written argument:- 15.112019
Date of Exparte oral argument:- 29.1.2021
Date of judgment: - 23.2.2021
EXPARTE JUDGMENT
1) This is a petition u/s.12 of the consumer protection Act 1986 filed by one Sri Prabhash Ch. Dev Sarmah against M/S Quantum Developers and Sri Nilutpal Choudhury authorised signatory of the M/S Quantum Developers as opp.parties .
2) The fact narrated in the complaint petition is that complainant after his retirement wanted to purchase a flat for residential purpose at Guwahati and meet opp.party No.2 who told him that he was constructing flats in different part of Guwahati in the name of the firm opp.party No.1. The opp.party No.2 showed the petitioner a plot of land where construction was going on for multi stories building and after discussion complainant booked a flat on 16.3.2016 and paid Rs. 4,00,000/- through cheque bearing no. 16999 of Assam Gramin Bikas Bank dtd. 16.3.16 and a money receipt was issued to the complainant by opp.party No.2. But after payment of the aforesaid amount the complainant was bound to cancel the booking for non fulfilment of his requirement and communicated the same to the opp.party No. 2 in writing requesting him to return back the advance amount of Rs. 4,00,000/- (Rupees four lakh) . But opp.aprty No. 2 have not return the money till date though he was requested by the petitioner personally for several times. Ultimately complainant wrote a letter on 14.5.2016 and 26.5.2016 requesting the opp.party to return back the advance amount . It is submitted that cancellation request was made and informed the opp.party by the complainant on 4.4.16 i.e. after 19 days from the date of booking . In the mean time opp.party No.2 sent a letter on 1.7.2016 to the complainant stating that cancellation will be possible only after finding a fresh allottee which will take time. After one year 2 months not getting any positive response the complainant issued a legal notice on 28.1.2017 demanding a advance amount , but opp.aprty have not responded and accordingly the petitioner come up with the present petition seeking remedy for a order for return back of the money of Rs. 4,00000/- along with interest @ 4% per annum from 16.3.20016 till realisation and also a compensation amounting into Rs. 80,000/- etc.
3) The petition was registered u/s 12 of C.P.Act.1986 and notices were issued . Thereafter a newspaper publication was made in a local vernacular daily issuing notice upon the opp.party and even after that the opp.party have not turned up and matter proceeded exparte against them.
4) The complainant side have advance their argument and we have carefully gone through the statement of the complainant and his documents and document testified from Ext. 1 to Ext.5 . The pertinent question that has been raised in this commission is whether particular form of application regarding construction of apartments can be considered under the purview of consumer Protection Act.1986. Here the complainant counsel cited a case law and draw our attention as to the proposition of law established by the Apex court. The case law citied
“Faqir CHns Gulati ........ Appellant
-Vs-
Uppal Agencies Private Ltd. and
Another ............ Respondents
Civil Appeal No,.3302 of 2005 decided on July 10, 2008”
A Consumer Protection - Services- Housing- Building Construction agreement between landowner and builder- Agreement requiring builder to construct an apartment building on owner’s land and share the constructed area with owner in consideration of entire cost incurred and services rendered by him-
5) The law established in the matter is that in such a case the land owner would be a consumer and the builder would be a service provider and the Consumer and complaint was held maintainable. The relevant paragraph of the aforesaid judgment of the Hon’ble Supreme Court is quoted here in below as mentioned in para 20 of said judgment read as below
“ 20 There is no dispute or doubt that a complaint under the Act will be maintainable in the following circumstances:
(a) Where the owner/holder of a land who has entrusted the construction of a house to a contractor, has a complaint of deficiency of service with reference to the construction.
(b) Where the purchaser or intending purchaser of an apartment/flat/house has a complaint against the builder/developer with reference to construction or delivery or amenities.”
Similarly the complainant side cited another case law
“ (1994)1 Supreme Court Cases 243
Lucknow Development Authority.... Appellant
-Vs-
M.K.Gupta ... Respondent
Civil Appeal No. 6237 of 1990 with SLP (C) Nos. 659 of 1991 and 16842 of 1992 ; C.A.Nos 3963 of 1989 , 5534, 6236, 5257 and 2954-59 of 1992, decided on November 5, 1993.”
6) In the aforesaid law a reference has been made of an issue as to the housing activity carried on by the statutory authority or private builder or contractor which came within the purview of the C.P.Act after its amendment by the ordinance No. 24 in 1993. Referring to para 3 of the cited law it is submitted by the complainant that section 11 of the C.P.Act allow entertain a complaint depending a valuation of goods or services or compensation claim and it is a socio economic legislation and is directed towards achieving public benefit .
7) In the present case complainant was examined as C.W. 1 who made statement on oath stating that he booked a flat from opp.party no.1 on 16.3.16 by paying a sum of Rs.4,00000/- through cheque bearing No. 16999 of Assam Gramin Bikas Bank dtd. 16.3.2016 and the same was encashed by opp.party. But the complainant due to non fulfilment of objective /requirement by the opp.party No.2 , requested the opp.party No.2 to cancel the booking of the flat and to return the advance amount of Rs.4,00,000/- already paid by him . The complainant also met the opp.party No.2 for several time and requested him to return the advance amount , but the same has not been returned yet.
8) The opp.party inspite of news paper notification have not turned up and presented his grievances against his complaint if any. There is no denial of aforesaid advance money paid by the complainant and the documents placed on record by the complainant as Ext. IV make it clear that there is no denial of payment of advance money by the opp.party. The opp.party have not turned up to show any such condition for not returning the advance money and keeping it reserve for unlimited period till any allottee is found . Hence we are of the opinion that the cancellation of the booking is as not denied the complainant is entitled for return of the advance money .
ORDER
The case of the complainant has merit on it and it is ordered that opp.party No. 2 representing opp.party no.1 will return back the advance money amounting to Rs. 4,00,000/- to the complainant within 45 days from the date of delivery of judgement and have to pay interest on that advance money @ 4% from the date of filing of the complaint petition i.e. 20.6.2017 till the date of delivering judgment . No specific compensation is awarded , but the opp.party will have to pay the cost of the proceeding amounting to Rs. 10,000/- (Rupees ten thousand)only to the complainant . On failure of the opp.aprty to make the payment within 45 days of passing this order , he will have to pay an interest @ 12% per annum on the entire decreetal amount from the date of judgment till realisation.
Given under our hand and seal of the District Commission, Kamrup, this the 23rd day of February,2021.
Md J.Islam Smt A.D.Lahkar Sri A.F.A Bora
Member Member President
Dictated and corrected by me
Sri A.F.A Bora
President,
District Consumer Commission, Kamrup.
Typed by me
Smt Juna Borah
Stenographer, District Consumer Commission, Kamrup.
