Per Shri D.N.Khamatkar, Hon’ble President:

The complainant had filed the consumer complaint on 07/05/2009 which was numbered as consumer complaint  no. 86/2009.  In his complaint the complainant has stated that he had filed consumer complaint before District Consumer Disputes Redressal Forum, Pune  (Forum below in short) which was subsequently numbered as 166/2007.  Ld.Forum below heard the complaint and at the time of delivering judgment and it was noticed by the Forum that the Forum does not have pecuniary jurisdiction and hence, the complaint was filed before the Commission along with the application for condonation of delay.  Facts in brief of the complaint are as follows:

          The complainant had booked a flat no. 201 admeasuring 841 sq.ft. in scheme of the opponent named as Nirmal Shrushti which was to be constructed in survey no. 1, Hissa no. 11 and 23 Peenac Colony, Karve Nagar, Pune and paid an amount of Rs.3,41,000/- as a booking amount to the opponent and accordingly, opponent has issued receipts thereof.  The total cost of the flat was agreed to Rs.22,50,000/- plus registration and stamp duty charges.  The opponent handed over the complainant the copies of tentative plan, list of amenities and sketch of the proposed building at the time of booking.  The complainant repeatedly contacted the opponent for executing the agreement however, the opponent avoided and told the complainant that the agreement will be executed after sanction of the plan by the Pune Municipal authorities.

          On 23/02/2007 the opponent had issued a letter to the complainant stating that the booking of the complainant  is cancelled and the advance payment received from the complainant deposited in his bank account with interest.  Hence, the complainant issued a notice through his advocate on 06/03/2007 stating that he had never expressed that he wants to cancel the booking of flat. 

As opponent has not paid any heed to his notice, the complainant has filed complaint with the following prayers:

          “   a) That the opponent be directed to execute register agreement with respect to said flat with the complainant at the agreed cost.

b)       The opponent be restrained from selling the said flat to any third

 party or from creating third party interest over the said flat.

c)     Ad-interim injunction as prayed separately may kindly be granted till the final disposal of the complaint..

d)    The complainant be awarded compensation of Rs.10,00,000/- for mental harassment caused to him.

e)     The complainant be allowed to alter or amend the complaint if necessary.

f)      The cost of this complaint be awarded to the complainant from the opponent.

g)    Any other just and equitable orders in the interest of justice may kindly be passed.”

          After filing the complaint the opponent has filed his written version contending that the application is not legal and proper and hence not maintainable.  There is delay in filing of the complaint and hence, the complaint deserves to be dismissed.  The complainant had filed the complaint before the District Consumer Disputes Redressal Forum intentionally and deliberately though he was aware of the pecuniary jurisdiction of the District Consumer Disputes Redressal Forum.  So there was no cause to file the complaint on 07/03/2007 as there exists no relationship of consumer and service provider between the complainant and opponent.   The reasons given for condoation of delay are not sufficient, bonafide and honest and therefore,  the complaint be rejected.

          On 19/11/2009 after hearing both the Counsels delay in filing of the complaint if any was condoned.  Both the Counsels stated that reply and documentary evidence was completed before District Consumer Disputes Redressal Forum itself and therefore, they requested to take up the matter for final hearing.

          The opponent filed their written version which is at page 64 of the compilation.  The opponent in his written version stated that contract between the complainant and opponent was not a concluded contract and hence, the present complaint did not fall within provisions of Consumer Protection Act, 1986.  Complainant himself has cancelled the booking of alleged flat and withdrawn the entire amount of booking paid together with interest. which were due by the opponent.  The opponent on request of the complainant deposited the said amount of booking with interest in the bank account of the complainant with the Saraswat Bank, Karve  Nagar, branch and hence, there remains no contract or agreement for sale and purchase of alleged flat.  He further stated that area of the flat no. 201 was not fixed at the time of payment of booking of the amount by the complainant to the opponent.  The contention regarding the particulars of the flat does not survive in view of the voluntary cancellation of booking of the flat by the complainant.  The opponent has not avoided execution of the agreement.  In fact, the opponent was not able to execute the agreement as alleged in favour of the complainant because the building plan  was not sanctioned by the authorities of  Pune Municipal Corporation till 23/02/207.  The opponent has not unilaterally sent the amount to the complainant.  The opponent states that sending letter dated 23/02/2007 by the opponent to the complainant was confirmation of cancellation of booking of the flat by the complainant and refund of entire amount to the complainant by the opponent.  The complainant had no right to issue notices to the opponent in view of his voluntary cancellation of the booking.  The booking receipts have no evidencary value as

opponent has already cancelled the booking.  The opponent is not legally obliged to render any service to the complainant on the basis of booking receipts.  There is no privity of contract/agreement of any nature subsist after 23/02/2007 between the complainant and opponent.  Complainant has voluntarily cancelled the booking of the flat.  Not only that this, complainant has withdrawn and received the amount of booking paid to the opponent.  The opponent therefore prayed that in view of the cancellation of booking of the flat by the complainant, the contract agreement for sale and purchase of flat has came to an end and there was no contract in force on the date of filing of the complaint by the complainant and therefore, the opponent  prayed that the complaint may please be dismissed.

          The complainant filed rejoinder to the written version filed by the opponent and submitted that there is still a subsisting contract as per the provisions of the Act between the complainant and opponent and complaint is  maintainable.  He further stated that complainant had never asked or requested or withdrawn the booking of the flat as alleged by the opponent.   Opponent be put to strict proof of any such cancellation.  On the basis of pleadings of both the parties, we frame following issues for our consideration:         

Issues:

1.     Whether there is deficiency in service on the part

     of opp.party?                                                                            Yes

2.     Whether the action of cancellation of booking of the flat             Yes

     booked by the complainant amounts to unfair trade practice?

3.     What order if any?                                                 As per final order.

 Observations:

          Admittedly, the complainant has booked a flat with the opponent in a scheme launched by opponent which was titled as “Nirmal Shrushti” in survey no.1, Hissa no. 11 and 23 Pinnac Colony, Karve Nagar, Pune.  The flat no.201 is on second floor.  The complainant has paid Rs. 2,28,000/-, Rs.1,01,000/- and Rs,12,000/- respectively on 16/03/2006 and the opponent has accepted the said amount by issuing receipts to that effect.  The same is at page no 16, 17, 18 of the compilation.  On page 19 there is description of the total amount for the consideration of the flat, area of the flat, per square feet rate given.  At page 22 there is tentative plan of the building.  At page 20 there is a letter dated 23/02/2007 issued by the opponent to the complainant.

          Careful perusal of the letter shows that it gives location of the scheme and the opponent has acknowledged that the complainant has booked the flat.  However, the opponent has stated that in the execution of the project because of technical problems a period of 10-11 months have elapsed and in the near future it is not possible to launch the project and he has explained the difficulties to the complainant and the complainant requested for returning the booking amount.  On the request of the complainant, the opponent has returned Rs.3,41,000/- and credited  in the Saraswat bank where the complainant has account on 22/02/2007 with interest Rs. 3,71,550/-.  On 23/02/2007 the opponent requested as he has returned the booking amount and  the original receipts of the payment with complainant may please be returned.  This letter is very important piece of evidence in deciding the present litigation.

          Thereafter, the complainant has issued a notice on 06/03/2007 to the opponent through advocate and objected to the unilateral cancellation of the booking and credited the amount in the separate account of the complainant.  He has further issued notice which is at page 28 of the complaint compilation.  The opponent replied to notice by his letter dated 14/03/2007.  On 07/07/2007 the opponent published an advertisement about availability of flat in Nirmal Shrushti apartment, Karve Nagar, Pune .  So from the aforesaid evidence it is crystal clear that the complainant has booked a flat in the scheme floated by the opponent and paid an amount of Rs.3,41,000/-.  In fact, it was legal responsibility of the opponent to execute the agreement.  However, the opponent has not executed the agreement.  On the contrary, the opponent has unilaterally cancelled the booking of the complaint.  The contention of the opponent that booking was canceled on the request of the complainant cannot be supported by  any evidence.  On the contrary, after receipt of letter dated 23/02/2007 from the opponent, the complainant has issued a notice dated 06/03/2007, public notice dated 10/03/2007.  The conduct of the complainant after receiving the notice dated 23/02/2007 proves beyond doubt that action of cancellation of booking by the opponent is unilateral. 

          Consumer Protection Act, 1986  is social legislation and specifically inacted to provide speedy justice to the consumers.  The Apex Court in case of  Lucknow Development Authority   V/s. M.K.Gupta  II (1993) CPJ 7 (SC)  has held that, “ in fact the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory.  Various legislations and regulations permitting the State to intervene and protect interest of the consumers have become a heaven for unscrupulous one as the enforcement machinery either does not move or it moves ineffectively, inefficiently, and for reasons which are not necessary to be stated.  The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy.  It attempts to remove the helplessness of a consumer which he faces against powerful business, described as, “ a network of rackets” or a society in which, “ producers have secured power” to “ rob the rest” and the might of public bodies which are degenerating into store house of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked.” 

          In the written version filed by the opponent he has taken a stand that booking was cancelled on request of the complainant and he has returned the booking amount along with interest thereon is not supported by any evidence filed by the opponent.  In his written version as well as his affidavit he has only taken a stand that booking is cancelled on the request of the complainant and he has returned the booking amount with interest.  This will not absolve the opponent from his legal responsibility.  In the case compilation there is a copy of building plan sanctioned by the Pune Municipal  Corporation dated 11/06/2007. No doubt if the opponent was not in a position to execute the construction project where the complainant has booked the flat, he had a right to cancel the booking.  However, without following  a due process of law he has  unilaterally cancelled booking which cannot be sustained in law.  The theory put forth by the opponent showing that the booking is cancelled on the request of the complainant is totally false. 

          In view of the aforesaid facts, it is proved beyond doubt that there is deficiency in service on the part of opponent and the action of the opponent amounts to unfair trade practice.  Hence, the observation of both the issues framed by us is in affirmative.  At the time of arguments advocate for the opponent has stated that building wherein the complainant had booked the flat is about to complete however, if the complainant is interested in a flat he will have to pay the amount as per prevailing rates.  This shows that the booking is cancelled for getting the prevalent price.  In view of the facts, we pass the following order:-

                                                :-ORDER-:

1.  Complaint is allowed.

2.  Complainant is directed to deposit/pay the balance of consideration as agreed at the time of booking to the opposite party within 60 days from the order and thereupon opposite party shall execute the necessary agreement/covenant in favour of the complainant and shall handover the possession of the flat to the complainant and the complainant to receive the same. 

3.  Opp.party to bear his own cost and pay cost of Rs.10,000/- to the complainant. 

4.  Copies of the order herein be furnished to the parties.