ORDER NO. 19 DT. 30.4.2013

MR. S.COARI, LD. MEMBER

MA-94/2012

          The record is placed today for passing necessary orders in respect of Misc. Application bearing No. MA-94/2012, wherein the OPs/Misc. Applicants have prayed for dismissal of the complaint case on the ground that the same is not being maintainable.

          The main contention of the Misc. Application, in brief, is that the petition of complaint filed by the complainant is vexatious, speculative and not maintainable under the law.  According to the Misc. Applicants, the flat has been booked in the name of a company and not by the complainant, Mr. Shamsul Huda Laskar.  According to the Misc. Applicants, all the transactions having been conducted by the company itself and there is no scope on the part of the complainant, Mr. Shamsul Huda Laskar, to initiate the present petition of complaint and on this score alone the petition of complaint is liable to be dismissed. 

          At the time of hearing it has been submitted by the Ld. Advocate for the Misc. Applicants that in this case the complainant has not come with clean hands and as such, he is not entitled to the reliefs as prayed for.  According to the Ld. Advocate, from the materials on record it has become evident that the complainant paid the booking amount of Rs. 5,12,875/- to the OP/Construction Company on behalf of M/s. Beeta Traders Linker, which clearly shows that the complainant in his personal capacity has not made the payment.  Besides that, according to the Ld. Advocate for the Misc. Applicants, as the complainant did not execute the formal agreement in respect of the flat in question, the complainant is not entitled to initiate the present proceeding thereby putting forward a case of deficiency in service at the instance of the OPs/Misc. Applicants.  The Ld. Advocate for the Misc. Applicants has also submitted that as the complainant did not proceed with the transactions, the Misc. Applicant Company had to cancel the booking made on behalf of M/s. Beeta Traders Linker.  In this connection, the Ld. Advocate for the Misc. Applicants has also relied upon two decisions namely 2013 (1) CPR 65 (NC) wherein the Hon’ble National Commission has held “Allotment of flat can be cancelled for default in payment” and also 2010 (3) CPR 394 wherein Maharashtra State Consumer Disputes Redressal Commission, Mumbai, has observed “Once provisional booking of flats stood cancelled, complainant does not have any subsisting rights to claim possession of flats……..”  While countering this proposition the Ld. Advocate for the Complainant, OP in the Misc. Application, has submitted before us that in this case the complainant being a Consumer and the sole proprietor of the Company itself booked the flat after advancing a considerable amount of money.  The OP/Applicant Company in order to frustrate the bonafide attempt on the part of the complainant to purchase the flat for value has unilaterally cancelled the agreement and tried to frustrate the interest of the complainant, which should be discouraged.  According to the Ld. Advocate, from the materials on record it would be quite evident that it is the complainant, who, in his personal capacity, has booked the flat and the points raised in the Misc. Application are not at all tenable and the same should be dismissed. 

          We have duly considered the submissions so put forward on behalf of both sides and having perused the materials on record including the Misc. Application and other documents are quite satisfied that since the booking money was deposited by the complainant on behalf of the company namely M/s. Beet Traders Linker, the complainant is precluded from taking a plea that he has booked the flat in his personal capacity.  Moreover, the correspondences entered into by and between the parties also indicate that it is M/s. Beeta Traders Linker which is the purchaser in respect of the flat in question.  Having considered the present Misc. Application in the light of above discussions we find merit in the Misc. Application and the same should be allowed.  In the result, the Misc. Application succeeds.

          Hence, it is ORDERED that the Misc. Application stands allowed on contest but without any order as to costs.  Consequently, the petition of complaint stands dismissed being not maintainable.