Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
These two appeals bearing Nos.987 & 988/2010 are disposed of by common order since they involved identical facts and common question of law. Appeal No.987/2010 is arising out of order dated 01/07/2010 passed in consumer complaint No.35/2008, Shri Mohan Dagdu Mahadik V/s. Ashapura Habitats Pvt. Ltd. by District Consumer Disputes Redressal Forum, Thane (‘Forum below’ in short). Appeal No.988/2010 arising out of order dated 01/07/2010 in consumer complaint No.36/2008, Shri Sanjeev Kumar V/s. Ashapura Habitats Pvt. Ltd., by Forum below. Reference to appellants-Shri Mohan Dagdu Mahadik and Shri Sanjeev Kumar is hereinafter made as ‘the complainant’ while respondent-Ashapura Habitats Pvt. Ltd. in both these appeals is hereinafter referred to as ‘Builder’ for the sake of convenience. The builder is org. opposite party in both the consumer complaints.
Undisputed facts are that the builder took a project for developing a mini township consisting group of buildings at Ghodbunder Road, Thane. The project was known as ‘Sanghavi Hills’ consisting of several buildings. Complainant-Shri Mohan Mahadik booked a flat No.403 situated on 4th floor, admeasuring 550 sq.ft. on 28/01/2006 which he agreed to purchase for `8,05,375/- and paid `1,55,375/- as booking amount. Said flat is situated in a building known as ‘Aravali’.
Similarly, complainant-Shri Sanjeev Kumar agreed to purchase flat No.C-506 situated on 5th floor having area 790 sq.ft. situated in the building known as ‘Saptagiri’ for total consideration of `12,64,000/- on 04/08/2006 and paid `51,000/- as booking amount. Agreements in both the cases were to be executed later on. However, subsequently, since the Government has notified the land on which these buildings were to be constructed as a ‘Private Forest Land’, where no construction was allowed and it was also stated that as per instructions received from the Government, the Sub-Registrar was asked not to register any agreement related to the property covering said land. In view of these developments, on 14/12/2007 explaining the situation, the builder cancelled the agreements with Mr.Mohan Mahadik and refunded his booking amount. Complainant/Mr.Mohan Mahadik did not accept said cancellation and returned the cheque by which said amount was refunded and filed consumer complaint No.35/2008.
Likewise, informing these developments whereby continuation of project was not possible, the builder cancelled the booking of Mr.Sanjeev Kumar also and returned the amount of booking of `51,000/- to him. He also did not accept said cancellation and returned the cheque of the amount received by way of refund and filed consumer complaint No.36/2008.
Forum below allowed both the consumer complaints and directed the builder to receive balance consideration and hand over possession of the flats to the respective complainants and to pay compensation of `10,000/- and cost of `5,000/-. Feeling aggrieved thereby, the builder preferred these two appeals.
We heard Mr.P. Patil, Advocate for the appellant and Mr.Pravartak Pathak, Advocate Proxy for Mr.Uday Warunjikar, Advocate for the respondent. Perused the record.
In the instant case, once the booking was cancelled vis-à-vis agreement which yet to take place and the amount of booking received was refunded to the respective complainants, service promise to construct a building and to hand over the flat for agreed consideration comes to an end. In the background of the circumstances that the Government declared the land as ‘Private Forest Land’ where no construction is permissible, the builder rightly assumed that the project could not be completed and therefore, revoking the booking, and refunding the booking amount to both the complainants, cannot be termed as an arbitrary or invalid act on the part of the builder. Therefore, the builder has discharged his obligation relating to the booking to refund the consideration and as such, no deficiency in service on the part of builder could be alleged. No malafide in respect of cancellation of booking is alleged against the builder. It is tried to be stated that one flat to another flat purchasers was given in possession for carrying out the furniture work, but that itself will not change the scenario.
If the complainants did not agree to the cancellation of the booking, they could certainly seek remedy for claiming damages for breach of alleged contract in a civil court. In the background of the circumstances narrated earlier, no service deficiency on the part of the builder could be assumed and it is, certainly, not a case of malpractice or practicing any unfair trade practice. Forum below did not address itself to all these issues and arrived at a wrong conclusion. The impugned orders cannot be supported. We hold accordingly and pass the following order :-
-: ORDER :-
1. Appeal No.987/2010 & 988/2010 are allowed. The impugned orders dated 01/07/2010 are quashed and set aside and in the result, consumer complaint Nos.35 & 36/2008 stand dismissed.
2. In the background of the given circumstances, both the parties to bear their own costs.
3. Copies of the order be furnished to the parties.
