Per Shri D.N.Khamatkar, Hon'ble Member:

The complainant has filed a consumer complaint on 26/05/2009 which was numbered as complaint no.100/2009.  In this complaint the complainant has stated that he had filed a consumer complaint before District Consumer Disputes Redressal Forum, Pune which was subsequently numbered as 214/2007 on 27/08/2007.  Ld.Forum below heard the complaint and admittedly delivered judgement.  It was noticed by Forum that Forum does not have pecuniary jurisdiction and hence, the complainant had filed the complaint before this Commission.

Facts to the case in brief are that the complainant has booked a flat in “ Nirmal Shrushti”, a scheme floated by the opponent on survey no.1 Hissa no.11 and 23 at Karve Nagar, Pune.  He has booked a flat no.102 admeasuring 1353 sq.ft. @Rs.3,100/- per sq.ft.  He has paid booking amount of Rs.6 Lakhs to Mr.Sachin Amrutkar- Director of the opponent company on 23/09/2006 and the opponent has issued a stamp receipt in realization to the amount which is at page 19-21 of the compilation. 

On 27/04/2007 the opponent has written a letter to the complainant stating therein that the complainant had booked a flat in their scheme called “Nirmal Shrushti”.  However, in last 6-7 months because of technical problems the scheme could not be launched.  He further stated that he has informed to the complainant and complainant agreed to take back the amount.  On his request he has deposited an amount of Rs.6 Lakhs in Bharat Sahakari Bank Ltd., Pune in account no.42518 on 27/04/2007 and as per the complainant’s request he has calculated the interest on the amount and paid interest in his bank account.  He further stated that on both the amounts TDS amount of Rs.2,708/- has been deducted and credited in the bank and requested to return the original payment receipts.  The letter is at page 22 of the compilation.

After the receipt of this letter, the complainant has issued a notice to the opponent dated 08/05/2007, 24/05/2007 and 16/07/2007 which are at page 23 to 26 and 28 respectively of the case papers.  Through the notices the complainant has challenged unilateral cancellation of the booking of the flat.  The complainant has also contacted Akhil Bhartiya Grahak Panchayat Pune and Akhil Bhartiya Grahak Panchayat Pune has written to the opponent informing that action of cancellation of booking amounts to unfair trade practice.  Said letter is at page 31.  Hence, the complainant has filed a consumer complaint with the following prayers:

“      1.     Possession of flat no.102 admeasuring 1353

sq.ft. @ Rs.3,100/- per sq.ft. with Rs.6 Lakhs and remaing amount within 12 months at the time of handing over the possession.

2.           Mental harassment to Rs.4 Lakhs, cost of litigation Rs.50,000/- and any such order as the Commission may deem fit.

On 19/11/2009 both the parties stated that their reply is on record so also affidavit by way of evidence are also on record, documents  in support of evidence also been on record and therefore, submitted that matter may be kept for final hearing and accordingly filed a pursis. 

Opponent filed a written version which is at page no.42 of the compilation.  Opponent in his written version stated that contract between the complainant and opponent was not a concluded contract and hence the present complaint does not fall within the provisions of Consumer Protection Act, 1986.  It is the contention of the opponent that the booking is cancelled and on the request of the complainant himself, he has returned back the entire amount along with interest.  He has further submitted that he has credited the booking amount with interest in the bank account of the complainant and hence, there seems no contract or agreement for sale and purchase as alleged by the complainant.  He further submitted that at the time of booking, the area of the flat was not fixed as the plan was not sanctioned by the planning authority.  The contention regarding the particulars of the flat does not survive in view of voluntary cancellation of the booking of the flat by the complainant. The opponent was not able to execute the agreement in favour of the complainant because the building plan was not sanctioned by the authorities of Pune Municipal Corporation till 27/04/2007.  The letter dated 27/04/2007 is a confirmation of cancellation of the booking of the flat by the complainant.  The complainant has no right to issue notice to the opponent in view of his voluntary cancellation of the booking.  The booking receipts have no evidencery 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 subsists after 27/04/2007 between the complainant and 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 a flat has came to an end and there was no contract in force on the date of filing of complaint by the complainant and therefore, opponent prayed that complaint may please be dismissed. 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  booked by the complainant amounts

        to unfair trade practice?                                       Yes

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.102 admeasuring 1353 sq.ft. was  booked @Rs.3,100/- per.s.q.ft.  The complainant paid RS.6 Lakhs to Mr.Sachin Amrutkar – Director of opponent company on 23/09/2006 and opponent has given a stamp receipt  of the payment which is at page 19-21 of the compilation.  At page no.17 of the compilation there is a tentative plan of the flat at page no.18 there are particulars regarding area per sq.ft. rate, MSEB charges, parking charges and total amount to be paid to the opponent.  At page no.22 there is a letter dated 27/04/2007 written by the opponent to the complainant.

Careful scrutiny of the letter reveals that it gives location of the scheme and opponent has acknowledged that complainant has booked the flat.  However, opponent has stated that in the execution of project because of technical problems a period of 6-7 months have elapsed and in the near future it is not possible to launch the project and he has explained difficulties to the complainant and the complainant requested for returning the booking amount.  On the request of the complainant the opponent has returned Rs.6 Lakhs with interest of Rs.32,292/- and deposited the same in the account of complainant in Bharat Sahakari Bank Ltd. Pune on 27/04/2007.  He further written as he has returned booking amount with interest 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 notices to the opponent which are at page page 23-26, 28 dated 08/05/2007, 24/05/2007 and 16/07/2007 respectively.  The opponent replied to the notice by letter dated 19/05/2007.  The reply is simply denial of the contents of the notice.  The complainant has produced a copy of advertisement which the opponent has published in “Sakal” newspapers which is at page 29 of the case papers.  Perusal of the same shows that the opponent had given this advertisement for booking of flat in the same scheme.

If we read all the aforesaid evidences, it is crystal clear that the opponent has cancelled the booking of flat unilaterally and returned the amount.  The contention that the opponent is that he has explained to the complainant that there are technical problems and he is not aware when he will be able to commence the work of the building, cannot be believed in view of the advertisement dated 17/05/2007 of availability of flat in the same scheme.  In fact, it is legal responsibility of the opponent to execute the agreement.  However, he has not executed the agreement.  On the contrary the opponent has unilaterally cancelled booking of the complainant.  The contention of the booking was cancelled on the request of the complainant cannot be supported by any evidence.  On the contrary after receipt of letter dated 27/04/2007 from the opponent the complainant has issued  a notice dated 08/05/2007 24/05/2007, 16/07/2007 challenging unilateral cancellation of the booking the conduct of the complainant after receiving the notice proves beyond doubt that cancellation of booking by the opponent is unilateral.  Further he has approached to the Akhil Bhartiya Grahak Panchayat, Pune which in  turn has written a letter to the opponent informing that the action of cancellation of booking amounts to unfair trade practice.

        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 similar case compilation (C.no. 86/2009) 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.