Complainant present in person

Opponent through Lrd. Adv. Smt. Iyengar

Per : Mr. V. P. Utpat, President              Place   :  PUNE

                                                 // J U D G M E N T //

       02/06/2014                                                                 

          This complaint is filed by the consumer against the builder and developer for deficiency in service under section 12 of the Consumer Protection Act, 1986.   The brief facts are as follows.

1]       The complainant is a senior citizen, residing at Bhusari Colony, Kothrud, Pune - 38.   The opponent is dealing in the business of construction.  The complainant had booking two BHK flat no. 403 admeasuring 930 sq. ft. area in ‘A’ wing of “Kanchan Vastu” project, which is situated at Sr. No. 78 of Kothrud, Pune.  The office of the opponent is situated at Shivtirth Nagar, Paud Road, Pune.  The complainant has paid an amount of Rs. 3,00,000/- by issuing cheque on 24/09/2009 and obtained receipt for the said amount.  The agreed rate between the parties was Rs. 3,800/- per sq. ft. and the total value of the flat including registration and other charges was Rs.39,60,850/-.  At the time of booking, the complainant was informed that the possession of the flat will be delivered in the month of May 2009.  But that date was extended to Dec. 2009 and thereafter it was extended to June 2010.  The complainant had repeatedly asked the opponent about the execution of the agreement, but that was denied by the opponent on the ground that the permission for construction is delayed by Pune Municipal Corporation.  When he met the opponent on 19/6/2010, he came to know that his booking was cancelled unilaterally on the ground of non issuing of permission by Pune Municipal Corporation.   But the opponent did not give anything in writing to the complainant and orally offered flat no. 403 admeasuring 1085 sq. ft. area in ‘B’ wing in the same project @ of Rs.5000/- per sq. ft. plus other charges and the total value of the flat was Rs. 59,20,000/-.  That was not affordable to the complainant.  The opponent had given these details in writing.  The opponent had pressurized to cancel the booking of the flat and the cheque of Rs. 3 lacs was refunded to him.  On 8/7/2010, the opponent had also issued cheque of Rs. 30,000/- by way of interest.  It is the case of the complainant that the opponent has betrayed by canceling booking of the flat unilaterally, that amounts to deficiency in service.  The complainant has asked compensation of Rs. 4 lacs for financial loss, Rs. 50,000/- for physical and mental loss and Rs. 10,000/- for costs of the proceeding.

2]      The opponent has resisted the complaint by filing written version in which it has denied the contents of the complaint in toto.  It is the case of the opponent that the complainant himself had cancelled the booking, which was done in the name of his son Anant Utagikar.  The complainant has no locus standi to file this complaint, as there was no transaction between complainant and the opponent.  It is further contended that this Forum has no pecuniary jurisdiction to entertain the complaint, as the price of the flat is Rs.39,60,850/-.  It is further contended that the complainant had accepted the cheque of Rs. 3,30,000/- and after encashing the cheque, this complaint is filed only with the intention to extract the money.  The opponent has also contended that the complaint is liable to be dismissed with costs, as there is no deficiency in service.

3]      After scrutinizing the documentary evidence, which is produced before this Forum, hearing the arguments of both the counsels and considering pleadings, the following points arise for the determination of the Forum. The points, findings and the reasons thereon are as follows-

REASONS    :-

4]      The undisputed facts in the present proceeding are that the flat was booked by the complainant in the name of Mr. Anant Utagikar and an amount of Rs. 3,00,000/- was deposited by the complainant for the same.  It is the case of the opponent that the complainant has no locus standi to file the present complaint, as the entire transaction entered with Anant Utgikar.  But it reveals from the receipt, which is issued by the opponent that the receipt was issued n favour of the complainant and it bears his signature.  According to the opponent, the cheque was issued by the son of the complainant, but it is the case of the complainant that, that was issued from his account from Axis bank.  This fact is not falsified by the opponent by fling any record.  It appears from the record that the complainant had issued cheque and obtained receipt, hence the complainant has locus standi to file the present complaint.

5]      The second limb of the case of the opponent is that, this Forum has no pecuniary jurisdiction to entertain the complaint, as the value of the flat is Rs. 39,60,850/- i.e. beyond Rs. 20 lacs.  But it reveals from the prayer of the complaint that the complainant has asked compensation of Rs. 4,60,000/-, which is within the limits of pecuniary jurisdiction of this Forum.  Hence, it is the opinion of the Forum that, this Forum has jurisdiction to entertain the present complaint.

6]      As regards the deficiency, it is the case of the opponent that the complainant himself has cancelled the booking unilaterally and accepted an amount of Rs. 3,30,000/- by way of refund along with interest, hence there is no deficiency in service.  It is not in dispute that the complainant has received an amount of Rs. 3,00,000/- as well as interest amount of Rs. 30,000/-.  But it reveals from the record that the complainant has booked flat on 24/9/2009 and the refund was given on 8/7/2010.  The opponent has not established the reason for cancellation of booking of the flat by the complainant.  On the contrary, it appears from the reply notice, which was given by the opponent that the opponent had offered another flat to the complainant, if he will repay Rs. 3,30,000/-.  But the price of the flat was escalated.  It further reveals from the notice reply that the opponent has informed that there is no time limit for the possession of the flat.  Even, in the said reply, it is not referred the reason for cancellation of booking by the complainant.  In the ordinary course of nature, if a person is interested in purchasing the flat, he has no reason to cancel the booking.  In these circumstances, the only legitimate inference can be drawn that the opponent has cancelled the booking of the flat unilaterally after considering the escalation of the price of the flats and that amounts to deficiency in service.  It is the considered opinion of the Forum that the complainant is entitled for compensation for deficiency in service to the extent of Rs. 25,000/-, Rs.10,000/- for physical and mental harassment and an amount of Rs. 2,000/- towards costs of the proceeding.  In the result this Forum answer the points accordingly and pass the following order.

                                       O R D E R

1. The complaint is partly allowed.

1. It is hereby declared that the opponent has caused deficiency in service by unilaterally canceling booking of the flat.

1. The opponent is directed to pay total amount of Rs. 37,000/- (Rs. Thirty Seven Thousand only) to the complainant within six weeks from the

date of receipt of copy of this order.

4.       On failure to pay the abovementioned

amount within six weeks, it shall carry

interest @ of 9% p.a. from the date of

filing of the complaint till its realization.

5.       Copies of this order be furnished to

the parties free of cost.

6.       Parties  are directed to collect the sets, which were provided for Members within one month from the date of order, otherwise those will be destroyed. 

Place – Pune

Date- 02/06/2014