R.K. AGRAWAL, J., PRESIDENT   

1.       These two Appeals have been filed by M/s Rockline Construction Co. (hereinafter referred to as the Builder/Developer) against a joint Order dated 11.10.2012, passed by the Maharashtra State Consumer Disputes Redressal Commission at Mumbai (hereinafter referred to as the State Commission) in Consumer Complaints No. CC/11/202 and CC/11/203, whereby the State Commission has partly allowed the Complaints and directed the Builder/Developer to give vacant and peaceful possession of Flats Nos. 1407 and 1408 (admeasuring 769 sq.ft. carpet area of each Flat), situated in C-Wing of the Building known as Royal Heights, Lokhandwala Off Link Road, Near Milat Nagar, Andheri (West), Mumbai-400058, on Complainant tendering remaining balance amount of consideration in respect of both the Flats.  The possession of the Flats is directed to be given after obtaining Completion Certificate and Occupation Certificate from the Local Authority.  Further, the Builder/Developer has been directed to execute the Agreement of Sale in respect of both the Flats in favour of the Complainant within one month from the date of the Order and pay interest @ 6% per annum on the amount of Rs.13,00,000/- from the date of the payment till handing over possession of both the Flats.  The Builder/Developer has also been directed to pay to the Complainant a sum of Rs.1.00 Lakh as compensation in each Complaint for mental harassment suffered by the Complainant and further sum of Rs.25,000/- in each Complaint towards litigation costs.    

2.       The facts, in brief, are that the Complainant, who was in dire need of having a larger residential accommodation in view of increase in the size of family, booked two Flats No. 1407 and 1408, having a carpet area of 769 sq.ft., in the aforesaid Project of the Builder/Developer on 28.02.2006.  While the total sale consideration of each Flat was Rs.42,00,000/-, the Complainant paid an amount of Rs.13,00,000/-, being 15% of the sale consideration in respect of both the Flats, as part-consideration and the balance amount was to be paid as per progress of the Project.  On 08.06.2006, the Builder/Developer issued the Allotment Letters in favour of the Complainant, confirming allotment of the said two Flats.  In the second week of February, 2008, the Complainant received a letter dated 07.02.2008 from the Builder/Developer, stating that the work was stopped because of a dispute between M/s Poonam Builders and Others and due to legal problems it was not in a position to continue with the construction work and, therefore, gave an option to the Complainant either to collect the amount of part-consideration paid with statutory interest or to continue with the Project, in which case the Builder/Developer shall not be responsible to pay an interest on the amount paid towards part-consideration.  The Complainant decided to continue with the Project and vide his letter dated 29.02.2008 requested the Builder/Developer to take note of his changed address.  It appears that there was no progress in the construction work and the Complainant vide his letter dated 18.02.2011, followed by letter dated 23.02.2011, took up the matter with the Builder/Developer regarding non-completion of the Project.  In reply, the Builder/Developer issued a letter dated 23.03.2011 through its Advocate, stating that no legal right of any nature had come into existence and the Allotment Letter was an inchoate arrangement and made an attempt to back out from the Agreement.  In the said factual matrix, alleging deficiency in service and unfair trade practice on the part of the Builder/Developer, the afore-noted Complaints were filed by the Complainant before the State Commission, praying for the reliefs stated therein.  

3.       Upon notice by the State Commission, the Builder/Developer contested the Complaints by filing its Written Version.  It was contended on its behalf that no service was being provided by it to the Complainant and the Complaints were barred by limitation because the booking of the Complainant had been cancelled on 07.02.2008 and the Complaints had been filed by him in July, 2011.  The Complainant had not made further payments and was silent after giving booking amount.  They had cancelled the booking of the Complainant on 07.02.2008 itself and asked him to take back the amount paid but he did not take back the amount and filed false and frivolous Complaints to extract money.

4.       On appreciation of the evidence adduced and appraisal of the documents filed by the Parties before it, the State Commission partly allowed the Complaints and issued the aforesaid directions.  Hence, the present Appeals by the Builder/Developer.  

5.       Learned Counsel for the Builder/Developer stated that the State Commission erred in not appreciating that it did not have the jurisdiction as the Complaints filed by the Complainant were Civil Suits, disguised as Consumer Complaints, seeking specific performance of alleged Agreement for Sale dated 08.06.2006, which could be dealt only by the Civil Court and is nothing but a device to obtain specific performance under the Specific Relief Act, 1963 from the State Commission without undergoing trial and paying the requisite court fee.

5.1     The State Commission ought to have taken cognizance of the issues raised by the Builder/Developer whether the provisional and tentative booking stood cancelled or it creates any right, title and/or interest in favour of the Complainant whereas it was an inchoate arrangement between the Parties.   

5.2     The State Commission failed to appreciate that construction of building and execution of conveyance, if any, claimed by the Complainant, does not amount to deficiency in service as defined under Section 2(1)(o) of the Consumer Protection Act, 1986.  The insertion of ‘housing construction’ in the definition of service impliedly suggests that there has to be some dispute relating to some defect or deficiency in construction of a house and cannot be used to seek specific performance of an Agreement.  The Complaints are, therefore, not maintainable.

5.3     The Complainant in the Complaints had prayed the State Commission for a direction to the Builder/Developer to execute proper Agreement of Sale pertaining to the Flats in his favour or his nominee, which shows that the Complainant was not a “consumer” within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 and had availed their services to make profit out of the said transaction.  Further, the Complainant was only 26 years old and had booked two Flats without availing any housing loan facility, which lends credence to the contention of the Builder/Developer that the Complainant is an “investor” and, therefore, outside the purview of Consumer Protection Act, 1986 and Complaints were not maintainable. The State Commission failed to take cognizance of the said facts and did not give any specific finding in this regard.

5.4     As per the allotment letters dated 08.06.2006, the Complainant was to pay 15% amount on receiving of the allotment letters.  It is not the case of the Complainant that he had paid the said amount accordingly.  On the contrary, a feeble attempt was made by the Complainant by alleging that the said 15% consideration in respect of both the Flats was paid by him by cheque, amounting to Rs.13,00,000/-, dated 28.02.2006, pursuant to negotiations taken place with the representative of the Builder/Developer in the last week of February, 2006.  The Complainant has not explained who was said Representative of the Builder/Developer and why had he made a payment of Rs.13,00,000/- whereas 15% consideration comes to Rs.12,60,000/- and why there was no confirmation about the same in the allotment letters dated 08.06.2006.  The said aspect of the matter has not been looked into by the State Commission and, therefore, the Impugned Order deserves to be set aside.

5.5     The State Commission did not appreciate the contention raised by the Builder/Developer that there was 3 years’ inordinate delay in filing the Complaints, inasmuch as vide letter dated 07.02.2008 the Complainant was requested to take back the money with interest but he did not do so and approached the State Commission only on 10.07.2011 after the market value of the Flats had increased manifold.  As such cause of action arose to the Complainant on 07.02.2008, when the Builder/Developer requested him to take back the money with interest.  Despite objection being taken in this behalf in the Written Version, no application, seeking condonation of delay, had been filed by the Complainant and, therefore, the State Commission was not justified in holding that the letter dated 23.03.2011, written by the Advocate of the Builder/Developer to the Complainant, asking him to collect the money back, gave cause of action and the Complaints were within limitation.  Both the letters dated 07.02.2008 and 23.03.2011 were same as by both the letters the Builder/Developer offered to return the money to the Complainant.

5.6     The State Commission also did not consider the fact that though the Complainant resides in very close proximity to the site under construction, yet he did not make any inquiries to know about the progress of the Project between 2006 and 2011, which shows that he was waiting for the most appropriate opportunity. 

5.7     The State Commission failed to appreciate that the Complainant vide his letter dated 29.02.2008, which was written in reply to the Builder/Developer’s letter dated  07.02.2008, never expressed his intention to continue with the Project. 

5.8     The State Commission erred in not appreciating that as per the norms prevailing in Mumbai, if a Project cannot be continued for a long duration, then Developers refund the money back to the investors.  In the present case also, the Project could not see the light of the day and the Builder/Developer itself agreed to pay the money back to the Complainant with statutory interest and, therefore, the Order passed by the State Commission deserves to be set aside.

6.       On the other hand, learned Counsel for the Complainant stated that there was deficiency in service and unfair trade practice on the part of the Builder/Developer and the State Commission has passed a well-reasoned Order, which is based on material available before it.  It needs no interference and the Appeals preferred by the Builder/Developer deserve to be dismissed.

7.       We have heard learned Counsel for the Parties and gone through the Order passed by the State Commission, the grounds taken in the Memo of Appeals and the documents filed by them.     

8.       The contentions of the Builder/Developer to the effect that the State Commission did not have the jurisdiction as the Consumer Complaints filed by the Complainants were Civil Suits and could be dealt with by the Civil Court; whether the provisional and tentative booking stood cancelled or it creates any right or interest in favour of the Complainant whereas it was an inchoate arrangement between the Parties; there was no deficiency in service as defined under Section 2(1)(o) of the Consumer Protection Act, 1986 because there was no defect or deficiency in construction of a house; the Complainant in the Complaints had sought execution of proper Agreement for Sale in respect of the Flats in question in his favour or his nominee, which shows that he was not a “consumer" within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 and had availed their services to make profit; the Complainant never expressed his intention to continue with the Project; and as per the practice prevalent in Mumbai to return the money paid by the consumer in case the Project cannot be continued for a long duration, which has been followed in the present case as the Project could not see the light of the day, have all been considered by us in First Appeal No. 26 of 2013 (M/s Rockline Construction Co. Vs. Sheikh Mohammed Jamil & Ors.), which is a similar matter relating to the same Project of the same Builder/Developer.  In the said Case, two Complainants, husband and wife, by filing a Complaint had approached the State Commission because the Builder/Developer was not ready to handover possession of the Flat booked by them in the Project despite receiving a part-consideration and lapse of a considerable time over and above the agreed period and the State Commission, on consideration of the evidence adduced and documents filed by the Parties, had allowed the Complaint with certain directions.  By an Order of date passed in First Appeal No. 26 of 2013, we have negated the aforesaid contentions taken by the Builder/Developer.  Inter alia, the same contentions have also been taken in the present case and, therefore, for the reasons stated in the Order passed by us in First Appeal No. 26 of 2013, we don’t think it appropriate to reiterate the same here.  The said reasons will be applicable in the present case also.  

9.       Further, we are not agreeable with the plea taken by the learned Counsel for the Builder/Developer that the Complainant was aged 26 years and had booked two Flats without availing any housing loan facility, which shows that he was an investor and the Consumer Complaints filed by him were not maintainable. In our considered opinion, it cannot be assumed that in order to maintain a Consumer Complaint, a person or consumer has to necessarily take monetary assistance from a financial institution.  He may have his own money, which may be used by him while booking/purchasing immovable property, and, therefore, it cannot be said that in such a situation a Complaint filed by the said person will be outside the scope and purview of the Consumer Protection Act, 1986.

10.     Coming to the submission of the Builder/Developer that in terms of the Allotment letters dated 08.06.2006 the Complainant was required to pay 15% of the sale consideration in respect of both the Flats in question and it is not the case of the Complainant that he had paid the said amount accordingly, we find that vide its letter dated 07.02.2008 the Builder/Developer had requested the Complainant to take back the part-consideration paid with statutory interest.  In such a situation, we have no reason to differ with the submission of the Complainant that the sum of Rs.13,00,000/- deposited by him with the Builder/Developer through cheque dated 28.02.2006 was towards 15% part-consideration, which had been deposited pursuant to the booking of the Flats on 28.02.2006.  In any case, the receipt of the said amount has not been denied by the Builder/Developer and, if there is no confirmation about the same in the allotment letters, the Complainant cannot be blamed therefor.  It is also immaterial who was the Representative with whom the Complainant had negotiated and thereafter paid the aforesaid amount of Rs.13,00,000/- and why the said amount was deposited whereas he was required to deposit a sum of Rs.12,60,000/- as 15% part-consideration.   

11.     For appreciating the submission of the Builder/Developer that there was 3 years’ inordinate delay in filing the Complaints and the State Commission had wrongly held that the same were within limitation, it is necessary to have a look on the letter dated 07.02.2008, written by the Builder/Developer to the Complainant in respect of both the Flats in question, i.e. Flats No. 1407 and 1408.  The said letter reads as under:

“This has reference with your provisional booking of the above mentioned flat.

As you are aware that the work of the building as mentioned above is stopped for a long time on account of disputes between M/s Poonam Builders and Others.

M/s Poonam Builders are facing legal disputes and are unable to procure the relevant permission, as a result of which, we are facing inordinate delay to commence the work of our project.

As we cannot commence the construction of the building in near future, and also we are not in a position to estimate when and whether the project will commence.

We therefore under the circumstances request you to come and collect the amounts paid by you together with statutory interest after seeking prior appointment.  In the event if you decide to continue with us we shall not be responsible to pay any interest on such amounts, nor shall we be liable and also we shall not entertain any claims or demands made by you on such behalf.”

11.1   A perusal of the said letter clearly shows that an option had been given to the Complainant either to take back the amount paid by him together with statutory interest or to continue with the Project in question, in which case there shall be no liability to pay any interest.  As against this letter, there is nothing on record to show that the Complainant had withdrawn from the Project or he was not willing to continue with the Project.  Insofar as the letter dated 29.02.2008 is concerned, by the said letter the Complainant had simply requested the Builder/Developer to take a note of change in his address.  Thereafter, it seems that there was no interaction between the Parties for about three years.  After the said period, the Complainant vide his letter dated 18.02.2011 requested the Builder/Developer to expedite the Project work and give possession of both the Flats in question.  In response to the said letter, the Builder/Developer vide letter dated 23.03.2011, which had been written by its Advocate, stated the Complainant that “the work in respect of the building N.G. Heights resumed long time back and by your conduct the Provisional/Tentative booking having been determined, now at this belated stage you cannot stake any claim in respect of the said Flat” and requested him to take back the money with interest.  In our considered opinion, the State Commission has rightly observed that it was the letter dated 23.03.2011, which gave cause of action to the Complainant, and, therefore, the Complaints were within limitation. 

12.     Once it is held that there was no delay in filing the Complaints, it is not necessary for us to dwell upon the submission of the Builder/Developer that the Complainant was residing in very close proximity to the site under construction yet he did not make any inquiries about the progress of the Project and was waiting for an appropriate opportunity.  However, it may be stated that even if the stated submission is accepted, it cannot be said that the Complainant was debarred from approaching the Consumer Fora.  In the facts and circumstances of the case, the Complainant had a right to approach the Consumer Fora, which he has exercised and there is nothing wrong in it.

13.     In view of the aforesaid discussion, we are of the considered opinion that there is deficiency in service on the part of the Builder/Developer in not handing over possession of two Flats booked by the Complainant and not executing the sale deed/conveyance deed in his favour.  The State Commission is justified in granting relief to the Complainant and issuing the aforesaid directions.  However, in our considered opinion, as the State Commission has already directed the Builder/Developer to pay interest @ 6% per annum on the amount of Rs.13,00,000/- deposited by the Complainant, there was no justification for it to further award a sum of Rs.1,00,000/- towards compensation in each Complaint.  The said direction stands deleted.  Rest of the directions remain unchanged.

14.     In the result, both the Appeals stand partly allowed in the above terms.