AAR PEE APARTMENTS PVT. LTD. vs Shakuntala Devi

THIS appeal has been filed by M/s. Aar Pee Apartments Pvt. Ltd., against the order of District Forum dated 28.10.91 by which a decree for Rs. 8,900/- with interest @ 15% w.e.f. 28.4.89 till date of payment, has been passed against them.

BRIEFLY the facts are that the appellant is a builder. The complainant booked a shop with the appellant in a complex called "Jaina Tower III" proposed to be built by the appellant for a consideration of Rs. 59,334/- and paid an amount of Rs. 8,900/- towards part payment of the price. It is alleged that the appellant did not get the plan sanctioned and therefore, the question of constructing the building did not arise and thus, she became suspicious about their creditability. They. it is aleged, even could not give satisfactory explanation of delay in starting the construction. Cosequently she filed a complaint for the recovery of Rs. 8,900/- with interest. The complaint was contested by the appellant. It was inter-alia pleaded by them that the Forum had no jurisdiction to entertain the complaint and that they were not liable to refund the amount in terms of the agreement.

The learned District Forum repelled both the pleas of the appellant and passed a decree in favour of the complainant as mentioned above. The builder has come up in appeal against the order of the District Forum to the Commission.

THE first contention of Mr. Mehta, learned Counsel for the appellant is that the Forum under the Consumer Protection Act has no jurisdiction to entertain the complaint against the builder. We regret our inability to accept the contention. It is not necessary to dilate upon this point, as the matter has been decided by the National Commission in U.P. Avas Evam Vikas Parishad v. Garima Shukla, I (1991) CPJ 1 (NC). In that case it was held that the Board was engaged in rendering services for consideration to the public and, therefore, those who were allotted houses by the Board fell within the definition of the word ''Consumer'' as given in Section 2(1)(d)(ii) of the Act. THE present case is fully covered by the said observations. Consequently we reject the contention of the learned Counsel. The second submission of Mr. Mehta is that according to the agreement the amount of Rs. 8,900/- deposited by the respondent, was earnest money. The complainant failed to pay the balance of the price in terms of the agreement and therefore, the appellant was entitled to forefiet the same.

WE have considered this argument, but do not find substance in it as well. It is common knowledge that for constructing any building in a Municipal areas, the plan of the building is required to be get sanctioned from the Municipal Authorities. The appellant till date has hot produced any such sanction plan. Therefore, it cannot be said that the respondent committed breach of the agreement entered into between the parties. The complainant in our view is entitled to refund of the amount as ordered by the learned District Forum. For the aforesaid reasons we do not find any merit in the appeal and dismiss the same with cost. Cost Rs. 500/- . Appeal dismissed.