FRANCISCO ANTONIO JOAO DE PHILOMENO FERNANDES vs HARESH KHAUNTE

THIS complaint is filed by the complainant against the opposite parties (hereinafter we should read as opposite party No. 1). It is the case of the complainant that, sometime in March, 1988, the opposite party No. 1 advertised in the local papers about the construction of a building at Ponda and invited the public to book shops, offices, premises therein. The complainant then addressed a letter, dated 2.4.1988, seeking for details with regard to the booking of two shops in the said construction. The price of shop LG 10 was Rs. 9,000/- per square metre and shop No. LG 11 Rs. 12,000/- per square metre. Accordingly booking application forms were made available by opposite party No. 1 for booking purpose of two shops, namely, LG-11 for the price of Rs. 2,21,000/- and LG - 10 for Rs. 68,400/-. Alongwith these forms duly filled up and signed the complainant issued two cheques in favour of opposite party No. 1 totalling Rs. 10,000/- towards the bookings. One of these cheques was bounced and it was returned by the Bank to the opposite party No. 1 who wrote to the complainant that the cheque of Rs. 5,000/- towards the booking of shop No. LG-10 had been returned by the Banker and requested him to remit the due instalment at the earliest, failing which he would presume that the complainant was not interested in that shop. Therefore, the complainant wrote back to the opposite party by a registered letter which he refused to accept. On 15.11.1993, the complainant received from the opposite party No. 1 a letter alongwith a cheque for Rs. 5,000/- which he has encashed under protest. It is further the case of the complainant that the opposite party No. 1, after lapse of almost 6 years, returned to him the booking amount of shop No. 1 and refused its allotment by negotiating with the Goa State Co-Op. Bank, Ponda Branch, the allotment of premises for them including the shop Nos. LG-10 and 11. According to the complainant, the price of the shop if allotted, in Ponda, was presently around Rs. 40,000/- per square metre and, therefore, he was entitled for compensation in terms of the difference of the prices between the price of the shop floor area allotted to him in the year 1988 and the present prevailing price. Besides the complainant would have earned a minimum net income of about 1 lakh per month for at least 3 years and, therefore, the opposite party No. 1 was bound to compensate him in the sum of Rs. 3,00,000/- for business loss and an additional amount of Rs. 7,00,000/- in all had to be paid for him to acquire any other business shop premises admeasuring 24.80 sq. mtrs. at Ponda.

THE opposite party No. 1 resisted the complaint by raising the preliminary objection that the complainant was not a consumer within the meaning of Section 2(d) of the Consumer Protection Act, 1986 (hereinafter called the Act). It was stated that, as per the averments in the complaint, the complainant had intended to purchase the shops for commercial purpose and, therefore, he cannot be the subject-matter of a dispute before the Consumer Forum. THE other objection was that the complaint was not verified nor supported by an affidavit being, thus, liable to be dismissed. Besides the complaint was also bad for non-joinder of the other partner of M/s. Padmashree Realtors. On merit it was stated that the booking forms printed by the opposite party No. 1, consequent upon the advertisement published in the news paper about the Project, do not constitute any agreement between the parties. THE opposite party No. 1 denied that he had offered shops to the complainant and it was the complainant who came with an offer to purchase shop Nos. LG-10 and 11 saying that he was interested in purchasing the shops. THErefore, the opposite party No. 1 handed over to him two booking forms and explained to him the conditions which he read before he agreed to deposit the booking amounts. In the booking forms, it was made clear that the payment done would not entitle him to book the premises or that the same could be allotted to him as a matter of right. It was also made clear that in case the allotment could not be made in his favour, the amount deposited would be returned to him. As such the booking forms did not contain any material for the sale of the shops to the complainant, it was further stated that the price of the shop No. LG-10 was Rs. 71,000/- and not Rs. 68,400/- as alleged by the complainant. In respect of the booking amounts, one of the cheques of Rs. 5,000/- was returned by the Banker and inspite of the opposite party No. 1 having written to the complainant to make the payment of the instalment towards the sale of shop No. LG-10, he never paid any amount regarding the said shop. THEreupon, sometime in June, 1988, after he accepted the complainant''s booking amounts, a suit was filed against the opposite party No. 1 by one Co-operative Housing Society Ltd. wherein an injunction was granted by the Court stopping further construction and development of the plot. This injunction was vacated only on 28.1.1992 and during the pendency of the suit the opposite party No. 1 kept renewing the construction licence. When the suit was dismissed the opposite party No. 1 had to approach again the P.D.A. for necessary approval. However by that time F.A.R. as well as the coverage had been reduced as per the P.D.A. Rules and Regulations which, in turn, resulted in lesser area for construction purpose. THErefore, the opposite party had to revise his plans accordingly and the same was submitted to the P.D.A. and approved only on 18.5.1993, after which the licence of Ponda Municipal Council was granted on 11.11.1993. Due to all these factors the opposite party No. 1 was unable to allot shops to any person prior to 18.5.1993. After getting the approval from the P.D.A. the opposite party No. 1 entered into an agreement with the Goa State Co-operative Bank Ltd. to sell an area in the building and, therefore, he was unable to accommodate the complainant. Accordingly the amount of the complainant was returned by cheque dated 15.11.1993. THE complainant never demanded prior to that the fund of the booking amount from the opposite party No. 1 and thus impliedly chose to wait for the decision of the Builder regarding allotment of the shops. THE refusal to allot the shops was on account of alteration of plans and due to the pendency of the suit, being thus entirely beyond the control of the opposite party No. 1. He, therefore, denied being liable to any compensation to the complainant on account of this refusal. Further the opposite party No. 1 also challenged the very basis of the amount of the compensation claimed. On the day of the hearing, the complainant in person and Mr. Khandeparkar, learned Counsel for the opposite party, have argued at length.

We have gone through the records and considered the oral submissions of the parties. On a perusal of the evidence made available by the complainant, either affidavitory or from the documents relied upon by him, we are of the view that the grievances of the complainant regarding the opposite party''s refusal to allot to him shop No. 11 are entirely sound and well-conceived.

IT is not in dispute that consequent upon the advertisement put up by the opposite party in the newspapers in respect of the construction of a building centrally located at Ponda and consisting of residential premises, shops, offices etc., the complainant approached him for the purpose of booking two shops. At this stage, we are concerned only with shop No. 11, whereof enough evidence is very much available on record. The Booking Form supplied by the opposite party with reference to shop No. 11 contains the essential details of that shop, duly filled in by or on behalf of the said opposite party, wherein not only the name, address and professional occupation of the complainant but even the price of the booked shop has been recorded for the aforesaid purpose. Similarly the amount of Rs. 5,000/- which was paid by the complainant by cheque drawn on State Bank of India, dated 8.4.1988, in favour of opposite party towards the booking of abovementioned shop has been also clearly noted down. The Booking Form itself is explicit to indicate that it was exclusively meant to book shop No. 11 properly identified and the cheque attached to the Form was acknowledged by opposite party who encashed it, which fact confirms that the same was issued as payment of the booking instalment of the suit premises. This being the position it is impermissible on the part of the opposite party to plead now that there was no valid and concluded contract between him and the complainant and that, it at all there had been any agreement between them, the same stands terminated. We are really at loss to appreciate this stand taken by the opposite party and the very inconsistency of his pleadings that he had printed the Form for booking purposes but on certain terms and conditions so as to enable him to know whether flats, shops, offices, etc., could be sold, whether there was demand for the same and, therefore, the Forms did not constitute any agreement between the parties, just amounting to a mere booking formality. We, therefore, regret that the opposite party, by placing heavy reliance on the last portion of the same Form, sought to unceremoniously discard his commitments towards the complainant by arrogating for him a full discretionary option, if we cannot call it an arbitrary power, to freely refuse the allotment of the shop booked to the complainant, as per his whims and fancies, after having encashed the booking amount and instead to allot it to a different person of his choice. Indeed if we cannot but qualify such behaviour of the opposite party as an impermissible exercise of arbitrariness. We find it difficult to accept as supportive and valid in the eyes of law this injurious type of a contract of adhesion and the lionine clause it contains. We accordingly refuse to entertain the thought that, legality apart, even justice and equity are likely to condone a situation wherein a party in a contract places himself in a position of power in complete detriment of the other side, by simply denying to him the minimum guarantees of its logic performance in clear violation of principles of fairness and transparency. The contract in question is a typical example of this kind of attempt to merely playing with words indulged by the opposite party. Similarly the reason advanced that the Booking Form does not make any reference to the area or to any plan and also does not contain any express promise to sell the shop to the complainant seems to us totally unacceptable and misconceived. If it is so, what would be the purpose of the opposite party in collecting money from the complainant, ostensibly towards booking instalment, and retaining it for so many years without even making an offer to refund it to the said complainant, so much so, the execution of the Project had been delayed consequent upon the Court''s litigation ? We have noted the submission of the learned Counsel for the opposite party that the booking amount was not returned to the complainant earlier because he did not ask for it, inspite of his being in the knowledge of such situation. In our view this fact by itself suggests that the complainant chose not to seek for its refund and instead consented the money to be retained by the opposite party on account of a legitimate expectation, fully protected by law and which is to be held as good as a valid promise, that as soon as the litigation ended the booked shop would be allotted to him in due course. But it seems that, to the Complainant''s misfortune, the ground reality has proved to be otherwise. According to the opposite party, as soon as the injunction was vacated, the plan had to be revised due to the reduction of the F.R.A. in order to secure its approval by the Competent Authorities and in this reshapping it was not possible to accommodate the complainant''s shop in the fresh scheme. Instead the record shows that the new plan was specifically revised in order to make room to the Goa State Co.-Op. Bank''s requirements and it is not difficult to anticipate the real reasons behind it. As such it appears that, in the space allotted to the Bank, the area corresponding to the shop which had been booked by the complainant was also included. When we inquired from the learned Counsel for the opposite party whether the Bank had also entered earlier into a similar booking arrangement with the opposite party, prior or atleast contemporary to the booking made by complainant, he was fair enough to concede that it was after the disposal of the suit which clearly indicates to be a subsequent booking. In the circumstances we are justified in drawing a legitimate conclusion that the illegal denial of allotment of the suit shop to the complainant represents an injudicious exercise of arbitrary power, which we feel necessary to strongly deprecate. We are, therefore, positive in holding that the informal agreement dated 18.4.1993 executed by the complainant with the opposite party stands sanctified consequent upon the acceptance of the booking amount by the said opposite party and should be read as a valid contract which has created in favour of the complainant a legal right to secure the allotment of the shop booked by him and partly paid through the initial instalment. We further hold that such allotment could not be denied by the opposite party unless it would not be possible for reasons absolutely beyond his control or due to force majeure, which certainly is not the case, since the facts pleaded by the opposite party do not figure any situation which can justify his refusal to oblige the legitimate claim of the complainant. In this respect the opposite party was not in a position to fairly satisfy us that there was any factual or legal impossibility which has prevented him from complying with his commitments towards the complainant. We, therefore, decline to entertain the opposite party''s additional plea that the complainant is not a consumer, within the definition of Sub-clause 1(i) of Clause (d) of Section 2 of the C.P.A., 1986, because since there was no formal and valid agreement of sale there was also no obligation of any service to be rendered to the complainant and, as such, his refusal or inability to accommodate him in the revised Project was not amounting to a deficiency in service. We instead hold that the complainant, irrespective of the absence of a formal agreement of sale, is to be deemed as a Constructive Consumer and very much entitled to be duly compensated due to violation of his legitimate right to see to it that his Booking Application had been fairly considered and properly adjudicated. At this stage we must advert that all these considerations are relevant only so far shop No. 11 is concerned since, with regard to shop No. 10, apart from the fact that the complainant was not able to produce any documentary evidence, of the type of the Booking Form relied in respect of shop No. 11, duly filled in and acknowledged by opposite party, the record shows, on the complainant''s own admission, that when the cheque of payment of the booking instalment of shop No. 10 was bounced and vide Post Card, dated 26.5.1988, the opposite party demanded from him the remittance of the defaulted instalment till the end of the month, failing which the opposite party would presume that the complainant was not interested in the shop and he would be free to dispose it to any other party, admittedly the complainant did not succeed in complying with this demand for the reason that his letter in reply could not be delivered to the opposite party due to insufficient address and was thus returned to the sender. Being so, it is manifest that the complainant''s contention that the opposite party refused to accept his letter which was returned to him has no factual basis and is bound to be discarded. IT thus follows that consequent upon his failure to make the payment of the booking amount the complainant is not entitled to claim any rights which could be derived for him only from a valid booking in respect of shop No. 10. We must observe, however, that the very writing of the Post Card, dated 26.5.1988, by opposite party comes as an additional support to substantiate our findings that the Booking Form which, irrespective of its vague and inconsequential wording, the opposite party had tried to be little as an afterthought throughout this litigation has been regarded by him as a valid agreement incorporating promise and a sort of commitment which he was required to honour and comply. Otherwise it cannot be explained as to how the opposite party, while referring therein to the bounced cheque, chose to call it as a "Booking Instalment" and demanded an early fresh remittance, within a stipulated time, in order to secure to the complainant the reservation of shop No. 10, failing which he would be free to dispose it in favour of any third party. In such circumstances, it is really difficult to appreciate as to how the opposite party could shift his stand before this Commission by claiming that, beyond a vague promise, there was no confirmed booking in respect of shop No. 11. With regard to other objection raised by opposite party that the complaint was bad for non-joinder of the other partner of M/s. Padmashri Realtors and, therefore, liable to be dismissed, apart from the fact that there is nothing on record to suggest about actual existence of another partner of the Firm as well as of its identification, we must observe that Section 13 of the Consumer Protection Act, 1986 (hereinafter called the Act) makes express reference to the specific provisions of the C.P.C. which are applicable to complaints filed under this Act. Section 30 has not been made applicable to such proceedings. It is thus clear that the Legislature, in its wisdom, chose to exclude the provisions of Section 30 in the proceedings under the Act. Consequently the opposite party cannot claim any advantage from the invocation of Section 30 which, in our view, is only a procedural provision and not a substantive one. This being the position, it is obvious that a merely technical objection raised by the opposite party on account of the alleged failure of the complainant to implead the other partner of the Firm is not going to have, in our estimation, any impact on the merits of the case or for the determination of the real issues in controversy. Therefore, since rules of natural justice were not breached due to this deficiency, we are firm in holding that such failure has no relevance in the final adjudication of the complaint. Further, the various sections of the Act provide for an additional remedy which is meant to be summary and speedy in disposing the complaints under the same Act. Thus, we are unable to accept that the opposite party should attempt to graft Section 30 of C.P.C. in the Act when we find that the same is not substantial and the Legislature has not intended to do so.

THE last contention of the opposite party that the complainant who, by his own admission, was intending to purchase the suit shop for a commercial purpose could not make it the subject-matter of a dispute before the Consumer Agencies carries also no conviction. Indeed the complainant when produced the Booking Form revealed his intention to buy the shop to start therein a soft drink-cum-fast food joint. However, Explanation to Section 2 of the Act is clear to provide that for the purpose of Sub-clause (i) "Commercial Purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self employment (Emphasis supplied). THEre cannot be any dispute that the complainant in the instant case intended to run the business of fast food-cum-soft drinks in shop No. 11 for the sole purpose of securing his livelihood and the maintenance of his family. Hence the objection seems to be manifestly inocuous and is thus bound to be summarily discarded. This Complaint has been lodged by the complainant against opposite party and also three more parties, being Ponda Municipal Council as opposite party No. 2, Goa State Co-operative Bank Limited as opposite party No. 3 and Secretary, Legislative Assembly, Goa State, as opposite party No. 4. We find it difficult to appreciate the Complainant''s compulsion in dragging any of these Parties inn this litigation when there is no single averment in the complaint to make them liable for any relief in his favour or to disclose some privity of contract or even dealings with them. The only explanation which we are able to anticipate for this unwarranted impleading appears to rest on a strong feeling of frustration and helplessness, which seems reflected throughout the complaint consequent upon the action of the opposite party which appears to have deeply upset and disturbed him in search of an effective relief against the injustice caused to him by the said opposite party, in detriment of his legitimate expectation of securing the allotment of the suit shop. Be that as it may, we are greatly inclined to condone this faux pas of the complainant in the facts and circumstances of the case and we feel it sufficient to simply dismiss the same against the remaining three parties without any other consequences. In the result, we allow this complaint only against opposite party No. 1 and hold him liable to adequately compensate the complainant not only for commiting an unfair trade practice but also for insufficiency in service which he failed to render to him consequent upon a validly accepted booking of shop No. 11. For that the opposite party is directed to pay to the complainant, towards compensation, simple interest at the rate of 18% per annum on the amount of Rs. 5,000/- received by him as booking instalment, right from 8.4.1988 till its refund made on 15.11.1993. He is further directed to additionally compensate the complainant by making a payment of Rs. 1,00,000/- towards loss, extreme hardship, harassment and mental agony caused to him on account of this protracted litigation. We are awarding this amount under the abovementioned heads, on a merely subjective assessment which we feel consistent with the hard realities of life that a person subjected to such psychological trauma is always bound to face and which, in our estimation, will help to equate in a balanced manner the material needs of the complainant against the real interests of equity and fair play. Both these payments are to be made within 30 days from the receipt of this order failing which the amount of additional compensation will carry simple interest at the rate of 18% per annum till its full realisation. Further the opposite party shall pay costs to the complainant which we quantify at Rs. 2,000/-. Order accordingly. Complaint allowed.