GHEWARCHAND H.BOKARIA vs MAHESH TOLARAM

THE complainant claiming to be the consumer of the Housing Construction Service provided by the opposite party, has filed this complaint claiming inter alia reliefs for the possession of flat No. 702 on the 7th Floor in ''B'' Wing of "Kukreja Castle" situated on plot numbers 75, 76 and 77 of Sector 15, C.B.D., Belapur, Navi Mumbai or in the alternative for providing flat of similar type in the same locality and interest at the rate of 18% per annum on the amount paid by him to the opponent towards the consideration of flat till the date of handing over the actual possession of the flat. Few Relevant Facts : (i) THE complainant and opposite parties entered into an agreement dated 11.9.1993 whereunder the complainant booked a residential flat being flat No. 702 on the 7th Floor in the ''B'' Wing of the building which was proposed to be constructed by the opposite parties called ''Kukreja Castle'' situated at plot Nos. 75, 76 and 77 on Sector 15, CBD, Belapur, Navi Mumbai (hereafter referred to for the sake of brevity as ''said flat'') for the consideration of Rs. 9,67,500/- and consideration was to be paid as per schedule therein. THE said agreement is Annexure ''A'' to the complaint.

(ii) THE complainant proceeds that as per said agreement he paid first instalment of Rs. 2,72,000/- to the opposite party on 11.9.1993, i.e. on the day of agreement itself. It is to be stated that as far as said payment is concerned, there is no dispute at all between the parties.

(iii) THE complainant proceeds to state that after making the payment of first instalment as above he was ready and willing to pay the further instalments on the basis of schedule provided in the said agreement as also to pay the entire consideration as he was keen and eager to have a flat from the opposite party. He was also expecting the progress in the construction work of the building by the opposite party.

(iv) However, to his surprise he received a letter dated 21.6.1995 from the opposite parties forwarding the cheque for Rs. 2,72,000/- without any interest being the amount paid by him as a booking amount to them. THE said letter is at Ex. ''B'' to the complaint. THE said letter also mentions that complainant would send their cancellation letter about the agreement. THE appellant did not approve the unilateral manner in which the opposite parties acted and conducted themselves by refunding the amount of Rs. 2,72,000/- and by his Advocate''s letter dated 30.6.1995 did not accept the said cancellation as also did not realise the cheque

informing that : "In the circumstances, please note that our client is not accepting the said cheque of Rs. 2,72,000/- and the same will be returned by our client to you against your signing and executing the agreement for sale in favour of our client and till then the said cheque remained with our client and will not be accepted and encashed in any manner whatsoever." (v) THE said letter is at Ex. ''C'' to the complaint. THE opposite party sent reply through their Advocate to the said letter of the complainant''s Advocate on 18.7.1995 justifying the cancellation and the difficulties faced by them in undertaking the project. THE said reply letter is at Ex. ''D'' to the complaint. THE complainant sent rejoinder to the said letter from his Advocate''s letter dated 11.9.1995 which is at Ex. ''E'' to the complaint reiterating, what he has stated in his earlier letter.

IT is the case of the complainant that so called difficulties put forth by the opposite party in getting possession of the plot in question were not genuine and the opposite party themselves were the creators of the situation and it is they who committed default to pay the price of plots of land to CIDCO. The complainant is emphatic in his assertion that it was failure on the part of the opposite party in making payment to the CIDCO that the said plots of land were not delivered by CIDCO to opposite party. The opposite party No. 3 has filed the written say for and on behalf of opposite party denying and repudiating the case of the complainant. IT is inter alia asserted that the complainant is not a consumer under provisions of Section 2(1)(r) of Consumer Protection Act and thereafter complaint filed by him is not maintainable. The relief claimed is in nature of specific performance of contract which the Consumer Forum is not competent to grant. (i) that the complaint has been filed to extract amount from the opposite party; (ii) that complainant involves several disputed facts of law etc. On merits it is stated that the opposite party did not get the plots of land through CIDCO and, therefore, was unable to commence and complete the construction and hand over the possession of the said flat to the complainant. It is claimed by the opposite party that events which intervened were beyond their control. Following points woulsd arise for consideration : (i) Whether complainant is the consumer and entitled to the relief under the provisions of Consumer Protection Act, 1986 ? (ii) Whether complainant proves there being deficiency in services by the opposite party ? (iii) What relief the complainant is entitled to ?

The finding on the aforesaid issues are as under : (i) Yes. (ii) Yes. (iii) As per final order.

BEFORE considering each of the issues, it is to be stated that the material made available by the parties consists of their pleadings and proceedings in Writ Petition No. 442 of 1995 filed by the opposite party against the State of Maharashtra-CIDCO and others in the High Court at Bombay. Besides oral submissions were also made. Our findings on each of the issues are as under. The fact that the complainant is the consumer has to be reiterated affirmatively. The complainant as per agreement dated 11.9.1993 has agreed to purchase flat for his own benefit on terms and conditions as mentioned therein is not in dispute. It is not in dispute that as per said agreement the complainant has paid Rs. 2,72,000/- to the opposite party. The evidence clearly shows that the complainant was ready and willing to make the further payments as per agreement and he was keen to have a flat. The fact remains that the opposite party on their own by letter dated 21.6.1995 (Ex. ''B'') to the complaint proceeded to unilaterally terminate the contract and refund the amount of Rs. 2,72,000/- and said act of the respondent clearly shows their failure to render services which they have agreed by constructing the building and handing over the possession of the flat to the complainant. It is further to be noted that the opposite party received the booking money paid by the complainant for sum of Rs. 2,72,000/- on 11.9.1993 and proceeded to return only on 21.6.1995. Such conduct of the opponent would tantamount to refuse to render services that agreed upon for construction. Therefore, the same would constitute deficiency in the service and as such, issue Nos. 1 and 2 stand answered accordingly.

HAVING answered issue Nos. 1 and 2 as above, it is further to be stated that the reason or other grounds put forth by the opposite party for not completing the project would require consideration. It is to be noticed whether that would exonerate the opposite party from their obligation. For that purpose the relevant clause of the contract dated 11.9.1993 is very much material which reads as under : "The developer has informed the purchaser that the said plot Nos. 75, 76 and 77 in Sector 15, Central District, Belapur has been negotiated with CIDCO Ltd. who in turn have recommended the same to the Urban Development Department for allotment to the developer. For whatever reason if the said clearance is not obtained by CIDCO Ltd. from the Urban Development Department then in that case the purchaser shall be entitled to refund the deposit paid by him to the developer for the said flat. The purchaser is fully aware of this and has agreed to the refund of the deposit in the event of the said plot not being allotted to the developer."

It will be noticed by reading the above clause that only ground upon which the opposite party could rescind the contract was of Urban Development Department of the Government in not clearing the allotment of plots of land to the opposite party. However, from the proceedings in the writ petition being Writ Petition No. 442 of 1995 made available by the respondent themselves, it clearly shows that it was the opposite party who could not fulfill their obligations to CIDCO. Inasmuch as CIDCO vide letter dated 29.10.1997 addressed to the opposite parties which is part of Annexure to the said writ petition stated there being failure on the part of the opposite party to make the payment of the instalment towards the cost of construction. The relevant text of said letter reads as under : "You have not paid the amount of the second instalment so far. You have already been permitted to enter upon the plot of land being Plot Nos. 75, 76 and 77, Sector-15, CBD Belapur on payment of amount of first instalment as a special case. You are, now entitled to submit plan to the Navi Mumbai Municipal Corporation, obtaining approval thereto and start erection of the intended building without any problem of C.R. 7".

From the above letter it is clear that there was no difficulties whatsoever to the opposite party in obtaining possession of the plots of land on payment of price of the land. However, as the said record of the CIDCO mentions that it was the opponent-opposite parties who committed default and invited situation which prevented them from undertaking construction of the project. The relevant term of the contract dated 11.9.1993 does not envisage such situation, viz. default in payment.

SIMILARLY, the CIDCO has also by their earlier letter dated 16.4.1993 which is also part of the writ petition stated there being failure or omission on the part of the opposite party to make payment of the instalment in respect of the plot of land.

THUS only excuse available to opposite parties was difficulty at the end of State Government in clearing the allotment of the plot. But this was not the position. In fact, CIDCO had issued the allotment letters of the plots of land in question to the opposite party but it is because of opposite party failed to pay the consideration of plot of land and, therefore, land could not become available to them and it is not a fault on the part of the complainant. Taking into consideration all these facts, in our view, it has to be held that complainant succeeds in establishing there being deficiency in service by the opposite parties.

During the course of argument the learned Advocate for complainant stated that the complainant is not pressing with the other reliefs but he would satisfy if the amount of Rs. 2,72,000/- paid by him is refunded to him with interest at the rate of 18% per annum as claimed by him. That being so we pass the following order : Order 1. The opposite party jointly and severally ordered and directed to pay/refund the sum of Rs. 2,72,000/- to the complainant with interest at the rate of 15% per annum from 11.9.1993 till payment. The said payment will be made within 8 weeks from the date of receipt of this order by the opposite parties. 2. Opposite party shall also pay the costs of this complaint to complainant to quantify Rs. 2,000/-. 3. Office is directed to furnish copies of the order to the parties herein.

Complaint allowed with costs.