GHEWARCHAND H BOKARIA Vs. MAHESH TOLARAM

JUDGEMENT

(1.) 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.

(2.) 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 Sec.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.

(3.) 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