K G MANDAOKAR Vs. KETAN CONSULTANTS PVT LTD

JUDGEMENT

(1.) -this is a complaint in which the complainant alleged the deficiency in the service of the opposite party, viz. , the builder. Shortly stated, the facts are that the complainant entered into an agreement with the opposite party on 8.2.1990 to hire the services for construction of a flat at Nagpur for a consideration of Rs.2,05,000/-. The complainant alleges that he was living as a tenant in the premises where the flats were to be constructed. The house belonged to Mr. Dilip Deoras. The opposite party is alleged to have entered into contract with said Doers on 9.9.1988 for development of the same land. The complainant further alleged that since he was residing on the same land in a tenement as a tenant, the opposite party could not construct the flats unless complainant vacated the tenement. According to complainant, there was again another agreement for vacating his rented premises on 24.1.1989. That agreement is also on record. According to complainant, the opposite party agreed to pay to the complainant Rs.50,000/- as a consideration for vacating his premises in question so as to enable the opposite to proceed with construction. The complainant further alleged that by the same agreement, the opposite party agreed to sell a flat to the complainant in the said scheme. The complainant further alleged that he paid in cash Rs.20,000/- at the time of the agreement and, thereafter paid Rs.52,000/-. The complainant thus alleged that he paid Rs.1,22,000/- including Rs.50,000/- for vacating the tenement and the balance could not be paid due to his difficulties. Despite the agreements and payments of Rs.1,22,000/- explained above, the opposite party on 17.7.1990 send the complainant a notice intimating the cancellation of the agreement in question. The complainant, therefore, filed his complaint alleging that the opposite party who had volunteered to render his services for construction of the flat failed to execute it as per the terms of agreement and unilaterally committed the breach of contract. Complainant approached this Commission claiming the possession of the flat or in the alternative refund of Rs.1,22,000/- with interest at the rate of 18% p. a. In support of his allegations the complainant filed the necessary agreement and other documents. The opposite party filed its written version on 7.10.91 denying the claim of complainant. interalia the opposite party disputed the claim of complainant on the technical grounds that the complainant is not a consumer and consequently not entitled to approach this Commission.

(2.) We have heard the complainant through Smt. Padolay, Advocate and Opposite Party through Shri Patwara an Advocate. We have gone through the records of the case. The following points arise for our consideration : - (1) Whether the complainant is a consumer within the meaning of Consumer Protection Act, 1986 ? (2) Whether the complainant hired the services of opposite party and if yes, was there any deficiency in the service of the opposite party? (3) Whether the complainant is entitled for reliefs claimed in the complaint Our answer to the above mentioned points are in the affirmative.

(3.) As regards the first point, it is an admitted fact that the complainant had entered into an agreement with the opposite party on 8.2.1990. The copy of the agreement clearly shows that the aforesaid agreement was linked with another agreement dated 9.9.1988 in which the opposite party had agreed to develop the land in question at Nagpur for construction of flats. The agreement further shows that complainant had agreed to purchase apartment No. GB-3 on the ground floor of which the entire construction work was entrusted to opposite party. The estimated value of the construction of the flat is mentioned at Rs.1,35,500/-. The stipulation about the payment is shown in para 1 of the agreement. The possession was to be handed over to complainant within 18 months from the commencement of the work. Thus, it is clear that the opposite party had volunteered to render the service of construction of a flat for the complainant' as per the agreement. The contents of the agreement clearly show that the opposite party agreed to render necessary service for the construction of flat for complainant. In view of the decision of National Commission in the case of U. P. Awas Evam Vikas Parishad V/s. Garima Shukla, 1991 1 CPJ 1, the activity in which opposite party is engaged clearly clothes the complainant with the status of a consumer. Thus, the complainant is a consumer within the meaning of Sec.2 (1) (d) of the Consumer Protection Act. It is further stated by the complainant that the construction of the flat commenced in the month of May, 1989 and completed in the month of July, 1990.