ANIL CHHUGANI Vs. SHRIKANT PATHAK

JUDGEMENT

(1.) -THIS appeal is directed against the order dated 20. 7. 2006 passed by the District Consumer Disputes Redressal Forum, Raipur (hereinafter referred to as 'district Forum' for short) in Complaint Case No. 155/2005, whereby the complaint was allowed.

(2.) IN brief facts of the case as narrated in the complaint are that the complainant had booked Shop No. 9 of the commercial complex under construction by the OP and out of total consideration of Rs. 1,10,000 the complainant had paid a sum of Rs. 45,000 on 9. 9. 2002 towards booking amount. At the time of booking the complainant was assured that the construction of shops will be completed within 6 to 8 months and after taking balance payment the shop will be handed over to the complainant. The OP failed to complete construction within the stipulated period and the complainant made repeated requests to the OP for handing over the possession of the shop but to no avail. On the contrary, the OP had sent a legal notice dated 7. 3. 2005 informing, that as the complainant had not deposited balance amount the shop was sold to some other person and the complainant could take refund within a period of 7 days. The complainant sent reply to the said notice. It is further averred in the complaint that the construction was not completed till the date of complaint. The act of retaining money of the complainant for a period of three years without completing construction amounted to deficiency in service. The complainant had prayed for direction to hand over possession of shop or alternative shop together with compensation and costs.

(3.) THE appellant/op had in the written version averred that the remaining consideration was to be paid by the complainant within a period of one month and thereafter within a period of 6 to 8 months the possession of the shop was to be handed over but the complainant failed to make payment on time. The amount was not paid despite several remainders and on the contrary, the complainant had expressed his inability for paying the amount and wanted the money back. As the OP was prepared to refund the booking amount, he had sent legal notice and in reply to the same, the complainant made an illegal demand of the Rs. 1,45,000. By way of additional pleadings, the OP has raised objection regarding jurisdiction of the Consumer Fora and had alleged that the complainant is not a consumer. It was further averred that the complainant himself has committed breach of contract and in the circumstance remedy, if any, is before the Civil Court. It was further averred that the subject shop was already sold to someone else and fact was communicated to the complainant vide legal notice. The demand of Rs. 1,45,000 made by the complainant is illegal and the complaint is misconceived, hence the same may be dismissed subject to costs.