MABEL VALERINA OBAID Vs. FALCON RETREAT PVT LTD

JUDGEMENT

(1.) -COMPLAINT was filed, inter alia, alleging that after issuing advertisement in newspaper (s) in Oman, the opposite party No. 2 met the complainant in Oman and believing his words the complainant agreed to purchase undivided share of land admeasuring 3128. 40/3,75,000 in the property known as 'hir NAIQUE BIR NAIQUE AGOOR' surveyed under No. 142 sub-divisions 1 and 2 situated at Arpora, Bardez, Goa for a sum of Rs. 5,00,544 and that money was paid by Demand Draft No. 170199 dated 4. 12. 1995 drawn on Standard Chartered Bank, Vasco-da-Gama, Goa in the name of OP No. 1. and an agreement dated 3. 12. 1995 was executed between the parties. Under another agreement of the same date, the opposite parties agreed to construct a Villa bearing No. 555 admeasuring about 3128. 40 sq. ft. of the total super builtup area and towards value thereof Rs. 69,72,786 in advance was paid by means of Demand Draft No. 171098 dated 4. 12. 1995 drawn on the said bank. Opposite parties also accepted amount of Rs. 1,56,420 towards maintenance services by Demand Draft No. 171009 in addition to legal fee of Rs. 4,175 by Demand Draft No. 1700 from the complainant. It was further alleged that yet another agreement of Rent back facilities was executed on 3. 12. 1995 whereunder the opposite parties for the Villa agreed to pay to the complainant Rs. 4,00,000 p. a. for a period of 5 years. It was pleaded that since the complainant has been residing in Oman she contacted the Director (s) of the opposite parties on telephone to know the progress of the work and every time she was informed that the same was in progress at full speed. Complainant received a letter on 22. 1. 2000 from opposite party No. 2 wherein it was mentioned that the opposite parties did not have individual Villas any more and have constructed 75 luxurious apartments. On receipt of this letter, the complainant was shocked and she visited Goa some time in the month of May, 2000. On visiting the site, she saw that a multi-storeyed building had come up on the property. Complainant told the opposite parties that she is not interested in apartments as also pent houses. Alleging the opposite parties to be guilty of deficiency in service, the complainant sought directions to the opposite parties to refund the amount paid of Rs. 76,33,925 with interest @ 18% p. a. from 5. 12. 1992, to award Rs. 50,00,000 as compensation towards mental agony, Rs. 2,00,000 being the expenses incurred in travelling and stay in Goa and Rs. 2,00,000 towards expenses on telephone calls in contacting the opposite parties from Oman to Goa.

(2.) OPPOSITE parties contested the complaint by filing writing version. It was alleged that the complainant is not a 'consumer' within the meaning of Consumer Protection Act, 1986 (for short the Act ). Since the Villa was booked on Rent back basis, the complaint pertains to commercial transaction and is not maintainable under the Act. Complaint was stated to be maintainable only under the Specific Relief Act. Execution of 3 agreements, all dated 3. 12. 1995 and receipt of Rs. 5,00,544, Rs. 69,72,786, Rs. 1,56,420 and Rs. 4,175 by means of D. Ds. from the complainant were not disputed. It was, however, alleged that because of change in plan the construction of Villas could not be undertaken by the opposite parties and they offered to the complainant a fully furnished air-conditioned pent houses with covered area of 300 sq. mts. which she refused to accept. Liability to pay interest and compensation, etc. as claimed was denied.

(3.) IN support of the averments made in complaint the complainant has filed her affidavit. Ex. P-7 is the agreement for sale of undivided share in land while Ex. P-8 agreement is for construction of Villa No. 555. Exhibit P-9 is the Rent back facility agreement. Exhibits P-11 to P14 are the receipts evidencing payment of a total amount of Rs. 76,33,925 by the complainant Scheme was floated by opposite party No. 1 in conjunction with opposite party No. 3 whereof opposite party No. 2 who has filed the written version, was the Director. Receipts would show that amount of Rs. 69,72,786 was received by opposite party No. 3 while the balance amount by opposite party No. 1-Company. All payments were made through the demand drafts. In the written version the opposite parties have also not denied either the execution of said three agreements or the receipt of total amount of Rs. 76,33,925 from the complainant. Case set up by the opposite parties is that because of change in plan, construction of Villas could not be undertaken and a pent house of 300 sq. mtrs. was offered to the complainant which she refused to accept and complaint is not maintainable under the Act. Under the agreement Ex. P-8, the opposite parties were to construct Villa of approx. 3128. 40 sq. ft. of the total super built up area and the complainant was, therefore, fully justified in not accepting a pent house of a much lesser area of 300 sq. mtrs as offered by the opposite parties. Complainant was cheated by the opposite parties by not providing Villa upto 30. 9. 1998 as provided in the agreement Ex. P-8 in spite of their having received hefty amount of Rs. 76,33,925 in December, 1995 which they continue to retain till date. It is a case of gross deficiency of service on the part of the opposite parties. Remedy under the Act being in addition to and not in derogation of the provisions in Specific Relief Act, under Section 3 the complaint is maintainable. Complaint being based on deficiency in service the complainant is a consumer under the Act. Since the opposite parties had undertaken to construct a Villa for residence mere execution of Rent back facility agreement will not make the transaction commercial. Three-fold objections in regard to non-maintainability of complaint under the Act are, thus, repelled being without any merit. In addition to refund of the amounts paid, the complainant is entitled to interest/ compensation as also the cost.