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Judgment
Dr. S. M. Kantikar, J
The present First Appeal is filed under Section 19 of the Consumer Protection Act , 1986 (the 'Act') against the order dated 6-5-2016 of the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai (hereinafter referred as "State Commission "), whereby the complainant filed by the complainant was dismissed on the basis of being a simple money claim, which could not be entertained in a consumer fora as a consumer complaint.
Briefly stated facts are that, on 7-3-2012 , complainant booked a flat in the housing complex of OP - 1 named "Minerva" and on a verbal request of the chairman of the OP - 1 he issued a post - dated A/C payee cheque of Rs. 21 Lakh dated 1st April , 2012. It was towards part payment for booking of a flat. The cheque was encashed by the OP- 1 and a money receipt for Rs.21 lakhs was issued towards the booking of flat no. 5001, Unit A, on 50th floor. The complainant's main grievance is that , the OP- 1 did not provide further details about the terms and conditions of the agreement, schedule of payment, date of delivery of possession and the particulars of sanction of building plan from the competent authorities, copy of title deed of land .
Thereafter, on 23.05.2012, the opposite party no. 1 through email demanded for the payment of Rs.2,30,65,000/- on or before 25.05.2012. Accordingly, on 29.05.2012, the complainant had issued another post-dated a/c payee cheque of Rs.1,79,00,000/- in favour of Opposite Party no. 1 and handed it to the Opposite Party no. 2, the office of real estate broker at Kolkata with specific verbal instructions not to deliver the aforesaid cheque to Opposite Party no. 1 until Opposite Party -1 provides agreement of purchase inter alia with all details. Even then , Opposite Party - 1 failed to provide agreement of purchase and other details of the flat but kept on insisting on further payment.
Defying the instruction of the complainant, the Opposite Party - 2 delivered the aforesaid cheque to opposite party no. 1 without obtaining any receipt from Opposite Party no. 1. Therefore, as an abundant caution, the complainant instructed his bank to stop the payment of the said cheque. Thereafter, Opposite Party - 1 through email dated 12.07.2012 issued a notice to the complainant for cancellation of the flat stating that the booking amount of Rs.21 lakh will be forfeited and flat booking will be cancelled. The complainant , on realizing that he was kept in the dark regarding the specification of the flat , terms and conditions of the Agreement of Purchase etc. demanded the refund of the amount i.e Rs. 21 Lakh and return the uncashed cheque. However , Vide letter dated 9-8-2012 , OP 1 informed the complainant that the amount of Rs. 21 Lakh was forfeited. Contending the act of the OPs to be unfair trade practice, a complaint was filed before the State Commission.
The OP 1 resisted the complaint by filing a written statement and OP -2 was proceeded ex-parte. OP 1 contended that the State Commission lacked pecuniary jurisdiction as the total consideration of the flat was Rs. 71,90,00,000/- . Moreover, the OP 1 was forced to forfeit the amount as the complainant was a defaulter in payment of balance installments.
On the basis of the pleading and evidence, the State Commission dismissed the complaint inter alia holding that
"19 ) We find that complainant has not challenged cancellation of the booking. The complainant has only challenged the forfeited of the said amount and claimed the said amount which was paid by the Complainant to the opponent. Thus, we find that the complainant has filed the complaint only for claiming the amount paid by him to the opponent. In view of above discussion , we find that this is only a simple money claim which cannot be entertained as consumer complaint and hence , the complaint in present form is not tenable as consumer complaint. Hence , we answer point no. (ii) in negative."
Being aggrieved, the complainant filed this appeal.
We have heard the learned counsel for both the parties and perused the material on record. Admittedly , a receipt of Rs. 21 Lakh was acknowledged by the OP 1 by issuing a receipt bearing Sr. No. 000790, clearly stating that the amount was towards part payment on booking Flat No. 5001 Wing A on the 50th Floor at "Minerva" Mahalakshmi , Mumbai.
The sole question that has to be answered is whether the Appellant / Complainant is a 'Consumer' or not within the ambit of the Act.
Section 2(1)(d) of the Consumer Protection Act, 1986 reads as follows:-
(d)"consumer" means any person who,-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) 12 [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 12 [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person 13 [but does not include a person who avails of such services for any commercial purpose];
Let us see Clause (o) of subsection (1) of Section 2 of the Act, is the provision which is relevant in the present case. The same is reproduced below:-
(o)"service" means service of any description which is made available to potential 19 [users and includes, but not limited to, the provision of] facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 20 [housing construction,] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service; 21 [oo] "spurious goods and services" mean such goods and services which are claimed to be genuine but they are actually not so;]
In the instant case, the OP-1 had accepted the advance amount from the complainant for the construction of flat. Therefore, the complainant is a "consumer" under section 2(1) (d) of the Act, and the unfair act is also viewed as deficiency in service. Moreover, numerous e-mails exchanged between the parties cannot be overlooked. It is clear that the OP kept on demanding money without even issuing the allotment letter or specifying the terms and conditions of the Agreement etc. It infuriated the Appellant / Complainant and he demanded the refund of the amount deposited initially. The attitude of the OP 1 is, without any doubt, unfair.
Based on the foregoing discussion, we do not agree with the view taken by the State Commission that the complainant has not challenged the cancellation of booking and is only seeking the refund of the forfeited amount from the Opposite Party. The State Commission erred by holding that it was a simple money claim which could not be entertained as a consumer complaint.
We are of the considered view that the complainant is a consumer in terms of Section 2 (1) (d) of the Act , 1986.
The appeal is allowed. The order of the State Commission is set- aside and the matter is remitted back to the State Commission for further adjudication. The parties to appear before the State Commission on 25-4-2019.
A copy of this order be sent to all parties within ten days by the Registry.
Per Hon'ble Mr. Dinesh Singh, Member
Succinctly put:
(i) The State Commission vide its impugned Order dated 06.05.2016 has dismissed the complaint, inter alia holding that "- - - we find that this is only a simple money claim which cannot be entertained as consumer complaint and hence, the complaint in present form is not tenable as consumer complaint. - - - ."
(ii) The allegations (inter alia) made by Soumitra Kumar Shaw (the appellant herein) before the State Commission are to the effect that he paid a sum of Rs. 21 lakh to the opposite party no. 1 - builder co. through cheque; the said cheque was part consideration for a flat in the builder co.'s housing complex; the cheque was encashed by the builder co.; a receipt for Rs. 21 lakh was issued by the builder co. towards the booking of the subject flat; the builder co. did not provide complete relevant details, like the terms and conditions of agreement, schedule of payment, date of delivery of possession, particulars of sanction of the building plans from the competent authorities, copy of the title deed of the land, etc.; the builder co. through e-mail demanded a further Rs. 2,30,65,000/-; no basis / calculation of this demand was provided; he issued a second cheque for Rs. 1,79,00,000/- in favour of the builder co. and handed it over to the opposite party no. 2 - real estate broker co. with clear verbal instructions to not deliver the said second cheque to the builder co. until the builder co. provides the complete relevant details of the subject flat and land; the real estate broker co., violating his verbal instructions, delivered the said second cheque to the builder co. for encashment; as an abundant caution he (Soumitra Kumar Shaw) instructed his bank to stop the payment of the said second cheque; the builder co. through an e-mail issued a notice to him for cancellation of the subject flat and forfeiture of the booking amount of Rs. 21 lakh; he (Soumitra Kumar Shaw) demanded refund of the booking amount of Rs. 21 lakh; the said amount of Rs. 21 lakh was forfeited by the builder co.; the builder co. intentionally and deliberately avoided execution of the agreement.
(iii) This, thus, is a dispute between a buyer on the one side and a builder co. and a real estate broker co. on the other side.
(iv) Prima facie ingredients of both, deficiency in service within the meaning of sections 2(1)(g) and 2(1)(o), and unfair trade practice within the meaning of section 2(1)(r) of the Act 1986, are visible in the allegations.
(v) Payment of Rs. 21 lakh by cheque by Soumitra Kumar Shaw to the builder co. as part consideration for a flat in the builder co.'s housing complex, encashment of the said cheque by the builder co., email from the builder co. to Soumitra Kumar Shaw raising further demand of Rs. 2,30,65,000/-, email from the builder co. to Soumitra Kumar Shaw intimating forfeiture of the 'booking amount' of Rs. 21 lakh, are admitted facts.
(vi) Soumitra Kumar Shah, the buyer, i.e. the appellant herein, decidedly and irrefutably falls within the meaning of 'consumer' as defined in section 2(1)(d) of the Act 1986, he is a 'complainant' within the definition of section 2(1)(b). The allegations made by him before the State Commission are a 'complaint' within the definition of section 2(1)(c).
(vii) Soumitra Kumar Shaw, the appellant herein, and the 'consumer' - 'complainant' before the State Commission, can decidedly and irrefutably avail of the additional remedy provided for 'consumers' under section 3 of the Act 1986.
(viii) His complaint requires to be adjudicated, in the forum of original jurisdiction (State Commission), on merit, apropos both deficiency in service as well as unfair trade practice, while affording opportunity to both sides to adduce evidence and to argue their respective cases.
(ix) This bench has consciously refrained from examining or commenting on the merits of the case, since it does not want to in any manner color the vision of the State Commission (which has as yet to adjudicate the consumer dispute on merit).
(x) The bench finds that the Ld. State Commission has erred in dismissing the complaint vide its impugned Order dated 06.05.2016.
The said Order dated 06.05.2016 of the Ld. State Commission is set-aside.
(xi) The Ld. State Commission is requested to adjudicate the consumer dispute on merit as per the law.
(xii) As already directed in para 15 above, all parties may appear before the Ld. State Commission on 25.04.2019.