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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. S.M. Kantikar, Presiding Member and Dinesh Singh, Member
Soumitra Kumar Shaw—Appellant
versus
Lokhandwala Kataria Constructions Private Limited and Anr.—Respondents
First Appeal No.793 of 2016
(Against the Order dated 06/05/2016 in Complaint No. 162/2014 of the State Commission Maharashtra)
Decided on 18.3.2019
Counsel for the Parties:
For the Appellant:Mr. Sugata Shankar Roy, Advocate
For the Respondent No.1:Mr. S.B. Prabhavalkar, Advocate
For the Respondent No.2:Ms. Mayuri Shukla, Advocate
IMPORTANT POINT
If the claim is for the refund of the forfeited money due to unfair attitude of the OP himself, it cannot be termed as simple “money claim” and throw the complainant out of the purview of CPA.
Headnote:Consumer Protection Act, 1986 – Section 21(a)(ii); Section 2(1)(d) – Real Estate – Flat booked-due to certain facts, the OP cancelled the booking-the complainant did not challenge that, but only challenged the forfeiture of the amount – The State Commission dismissed the complaint, being only money claim – Hence appeal.
Held, the money was claimed only because of unfair attitude of the OP. Hence, it cannot be held to be a simple money claim. (Para 13)
The complainant was held to be “consumer” of the OP. (Para 14)
Matter remanded.
Result: Appeal allowed.
Dr. S.M. Kantikar, Presiding Member—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.
2. 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 .
3. 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.
4. 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.
5. 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.
6. 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.”
7. Being aggrieved, the complainant filed thi
