ORDER

Dr. Sadhna Shanker, Member—These cross appeals have been filed under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”) in challenge to the Order dated 07.11.2017 passed by the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur (hereinafter referred to as the “State Commission”) in complaints case No. 79 of 2016 whereby the complaint was allowed.

2. Heard the learned counsel for Ms. Pooja Goyal (hereinafter referred to as the “complainant”) and the learned counsel for M/s Trimurty Colonizers & Builders (P) Limited (hereinafter referred to as the ‘builder’) and perused the record including the State Commission’s impugned Order dated 07.11.2017 and the memorandum of appeal.

3. Brief facts of the case are that on 25.05.2010 the complainant booked a flat No. A-31, admeasuring 1439 sq. ft. in Trimurti Kohinoor Garden, Shyam Vihar Colony, Road, Jaipur, Rajasthan, at a rate of Rs.1650/- per sq. ft. and paid Rs.1,00,000/- as booking amount to the builder company. On 08.09.2010 an allotment letter was issued by the builder company. It is alleged that no demand letter was issued by the builder. On the contrary, on 25.10.2010, the allotment of the flat was cancelled. Hence, the complainant filed a complaint before the State Commission.

4. The builder contested the complaint by filing a written statement stating that the complainant is not a consumer within the meaning of “consumer” within the ambit of Section 2(1)(d) of the Consumer Protection Act, 1986 as no agreement of sale had been executed between the complainant and the builder, hence, the complaint is liable to be dismissed as not maintainable. It is further stated that the complainant had not paid the total consideration of the flat, therefore, the booking of the flat was cancelled on 25.10.2010. Despite this, the complaint is barred by limitation and the same is also liable to be dismissed on the point of limitation.

5. The State Commission allowed the complaint and directed the builder to refund the booking amount of Rs. 1 lakh along with interest at the rate of 9% per annum from the date of encashment of cheque i.e. 03.09.2010 along with compensation of Rs. 50,000/- and cost of Rs. 20,000/-.

6. Aggrieved by this Order passed by the State Commission, both the parties filed appeals before this Commission.

7. Learned counsel for the builder has argued that firstly argued that the cheque of booking amount was given on 25.05.2010, the booking was confirmed on 08.09.2010 and the cancellation of the flat was made on 25.10.2010 and from the date of cancellation, the limitation period had expired on 25.10.2012 i.e. 2 years period, and the complaint was filed on 30.06.2016, hence, the complaint is barred by limitation. He further argued that the complainant cannot be considered a consumer merely by booking a flat without entering into an agreement or making any payment. He has further argued that as no agreement to sell was executed between the builder and the complainant, there exists no consumer-service provider relationship between the builder and the complainant. Furthermore, learned counsel for the builder argued that the relief sought in the complaint resembles specific performance of the contract, which falls within the jurisdiction of a civil court and not with a consumer forum. Therefore, the complaint cannot be entertained under the Act.

8. The objection of the builder regarding the buyer not being a consumer has rightly been rejected by the State Commission taking into account the booking confirmation of flat A 31 vide letter dated 08.09.2010.

The objection regarding limitation has also been dealt with in detail by the State Commission, holding that the order of the State Commission dated 01.06.2016 was passed in presence of both parties and is final and binding on them.

Further, the State Commission has held as follows:—

“The other contention of the non-applicant is that he refunded the money alongwith Ex. 4 reply to the notice of the c