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2025 Supreme(Online)(NCDRC) 2941
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
A.P. Sahi, PRESIDENT, Bharatkumar Pandya, MEMBER
Shree Ganesh Developers Co. – Appellant
Versus
Mr. Bomma Gopal Ramlu – Respondent
FIRST APPEAL NO. 75 OF 2015
For the Appellants: Mr. Pdam Kumar Jalan
For the Respondent: Mr. Uday B. Wavikar, Mr. Vikas Nautiyal
Failure to fulfill contractual obligations leads to liability for deficiency in service under consumer protection law.
Headnote:(A) Consumer Protection Act, 1986 - Section not specifically cited - Deficiency in service - Builders cancelled booking of flat due to delay in payment of installments, but appellant failed to communicate progress of construction or demand for further payments - State Commission found builders guilty of deficiency in service; complaint partly allowed. (Paras 4, 5, 8, 9)
(B) Contract Law - Conditions of allotment - Timely payments as essence of contract - Purchaser paid initial amount but builder failed to follow through on contractual obligations leading to unfair trade practice. (Paras 3, 6)
Facts of the case:
Complainant booked a flat by paying part amount; delay of further payments led to cancellation by builders. Builders claimed payments were insufficient and alleged forged documents from the respondent.
Findings of Court:
Builders guilty of deficiency in service due to improper cancellation of booking without valid evidence of payment communication.
Issues: Whether the builder properly cancelled the booking and followed the payment obligations?
Ratio Decidendi: Court affirmed the finding of the State Commission that cancellation was unjustified as builders did not prove communication of payment due.
Result: Appeal partly allowed with directions for the builders to complete agreements and possibly provide alternative housing or refund with interest.
ORDER
PER BHARATKUMAR PA ND YA. MEMBER
1. This appeal has been filed by the OP builder/appellants herein against order dated 24.11.2014 passed by the State Commission, Maharashtra whereby State Commission, while partly allowing the consumer complaint, held appellants guilty of deficiency in service.
2. The brief facts of the case as narrated by the appellant builder are that Appellant No. 1, a registered partnership firm, consisting of the Appellant No.2 and the Appellant no.3 as its partners joined in the said partnership for development of the project of 'Chourang Building' at Vashi in Navi Mumbai. The construction of the multi-storied apartment house building was completed and the same was also handed over to the society of the apartment owners of the said building in accordance with law. On 04.06.2007 respondent/complainant booked a flat no. 1205 on 12th floor of the said building by making a part payment of Rs.1,00,000/- by cheque. The cheque was eventually dishonoured by the bank on 05.06.2007. On being informed about the same, the respondent made arrangement for clearance of the same on a later date following which he was immediately issued an allotment letter by the appellant builder on 22.06.2007 showing the payment schedule. As per said letter of allotment, 10% of the aggregate price of the flat amounting to Rs.49,18,995/ as stated at SI. No. 1 of the Payment Schedule contained therein was to be paid by the respondent. Respondent/complainant did not pay the EMD as stipulated, his deposit of Rs.1,00,000/- was only a part payment intended to reserve the flat only. The respondent did not make any further payment as required by the said Letter of Allotment as per the schedule. The appellants vide letters dated 13.06.2007 and 20.07.2007 asked the respondent to make payment of the instalments due as on that dates in connection with the booking of his flat but he did not come forward to make any payment. The condition 2 of the Allotment letter dated 22.06.2007 (Annexure E p. 57-58) makes it amply clear that payment of instalments in time was of the essence of the contract and non-fulfilment of any of the terms would automatically invalidate and nullify the allotment. The appellants, thereafter, were obliged to cancel the booking made by the respondent vide their letter dated 22.08.2007 (page 135 of the file) and requested the respondent to collect the refund of the money deposited by him from office on surrendering the payment receipt and the letter of allotment issued to him. The respondent, however, did not respond nor made any contact by any mode of communications with the appellants.
2.1 On 13.12.2008 i.e. nearly one and half year after the initial booking and cancellation thereof, the respondent, for the first time, contacted the appellants and levelled various allegations against them. The appellants duly gave a reply to the respondent through their advocate on 19.01.2009 which was also duly received by the respondent. In response a notice through advocate was also issued by the respondent on 24.10.2011, which was responded by the appellants on 19.11.2011. Respondent was supposed to pay 10% of value i.e., Rs.5,04,400/-as EMD at the time of booking itself. But the Respondent failed to make payment of the balance amount of Rs.4,04,400/- rendering the booking liable to be cancelled.
3. However, on 29.06.2012 a consumer complaint was filed by the complainant/respondent before State Commission, Maharashtra. It is for the first time, during filing of the Consumer Complaint No.155 of 2012 in the State Commission, that respondent claimed to have paid Rs.4,00,000/- in cash without producing any valid money receipt for the same. The alleged acknowledgement is a forged piece of paper and without affixation of revenue stamp and no such payment has ever been received by the appellant.
4. After hearing the submissions of both parties and carefully examining the evidence and record, the State Commission partly allowed the complaint and pa
