CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE, MUMBAI



First Appeal no.263/2008 Date of Filing: 18/02/2008

Consumer Complaint No.71/2007

District Consumer Forum: Raigad Date of Order: 02/06/2009



Mr.Dilip Vasantrao Kadam, Appellant

J-1,2nd floor, Room No.9, (Org.Complainant)

Jyoti Co-operative Housing Society,

Yugantak Complex,

Sukapur, Pali Deved,

Tal: Panvel,

Dist- Raigad

V/S

Shri Anil Baburao Achrekar, Respondent

Proprietor- M/s. Swami Developers, (Org.Opp.Party)

E-203, New Rachana Housing Society,

Chakki Naka, Tisgaon Road,

Kalyan (E), Dist- Thane.





Corum : Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member.

Smt.S.P.Lale, Hon’ble Member.



Present: Adv.Shri Manoj Mhatre for appellant.

Adv.Shri vijay Bhiwande for respondent.



:- ORDER :-

Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member:

This appeal arises out of order/award dated 05/11/2007 passed in consumer complaint no.71/2007Shri Dilip Vasantrao Kadam v/s. Shri Anil Baburao Achrekar by District Forum, Raigad (Forum below in short). It is the case of the appeallnt/org.complainant/Dilip that he agreed to purchase one residential unit and one shop from a newly constructed building-Swami Sadan, developed and built by respondent/org.opp.party/Anil Acharekar as per agreement dated 05/04/2004 for consideration of Rs.5,29,000/- and Rs.2,68,000 total amounted to Rs.7,12,000/-. Out of same the complainant claimed to have paid Rs.62,500/-. To pay balance of the purchase price, the complainant had taken loan of Rs.4,90,000/- from General Insurance Housing Finance. Since he had not received the possession of the property, he suffered losses on two counts viz. required to pay interest on loan of Rs.41,730/- to the Finance Company and secondly, had to incur expenditure of Rs.30,000/- to pay the rent till the end of March-2007of accommodation taken on rent. Therefore, he filed consumer complaint to claim back the possession for the compensation of Rs.6,85,000/- since the builder failed to give possession of the property and additional compensation of Rs.1 lack since he was required to pay interest to Housing Finance Company and incurred expenditure for hired accommodation. Consumer complaint came to be dismissed by impugned order and feeling aggrieved thereby, this appeal is preferred by original complainant.

We heard Adv.Shri Manoj Mhatre for appellant and Adv.Shri vijay Bhiwande for respondent. Perused the record.

In the instance case Forum below misdirected itself by wrongly interpreting the provisions of Section 2(1)(d) of Consumer Protection Act, 1986 (hereinafter referred as Act for brevity) and held that the transaction under which complainant agreed to purchase the property being commercial transaction, the complainant is not a consumer. Thus, Forum below committed illegality which resulted into miscarriage of justice.

Forum below also arrived at a wrong conclusion by observing that the complainant is in the nature of claiming specific performance of a contract and which need scrutiny of the evidence carefully and therefore, it is the Civil Court which ought to have dealt with it and it is not a fit case which the consumer Forum should entertain. By refusing to assume the jurisdiction, Forum below committed illegality. The dispute could be very well settled by consumer Forum subject to the limits of their own empowerment spelled out under Section 14 of Consumer Protection Act, 1986.

For the reasons stated above, we find that it is a fit case for remand. We hold accordingly and pass the following order:



:-ORDER-:

1. Appeal is allowed.

2. Impugned order dated 05/11/2007 is set aside.

3. Matter is remitted back to Forum below with a direction to give both the parties a fresh hearing inter-alia including addressing of evidence as per Section 13 of the Act and then settle the consumer dispute according to law.

4. In the given circumstances there is no order as to costs.

5. Copies of the order herein be furnished to the parties.





(S.P.Lale) (S.R.Khanzode)

Member Presiding Judicial Member