Heard the Ld. Advocates on both sides for and against the MA.

The order on the application would be passed in the late hour of this day.

Late hour

Today is fixed for hearing of Miscellaneous Application being No. 59/2022.

The MA has been filed by OP 1, OP 2 and OP 3 seeking dismissal of the case on the ground that the case is not maintainable. Ld. Advocate of the complainant who has received the copy of aforesaid application has filed W/O. The order giving opportunity to file W/O to the aforesaid application to OP 4 was recorded inadvertently and the said order stands vacated. When some of the Ops has sought for dismissal of the case, the rest Ops are not entitled to an opportunity of filing W/O to the said application. Therefore, the said order stands vacated. The OP 4 cannot be expected to advance submission contrary to the OP 1, 2 and 3. As such, Ld. Advocate of the complainant and the Ld. Advocate of OP 1, OP 2 and OP 3 are only heard for and against the application.

From the record, it is apparent that the complainant agreed to purchase a flat from the developers at Rs. 68,50,000/-  and made payment of Rs. 5,00,000/- (Rupees five lakh) by cheque being No. 361495 dated 12.08.2021 + Rs. 9,50,000/- (Rupees nine lakh fifty thousand) on 19.10.2022 by cheque being No. 936496 dated 22.10.2021 totalling Rs. 14,50,000/-. But the developers abstained from handing over the relevant documents to the complainant and also from executing a sale agreement. Time and again, the complainant requested the developers for supplying the property papers and for execution of sale agreement; but in vain.

The complainant also sent letter dated 01.11.2021 to the developers for that end. Again, fresh demand for a payment of Rs. 9,00,000/- was made by the developers on 03.11.2022 without supplying the necessary documents. Moreover, the developers unilaterally increased the property value to Rs. 70,00,000/-. The complainant who was in need of property papers abstained from making payment of demanded amount in the absence of agreement for sale. The Ops however refunded Rs. 7,55,000/- out of Rs. 14,50,000/- to the complainant in cancellation of the proposed deal. But the rest amount was not paid by the Ops for which the complainant filed this case for refund of Rs. 6,95,000/- with compensation and other reliefs.

By filing the aforesaid MA, Ld. Advocate of the OP 1 to OP 3 has contended that in view of the refund of Rs. 7,55,000/- being made by the Ops in favour of the complainant, the complainant ceased to be a consumer and in support of his such contention, he has referred to the judgement passed by the Hon’ble State Commission in CC/679/2017 on 17.01.2018 and also to the judgement of the National Consumer Commission  reported as iii(2012) CPJ  456 (NC).

But on careful perusal of the aforesaid judgement, it appears that the facts of those cases are not identical to the facts of the case in our hand. Therefore, the observation of the Hon’ble State Commission or National Commission made in the aforesaid cases to the effect that the complainant ceases to be a consumer merely by accepting part of the refund amount cannot be applied into this case.

With an assurance to provide him with a flat priced at Rs. 68,50,000/-, the Ops collected Rs. 14,50,000/- from the complainant. Neither the Ops arranged for execution of sale agreement nor handed over the property papers including sanctioned plan and development agreement. This is a clear cut case of unlawful trade practice on the part of the Ops. Good senses, however, prevailed upon the Ops for which the refund of Rs. 7,00,000/- was made by them in favour of the complainant – although they were under obligation to refund Rs. 14,50,000/-. The Ops have unjustly been utilizing complainant’s money since October, 2021 causing harassment and agony to the complainant. What the developers have done in this case clearly comes within the ambit of “civil wrong” where the remedies available to the complainant are damages. The complainant has got continuous cause of action since October, 2021 against the Ops. The complainant has brought to this Commission a case of unfair trade practice and this Commission cannot turn a blind eye to it. We are unable to hold that the case is not at all maintainable.

The MA filed by OP 1 to OP 3, as such, calls for no action and hence rejected.

The MA being No. 59/2022 is thus disposed off.

17.04.2023 is fixed for filing evidence on affidavit by the complainant.