State Consumer Disputes Redressal Commission
M.S. Aditya Housing And Infrastructure ... vs Mr. Sanjay Kumar Singh on 8 February, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana First Appeal No. FA/106/2014 (Arisen out of Order Dated 28/03/2013 in Case No. CC/418/2012 of District Hyderabad-II) 1. M.s. Aditya Housing and Infrastructure Development Corporation Pvt. Ltd., Aditya Mansion, Plot No.A by 29, Road No.5, Jubilee Hills, Hyderabad 500 033 ...........Appellant(s) Versus 1. Mr. Sanjay Kumar Singh H.No., B-3 1st Floor Indian Airlines Colony, Near Begumpet Police Lines, Begumpet Secundrabad 500 003 ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Appellant: For the Respondent: Dated : 08 Feb 2017 Final Order / Judgement BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD FA NO.106 OF 2014 AGAINST CC NO.418 OF 2012 ON THE FILE OF DISTRICT FORUM-I, HYDERABAD Between: M/s Aditya Housing and Infrastructure Development Corporation Pvt., Ltd., Aditya Mansion, Plot No.A/29, Road No.5, Jubilee Hills, Hyderabad - 500 033. ...Appellant/Opposite party And Mr.Sanjay Kumar Singh H.No.B-3, 1st Floor, Indian Airlines Colony, Near Begumpet Police Lines, Begumpet, Secunderabad - 500 003. ...Respondent/Complainant Counsel for the Appellant : M/s Legal Matrix Counsel for the Respondent : Party-in-person Coram : Hon'ble Sri Justice B.N.Rao Nalla ... President and Sri Patil Vithal Rao ... Member
Wednesday, the Eighth day of February Two thousand Seventeen Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, Hon'ble President) *** This is an appeal filed by the Opposite party aggrieved by the orders of District Consumer Forum-I, Hyderabad dated 28.03.2013 made in CC No.418 of 2012 in allowing the complaint and directing the Opposite party to pay Rs.1,00,000/- with interest @ 9% p.a. from 04.11.2010 till realization, to the complainant and Rs.2,000/- towards costs of the complaint granting time of (30) days.
2) For the sake of convenience, the parties are referred to as arrayed in the complaint.
3) The case of the complainant, in brief, is that on 04.11.2010, he booked the flat bearing No.1210 with the opposite party in the project Black Florentine, Imperial Heights at Hafeezpet, Hyderabad by paying Rs.1,00,000/- through cheque number 430817 of Citi Bank for the reason that OP has enviable reputation with a good track record. However, complainant was disappointed at the appalling level of service meted out to him. The complainant cancelled the booking within two weeks from the date of booking and the opposite party assured the complainant that he would receive money within short span of time.
4) The opposite party, at its convenience, modified the assurance previously given to the complainant to the extent that the amount would be adjusted against the cost of the flat purchased by his friend in the same venture. But surprisingly, the opposite party went back on its word at the eleventh hour. This apathetic and apparently deceitful attitude of the opposite party reflects its indifference to the complainant's plight. The complainant wants his ordeal to end and expects the opposite party to pay him interest for the period of delay in refunding money.
5) Hence the complaint seeking direction to the Opposite party to apologize for the inconvenience caused to the complainant; to make-up for the mistake by refunding the complainant's money; to pay a sum of Rs.50,000/- towards the physical strain and mental agony suffered by the complainant and his family members; to pay a sum of Rs.1,000/- towards costs of the complaint.
6) The Opposite party resisted the claim by way of written version contending that complaint is misconceived, false and frivolous inasmuch as the complainant failed to set-out any ground for grant of relief and the complaint is devoid of merits, neither maintainable in law nor can be considered on facts. It is well settled law that "nullus commondum capere potest de injuria sua pro pria"- it is a maxim of law, recognized and established, that no man shall take advantage of his own wrong. Complainant, taking advantage of his wrong and filed the present case making false allegations against the Opposite party and he cannot acquire a right of action from his own wrong.
7) That the complainant booked the flat No.1210 admeasuring 1250 sft in the Block Florentine, Imperial Heights at Hafeezpet on 04.11.2010 for a consideration of Rs.36,50,000/- and paid a sum of Rs.1,00,000/-. The relation between the parties is that of a contractual obligation. The opposite party had not rendered any service nor did the complainant avail any services to claim deficiency in service. The complainant cancelled the flat within two weeks. The opposite party never assured to return the money. Complainant had to pay 10% of the flat cost i.e., Rs.3,60,000/- at the time of booking of the flat as advance and rest in instalments.
8) The complainant cannot claim damages or reliefs through the present complaint as he has become defaulter by defaulting payment of the balance sale consideration and also there is no deficiency in service on the part of the opposite party. The complaint does not fall within the meaning of Section 2(1) (c), (f) and (g) of the Act and when the complaint does not fall within the meaning of defect, deficiency and unfair trade practice, the same is liable to be dismissed with costs.
9) During the course of enquiry before the District Forum, in order to prove his case, the Complainant got filed his evidence affidavit and Exs.A1 to A3 and on behalf of the Opposite party, got filed the evidence affidavit of one Rajesh Pagadala, its Managing Director.
10) The District Forum after considering the material available on record, allowed the complaint bearing CC No.418/2012 by orders dated 28.03.2013, as stated, supra, at paragraph no.1.
11) Aggrieved by the above orders, the Appellant/Opposite party preferred this appeal contending that the forum below erred in appreciating the facts of the case, evidence on record and provisions of law applicable to the case. It failed to consider the facts that the Respondent has cancelled the flat on his own and after waiting for a long time, the amount paid by the respondent was forfeited which is valid and legal. The plea of adjustment of amount towards the purchase of flat of his friend is all false, created and misguided. Hence, prayed to allow the appeal and set aside the orders impugned.
12) The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief ?
13) It is not in dispute that the Respondent paid an amount of Rs.1,00,000/- towards booking of flat No.1210 to the Appellant. The only dispute is that there is averment of any deficiency in service on the part of the Appellant and no services were availed or hired. The case of the Appellant is that the Respondent himself is responsible for his own wrong doing and that the present case is a contractual obligation and that without assigning any reasons, the booking was cancelled by the Respondent. To vouchsafe its averments, no single document is filed. On the other hand, the Respondent got marked Ex.A1 to A3 documents including the written representation and e-mails addressed by him to the Appellant, which forms part of the record and there is no denial of the same.
14) A keen perusal of the contents of the e-mails addressed from time to time would goes to show that as the Respondent shifted his base to Bangalore, he opted for cancellation. However, as per the request of the Appellant, he brought in his friend who opted to purchase one of the flats in the Appellant's project on the assurance that the booking amount would be transferred and repaid to the respondent, but the same did not fructify, necessitating the Respondent to file the complaint. A perusal of the written representation dated 26.04.2012 would clearly show that the Respondent had pleaded deficiency in service and negligence on the part of the Appellant in non-refunding the amount. Nothing prevented the Appellant from filing the terms and conditions of the alleged contract stated to have been entered into between the parties.
15) To show that the flat bearing No.1210 had been kept aside without offering to third parties, no document is filed. On the other hand, the Respondent would contend that the same had been sold to some third party and the loan disbursement had also taken place. Even to accept the contention of the Appellant that they are entitled to forfeit the booking charges, no piece of paper is filed in that regard. The copy of registration form marked as Ex.A1 does not entitle the Appellant to forfeit the booking charges nor it contain any clause as contended by the Appellant. Viewed from any angle, we do not find any infirmity or irregularity in the well-considered order passed by the forum below. Accordingly, we answer the point framed for consideration at paragraph No.12, supra, against the Appellant and in favour of the Respondent.
16) In the result, the appeal fails and is accordingly dismissed with costs of Rs.5,000/- to be payable to the Respondent. Time for compliance : four weeks.
PRESIDENT MEMBER Dated 08.02.2017 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER