National Consumer Disputes Redressal
Ch. Srinivas vs Mantri Developers Private Limited & ... on 11 May, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 14 OF 2015 (Against the Order dated 13/09/2014 in Appeal No. 62/2013 of the State Commission Andhra Pradesh) 1. CH. SRINIVAS S/O CH.BALAKRISHNA, REP BY HIS GPA HOLDER CH.BALAKRISHNA , S/O AMARAIAH, R/O 42-971 JAWAHAR NAGAR, MOULAALI. HYDERABAD TELANGANA ...........Petitioner(s) Versus 1. MANTRI DEVELOPERS PRIVATE LIMITED & ANR. REP BY ITS MANAGING DIRECTOR, MANTRI HOUSE, 41 VITTAL MALYA ROAD, BANGALORE KARNATAKA 2. HEAD-SALES & MARKETING , MANTRI DEVELOPERS PVT LTD., OFFICE AT 126-127, NANAKRAMGUDA, GACHIBOWLI, HYDERABAD, TELANGANA A.P ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR, MEMBER For the Petitioner : Ms. Juhi Chawla, Amicus Curiae For the Respondent : Mr. Sahil Narang, Advocate With Ms. Nayam Chauhan, Advocate Dated : 11 May 2015 ORDER JUSTICE J.M. MALIK
1. The key question involved in this revision petition is, "Whether, a Builder can take a 'consumer' for a ride, after charging substantial amount of flat price without informing him what is the common area and what are the terms and conditions of cancellation of allotment which were stipulated in an agreement, which was never entered into between the parties, till the filing of this case?".
2. The facts germane to this case are these. The complainant, Ch.Srinivas, applied for a flat, bearing No.1903 on 19th Floor, D-Tower, with a built-up area of 198 sq.ft. @ Rs.2,810/- per sq.ft. from the Mantri Developers Private Ltd., OP1 and its Sales Office, OP2. The complainant paid a sum of Rs.3,26,491/-, towards the advance, at the time of booking of the said flat. The complainant was furnished a copy of agreement which did not contain the percentage of common area. He was, however, informed by the Sales Manager that the common area will be 30% of the total built-up area. The complainant insisted that this fact should find mention in the agreement. No agreement was executed in this context and he was informed that the common area will be 35%. The building plan was not yet approved. However, the petitioner was made to sign the printed application form to purchase the flat by paying the above mentioned earnest money. When this point could not be clarified or reduced in writing, the complainant asked for refund of the money. The complainant was informed that an amount of Rs.10,000/- p.m., will be deducted, per month, from the date of booking till the date of cancellation and the amount will be refunded only when the flat was resold.
3. On 03.01.2010, the OP cancelled the flat. However, the OP also sent a letter dated 15.01.2010 directing the complainant to pay the installment due as on 15.01.2010. The complainant issued a legal notice dated 15.01.2010 asking the OP to refund the amount.
4. On the other hand, the case of the OP is that the complainant is a defaulter and they rightly cancelled his flat. The OP has proved letter for allotment of flat. The details of unit applied for allotment, are mentioned here as under :-
" DETAILS OF UNIT APPLIED FOR ALLOTMENT
4. Scheme Mantri Celestia,Gachibowli, Hyderabad Flat No. 1903,Bldng. No.D Tower Floor No. 19th SBUA: 1198 sq. ft. @ Rs. 2810 per sq. ft.
Basic price of flat : Rs. 33,66,380/-
No. of car parkings: Open......Covered One Twin Cost of car parkings: Rs. 2,00,000/- Terrace area....... Sq.ft.@ Rs. N.A. per sq. ft. Amount Rs. ......... Garden area.......... Sq. ft. @ Rs. N.A. per sq. ft. Amount Rs. ....... Total value: Rs. 35,66,380/-
BESCOM & BWSSB expenses @ Rs. 100/- sq. ft. of SBUA or as charged to all members.
Maintenance deposit @ Rs. 25/- sq. ft. of SBUA or as charged to all members.
Club membership fee: Rs.1,00,000/-................(non-refundable) Stamp duty, registration fee, legal expenses & any other charges as applicable: At actuals Illegible................. Rs. 100/- per sq. ft.
TERMS & CONDITIONS I/We intending Allotees (s) have applied for the allotment of the residential unit with full knowledge and subject to all the laws, and the notification and rules applicable to this proposed housing unit.
If I/We am/are unable to proceed with the transaction and wish to cancel/shift this booking, Rs. 10,000/- will be deducted per month from the date of booking till the date of cancellation from the said amount paid along with this application and the remaining will be refunded to me/us only after the Unit applied for is resold to some other purchaser, from the sales proceeds received by the company from such purchaser for which I/we will not raise any objection.
I/We know that this application is tentative and shall only by finalized on your acceptance of the same".
5. Both the fora below came to the conclusion that the OP is entitled to deduct Rs.10,000/- per month, and directed it to refund a sum of Rs.2,60,491/- only, instead of Rs.3,26,491/-.
6. We have heard Amicus Curiae for the Petitioner and counsel for the parties. This is an indisputable fact that no agreement was executed by the parties. The letter dated 12.12.2009 sent by the OP to the complainant, runs as follows:-
"Mr. Ch. Srinivas House No. 42-971, Jawahar Nagar Moula Ali, Hyderabad-500 040 Email: [email protected] Ph:9866388478 Greetings from Mantri Celestia This is with reference to our several reminder and also continuous telephonic follow up on signing of the agreement for the apartment D-1903 that you have booked in Mantri Celestia.
We have noted that you have not yet completed the formalities.
Please visit our office on or before 25th December, 2009 and complete the pending agreement formalities.
This communication may be taken as the final reminder in this regard.
In the event of not getting a suitable response from your end, we will be constrained to initiate appropriate action.
Thanks & regards".
7. The termination letter dated 03.01.2010 was proved on the record. Its relevant portion is reproduced here, as under :-
"In spite of repeated requests and reminders you have failed to perform your part. It is therefore inferred that you are not interested in continuing your booking at the above-mentioned scheme.
Now your booking is treated as cancelled, as per the terms mentioned in the 'Application for Allotment'. You are requested to complete the formalities and collect the amount pending in your account with us at the earliest.
8. The OP, in its written statement, made the following averments :
"2. It is submitted that the Complainant after payment of the said Booking amount has failed to pay the balance amount. Hence, the token amount paid towards the purchase of the apartment shall result into forfeiture as contained in clause 2 of the application for Booking and Allotment Form, which has been consented and duly signed by the Complainant. Therefore, the present dispute pertains to breach of contract and the consequences thereof, as such, the remedy available to the parties' lies elsewhere and not before this Hon'ble forum. The sole purpose for filing the present complaint before this Hon'ble Forum is to avoid payment of court fee and to avoid the consequences of breach by the Complainant".
9. This reveals that cancellation of allotment was an unilateral action on the part of the petitioner. It had given only 15 days' time for deposit of the said amount, without any agreement. However, on 25.01.2010, another letter was sent wherein it requested the complainant to pay an amount in the sum of Rs.12,85,866/- with the Site Office, before 01.02.2010 and oblige.
10. Learned counsel for the OP vehemently argued that they had made several telephonic calls for execution of the agreement and addressed a letter dated 18.12.2009 to the complainant, to visit their office on or before 25.12.2009 to complete the pending agreement formalities. Ultimately, they validly terminated the allotment vide letter dated 03.01.2010.
11. All these arguments lack conviction. It is difficult to fathom, why, the agreement was not executed at the time or about execution of receipt in the sum of Rs.3,26,491/-. The terms of the agreement to be entered into with the allottee were never shown to the allottee at the time of booking of the apartment/flat. Those terms and conditions of the allotment letter were prepared and framed by the O.P., unilaterally without consulting the buyer. The petitioner/ complainant did not know what is the carpet area and what was the common area. Those important facts were kept under the hat. It was the duty of the OP to explain to the complainant, each of the terms and conditions at the time of accepting a huge amount in the sum of Rs.3,26,491/-. The terms and conditions of the termination, payment of installment (s), the time-table, etc., should have been culled out at the time of accepting the sum of Rs.3,26,491/-. The complainant was not aware of the terms and conditions. He was working on a pamphlet simpliciter. The terms and conditions of the agreement, with the complainant, were never settled.
12. The OP should have provided a copy of the agreement which was proposed to be entered into between the parties. The time/terms of the termination of the allotment was also not agreed upon between the parties. Till the filing of the complaint, the complainant was not aware, how much would be the common area and how much would be the carpet area.
13. In a case titled Samarth Associates Engineers & Builders & Ors. Vs. Ramesh Ramchandra Lokhande, Revision Petition No.4729 of 2013, decided by this Bench, on 10.09.2013, we came to the conclusion that the terms and conditions of the plot must be informed to the consumer, otherwise, it will amount to deficiency in service. We also, further, placed reliance on the judgment passed in Belaire Owners' Association Vs. DLF Ltd. & Ors., Case No.19/2010, vide supplementary order dated 03.01.2013, wherein the Competition Commission of India, held :-
"31.The terms of the agreement to be entered into with the allottee were never shown to the allottee at the time of booking of the apartment. These terms and conditions of the agreement were prepared and framed by the company unilaterally without consulting the buyer. Once the company had already received considerable amount from the applicants/buyers, this agreement was forced upon the allottees and the allottee had no option but to sign the agreement, as otherwise the agreement provided for heavy penalties and deduction from the money already deposited by the allottees with the company, which itself was an abuse of dominance. The appropriate procedure would have been that a copy of the agreement which DLF proposed to enter with the allottee should have been made available to the applicants at the time of inviting applications".
14. A Special Leave to Appeal (Civil) Nos. 36667-68 of 2013, was filed against the judgment and order passed in Revision Petition No.4729 of 2012, wherein the Hon'ble Apex Court, vide its order dated 16.12.2013, dismissed the same.
15. In another case reported in Sahara Prime City Ltd. & Ors. Vs. Divya Rathore, this Commission vide its order dated 02.05.2011, came to the conclusion that unilateral cancellation of booking is not justified and proper and Claim of consumer for refund of amount was held to be justified.
16. In view of this discussion, we are of the considered view that the complainant is entitled to the entire amount, in the sum of Rs.3,26,491/-. The said amount be paid by the OP to the complainant, after deducting the amount already paid to the OP, within a period of 90 days' from the date of receipt of copy of this order, otherwise, after expiry of said 90 days, it will carry interest @ 9% p.a., till its realization.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER