National Consumer Disputes Redressal
Classic Kudumbam vs S. P. Sundaram & Anr. on 10 January, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4695 OF 2013 (Against order dated 05.09.2013 in First Appeal No. 74/2006 of the State Consumer Disputes Redressal Commission, Tamil Nadu, Chennai) WITH IA/7781/2013 IA/7782/2013 (FOR STAY, EXEMPTION FROM DIM DOCUMENTS) Classic Kudumbam Retirement Community Through Mrs. Bhanumathi, Proprietrix, Classic Farms Road, Old Mahabalipuram Road IT Highway, Sholinganallur, Chennai-600 019 Petitioner Versus 1. Mr. S.P. Sundaram R/o SSM Residence, Moppedu Road Alapakkam, New Perungalathur, PO Chennai-600 063 2. Mrs. Bhavani Sundaram R/o SSM Residence, Moppedu Road Alapakkam, New Perungalathur, PO Chennai-600 063 Respondents BEFORE: HONBLE MR. JUSTICE J.M.MALIK, PRESIDING MEMBER HONBLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mr. R. Anand Padmanabhan, Advocate Mr. Wassay Khan, Advocate PRONOUNCED ON 10th JANUARY, 2014 ORDER
PER DR. S.M. KANTIKAR
1. The Complainants/Respondents Mr. S.P. Sundaram, aged about 82 years and his wife Mrs. Bhavani Sundaram, aged about 72 years, entered into an agreement (Deed of License) on 04.06.2005, for booking an apartment with the Classic Kudumbam Retirement Community, the Opposite Parties, by paying Rs.7 lakhs. The Complainant No.-1 wrote letters dated 18.08.2005 and 23.08.2005 and expressed his dissent and grievance about the functioning and management of OP.; therefore the OPs, terminated the contract, and the Complainants, under protest, vacated the premises of OP, on 28.02.2006. The Complainant -1 wrote a letter to OP on 14.04.2006 for refund of the deposited amount; but the OPs declined, to pay the same. Therefore, alleging deficiency in service by OPs, the Complainant filed a complaint before the District Consumer Disputes Redressal Forum (referred herein as District Forum), claiming refund of the amount paid, along with compensation.
2. The District Forum, after considering the evidence, held the OP liable for deficiency in service and directed the OPs to refund Rs.6,50,000/-, along with compensation in the sum of Rs.20,000/-.
3. Aggrieved by the order of District Forum, the OP preferred an appeal before State Consumer Disputes Redressal Commission (in short, State Commission) . The State Commission dismissed the appeal. Hence, the OP filed this revision petition.
4. At the admission stage of this revision, we have heard the Counsel for the petitioner/OP. He vehemently argued that, as per deed, the deposited money is Non Refundable. He also submitted that OP has not invited the complainants to take membership, but the complainants preferred the concept of retirement community homes of OP. Nobody compelled the complainants to sign the agreement. Also, as per terms and conditions of license deed, the OP has the right to vacate any resident who indulges in any activity that might disturb the tranquil ambiance of Kudumbam as also their residents and employees. The act and conduct of complainants forced the OP management to expel them. The Counsel for the OP/Petitioner further contended that the complainants are not consumers.
5. We have perused the evidence on record and the documents placed on file, such as Deed of Licence, affidavit evidences and the letters/ correspondences exchanged between the parties. One of the clauses stipulated in the deed of license, mentions as, non-refundable. If the OP wanted to cancel the licence, OP should have done it, only in accordance with clauses 4, 5 and 17 of the Deed of Licence. As per clause 17, though it has been specifically stated that the licensor can cancel the licence, after giving 90 days notice to the licensee, however, in contravention to the stipulated conditions, admittedly, in this case, only 30 days notice was given. The Complainant has paid the monthly charges for the facilities he had used, and in fact, though he has paid Rs.50,000/- towards booking charges, he had not claimed refund of the same. The Complainant has requested only for the refund of the deposited amount of Rs.6, 50,000/- and the District Forum, on well founded grounds, has allowed the complaint, and there is no valid grounds to set aside the same.
6. On perusal of letters written by the Complainant No 1 to the OP, it does not give any impression of use of any abusive language. But, we appreciate the courage and fighting instinct of the complainant who raised voice against such OPs, who have indulged in unfair trade practice, by charging exorbitant amounts, towards the monthly maintenance charges and additional 10% over TNEB rates. The complainant is really a whistle blower in this case, who has been fighting for the rights of himself as well as for the rights of the residents of Classic Kudumbam. Though it was alleged that the Complainant has misbehaved with the Opposite Party, the Opposite Party has not produced any material or cogent evidence to substantiate the same, and under such circumstances, these grounds cannot be treated as valid grounds.
7. The Complainant has stayed there for about 8 months from 04.06.2005, till vacation, in February 2006. Complainants did not use the premises for lifetime. The OP should have followed the terms and conditions in the strict sense to allow complainant to stay, for life time, after receiving a deposit of Rs.6,50,000/-.
8. Therefore, we are of considered view that the OPs behaviour was arbatory, and the intention of OP appears to grab the hard-earned money of helpless Senior Citizens who believed in them and had kept their entire faith upon the OP, and deposited the huge amount. In our opinion, this is a harsh or unconscionable contract. Unconscionability takes many forms, from fraud to economic duress.
9. Section 16(3) of the Contract Act provides that, where a person, who is in a position to dominate the will of another, enters into a contract with him, and transaction appears, on the face of it or on the evidence adduced to be unconscionable, the burden of proving that such contract was not induced by undue influence, shall lie upon the person in position, to dominate the will of the other.
10. Honble Supreme Court in Central Inland Water Transport Corporation Limited vs. Brojo Nath Ganguly held that an unfair or an unreasonable contract entered between the parties of unequal bargaining power, was void, as unconscionable, under Section 23 of the Contract Act. It has been held that the courts would relieve the weaker party to a contract from unconscionable, oppressive, unfair, unjust and unconstitutional obligations in a standard form contract. The Supreme Court has held that a printed form contract was void, on grounds of coercion, where the parties had unequal bargaining powers.
11. Freedom of contract is of little value when one party has no alternate option between, accepting a set of terms, proposed by the other or doing, without the goods or services offered. Many contracts entered into by public utility undertakings and others, take the form of a set of terms, fixed in advance, by one party and not open to discussion by the other.
12. Gross inequality of bargaining power, together with terms unreasonably favorable to the stronger party, may confirm indications that the transaction involved elements of deception or compulsion, or may show that the weaker party had no meaningful choice, no real alternative, or did not, in fact, assent or appear to assent to the unfair terms.
13. Hence, on the basis of forgoing discussions, we are of considered view that the OP is deficient in service and is liable for unfair trade practices. It has caused harassment and mental agony to the very old Senior Citizens, who deserve, just and fair compensation. We are surprised to note that both the fora below allowed the payment of RS.6,50, 000/- but, ignored awarding the interest on it. Therefore, we dismiss this revision petition by modifying the order of State Commission, as follows:
The OPs are directed to pay Rs.6,50,000/- along with the interest @ 9% pa, from 4/6/2005, the date of Licence Deed, till realisation. Further, the OP is directed to pay Rs.20,000/- as costs to the to the Complainant within 90 days.
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(J. M. MALIK, J.) PRESIDING MEMBER ...
(S. M. KANTIKAR) MEMBER MSS/13