State Consumer Disputes Redressal Commission
Ch.Srinivas vs Mantri Developers Pvt Ltd., And Another on 13 September, 2014
BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.NO.62 OF 2013 AGAINST C.C.NO. 106 OF 2011 DISTRICT FORUM RANGA REDDY DISTRICT Between: Ch. Srinivas, S/o Ch.Balakrishna Age 34 years, rep. by his GPA Holder Ch.Balakrishna S/o Amaraiah R/o 42-971, Jawahar Nagar, Moulaali, Hyderabad Appellant/complainant A N D 1. Mantri Developers Pvt Ltd., rep. by its Head Sales, Mantri House, #41, Vittal Malya Road, Bangalore-001 2. Mantri Developers Pvt Ltd., rep. by its Head Sales, #126, 127, Nanakramguda Gachibowli, Hyderabad-008 Respondents/opposite parties Counsel for the Appellant M/s J.Baladitya Counsel for the Respondents M/s Shireen Sethna Baria QUORUM: SRI THOTA ASHOK KUMAR, HONBLE MEMBER
AND SRI S.BHUJANGA RAO, HONBLE MEMBER SATURDAY THE THIRTEENTH DAY OF SEPTEMBER TWO THOUSAND FOURTEEN Oral Order (As per Sri Thota Ashok Kumar, Honble Member) ***
1. Feeling dissatisfied with the order of the District Forum, the complainant filed the appeal. For convenience sake the parties are arrayed in the complaint are referred to hereunder.
2. The brief facts of the complaint are that on 30.03.2009 the complainant applied for purchase of Flat No.1903 in 19th floor of D-Tower with a built up area of 1198 sft @ `2,810/- per sft in the opposite parties venture and accordingly he joined in Mantri Calestia Scheme floated by the Opposite Parties. The complainant had paid an amount of Rs.3,26,491/- towards advance at the time of booking of the said flat. The Sales Manager of the Opposite Party stated that the common area will be 30% of the total built up area and thereby the carpet area which the complainant actually gets is only 839 sfts. The complainant was furnished only a copy of Agreement and the percentage of common area is not mentioned in it. When the complainant insisted the same to be mentioned in the Agreement, the Opposite Parties did not agree for the same and stated that the common area will be 35% and thereby the complainant is losing the actual carpet area by 70 sft and thereby reducing the living space for him. The building plan is not yet approved by the concerned Municipal Authorities. The Sales Manager working in the office of second Opposite Party has given wrong information at the time of booking the flat and believing his words, the complainant signed the printed application form to purchase the flat by paying the earnest money. After receiving the earnest money, the officers of the opposite parties are deviating from the terms of the application form and brochure supplied to the complainant. The Opposite Parties did not give any valid reasons for the objections raised by the complainant. Having not satisfied with the reply given, the complainant demanded for return of the amount paid by him deducting the amount as per Clause-2 of condition of the application allotment form. As per the said condition, an amount of `10,000/- will be deducted per month from the date of booking till the date of cancellation and the balance amount will be refunded only when the flat is resold to third party which condition is in violation of provisions of Indian Contract Act. The Opposite Parties failed to refund the amount of `3,26,491/- in spite of giving notice by the complainant. The Opposite Parties without furnishing the basic information and without showing the permissions obtained from competent authorities cancelled the allotment by the letter dated 03.01.2010 and directed the complainant to complete the formalities and collect the amount lying in their account. Subsequently, contrary to the said letter, the Opposite Parties addressed a letter dated 25.01.2010 directing the complainant to pay the installment due as on 15.01.2010. The Opposite Parties are not clear in their stand and failed to provide necessary details and documents so as to enable the complainant for signing the Agreement and for fulfilling the formalities. The complainant got issued a legal notice dated 25.01.2010 demanding the Opposite Parties for refund of entire amount with interest and since the opposite parties failed to do so the complainant was constrained to file the consumer complaint.
3. The Opposite Parties resisted the case filed written version and mainly contended that the complainant is not a consumer within the meaning of Sec.2(1)(d) of Consumer Protection Act, 1986 and there is no deficiency of service as alleged in the complaint. The complainant approached their company to purchase Flat No.1903 in 19th floor of D-Tower and paid an amount of `3,26,491/- towards the booking of the said flat. They never promised that the common area will be 30% of the total built up area. They provided a copy of Agreement to the complainant and made several telephonic calls for execution of agreement and addressed a letter dt.18.12.2009 to visit their office on or before 25.12.2009 to complete pending agreement formalities. The complainant neither responded to the calls nor replied to their letter. Consequently, they were constrained to address a termination letter dt.03.01.2010 and the same was received by the complainant on 06.01.2010. The allotment of the complainant was cancelled and he was asked to collect the balance amount as prescribed under the allotment form. Pursuant to the termination letter dt.03.01.2010, the complainant got issued a legal notice dt.25.01.2010 demanding for refund. The said legal notice does not contain the termination letter issued by their company. At the request of the complainant, they sent a letter on 01.02.2010 and requested the complainant to pay the outstanding amount. The complainant opted for cancellation as he was not in a position to pay the outstanding amount. It is false to allege that their representative gave wrong information to the complainant. The rights and obligations of the parties have been enshrined in the contract itself i.e. allotment form. They never deviated from the terms of the application form and brochure supplied to the complainant. Their company had all statutory permissions from GHMC. The complainant is very much aware of all the terms and conditions printed in the allotment form and signed the same at the time of booking the flat. The complainant has unilaterally done material changes contrary to the agreed terms at the time of booking the flat. There are no lapses on their part. As per the terms and conditions of the booking form, their company issued a cheque bearing No.109263 dt.10.09.2010 for a sum of `2,26,491/- drawn on Bank of India in favour of the complainant. They requested the complainant to collect the said cheque and informed the same through email dt.23.11.2010 and a letter dt.20.12.2010 respectively. Their company cannot be made liable for any alleged deficiency of service or unfair trade practice due to the defaults committed by the complainant. Even assuming that there is any lis between the parties, the same would only fall under the Indian Contract and more specifically breach of contract for which the remedy available lies elsewhere but not before this Forum. Therefore, it is prayed to dismiss the complaint with exemplary costs.
4. Both side filed evidence affidavit reiterating their respective contentions. Exs.A1 to A11 and B1 to B12 were marked on behalf of the parties to the proceedings.
5. Having heard both side and considering the material on record the District Forum vide impugned order allowed the complaint directing the opposite parties to refund `2,26,491/- only immediately if the complainant comes forward to receive the amount.
6. Aggrieved by the said order the complainant preferred the appeal contending that the District Forum erred in not drawing the adverse inference against the opposite parties for not filing the approved plans and designs.
The documents filed by the opposite parties are forged and created one. The opposite parties cancelled the allotment and sent the cancellation letter dated 3.1.2010 to the complainant and then only the complainant demanded for total repayment through his legal notice dated 25.01.2010. The opposite parties have struck have stroked down unilaterally the important clause No.3 in the agreement and thus prayed to allow the appeal and modfy the orders suitably.
7. The counsel for the complainant filed his written arguments and heard the counsel for both parties.
8. The point for consideration is whether the order of the District Forum is vitiated either in law or on facts?
9. It is not disputed that the complainant submitted application under ExB1 for purchase of plot bearing number 1903 admeasuring 1198 sft in D-Tower, Mantri Celestia for a basic price of `35,66,380/-
and said to have been paid an amount of `3,26,491/- towards advance. It is the contention of the complainant that there is no agreement between the parties but the opposite party furnished only a copy of the agreement wherein the percentage of common area is not mentioned and when asked the opposite parties stated that the common area will be 35% and they by the complainant is losing the actual carpet area by 70 sq.ft. It is also his contention that the municipal authorities did not approve the plan. On the other hand the contention of the opposite parties that the complainant after payment of the booking amount has failed to pay the balance amount and hence the token amount paid towards the purchase of the apartment shall result into forfeiture as per clause 2 fo the application for booking and allotment form and the dispute pertains to breach of contract and the consequences thereof, as such, the remedy available to the parties lies elsewhere and not before the District Forum.
10. Regarding maintainability of the complaint before the Consumer Forums, the Honble Supreme Court in M/s. Narne Construction P. Ltd. & Others Versus Union of India & Others reported in CDJ 2012 SC 370 held as follows :
6.
when a person applies for allotment of building site or for a flat constructed by development authority and enters into an agreement with the developer or a contractor, the nature of the transaction is covered by the expression service of any description. The housing construction or building activity carried on by a private or statutory body was, therefore, held to be service within the meaning of clause (o) of Section 2(1) of the Act as it stood prior to the inclusion of the expression housing construction in the definition of service by Ordinance No.24 of 1993.
11. The opposite parties further submitted that the complainant paid an amount of `1,78,311/- towards advance amount and later requested vide letter dated 20.04.2009 to adjust an amount of `1,48,180/-
paid by Ms.V.Rajasree towards advance amount for booking the flat no.1306 and that the opposite parties to maintain a cordial relationship had adjusted the entire amount paid by Ms V.Rajasree towards purchase of flat no.1306 without deducting any cancellation charges for the said flat.
12. The complainant got issued notice dated 22.08.2011 claiming refund of the amount on the premise of change in its facing and location of flat from the layout shown to him at the time of allotting the flat and on account of failure of the respondent to complete the construction of the flat within the stipulated period of one year from the date of application form. The District Forum has deducted an amount of Rs.1,00,000/- from out of the amount of `5,00,000/- under forfeiture clause of the application form.
13. The learned counsel for the complainant has contended that the lapse on the part of the opposite parties cannot be made basis to penalize the complainant. The complainant has got issued notice dated 22.08.2011 that there has been discrepancy in the plan shown to him at the time of allotment of the flat and the one shown to him later. The notice reads as under:
My client states that till today no agreement is entered into by your office and only a copy of the agreement is furnished to my client and in the said copy the percentage of common area is not mentioned and when my client insisted for the same to be mentioned in the agreement, your office personal are not agreeing for the same and they have stated that the common area will be 35% and there by my clients are loosing the actual carpet area by 70 sq.fts. and thereby reducing the living space for him. My client also further states that the building plan is not yet approved by the concerned municipal authorities. My client further states that without obtaining the necessary approval from the authorities, your officers have given wide publicity to the plan made by you and believing the same my client and similarly placed persons have entered into agreements for purchase of the same. Now your officers are without intimating to my client are trying to reduce the actual living space and thereby putting him to loss.
My client further states that your Sales Manager has given wrong information at the time of purchase and believing his words, my client signed the printed application form to purchase the flat by paying the earnest money and now when your officers are deviating from the terms of the application form and brochure supplied to him, demanded for return of the amounts paid, deduction of the amounts as per clause 2 of the terms and conditions of the application allotment form. As per the condition therein, an amount of Rs.10,000/- will be deducted per month from the date of booking till the date of cancellation and the balance amount will be refunded only when the flat is re-sold to third party which condition is one sided one and is in violation of provisions of Indian Contract Act.
14. In the reply of the opposite parties dated 25.03.2010 reads as follows:
In reply to para 2 of your notice, my client states it is not true that your client was only provided with the copy of the agreement whereas the fact is that subsequent to handing over of the copy of the agreement your client was called upon for execution of agreements by way of several telephonic calls and letters. IN spite of which your client neither responded to the calls nor replied to the letters addressed to him. My client vide letter dated 18.12.2009 has called upon your client to visit their office on or before 25.12.2009 to complete pending agreement formalities and also communicated to him that it was the final reminder, even to which there was no positive reply from your client.
It is further stated by my client that, as there was no response from your client in spite of repeated requests/reminder and failing to perform his formalities of signing the agreements my client having no other option has sent the termination letter dated 03.01.2010 intimating the cancellation of his allotted flat and called upon him to collect the amount paid to my client at the time of booking the flat by signing the application for allotment. My client states that to cover up the non performance of his obligations of signing the agreements and to evade the payment of further instalments, your client is resorting to all such adverse allegations of reduction of carpet area, non-availability of approved building plans. My client denies the alleged reduction of the carpet area without intimation, non approval of building plans by the concerned municipal authorities, putting your client to loss by trying to reduce the actual living space, for which your client is put to strict proof of all such allegations.
In reply to para 3 of your notice my client denies that their representative has given wrong information to your client and your client believing the same has signed the printed application form to purchase the flat by paying the earnest money and my client after the receipt of the earnest money is deviating from the terms of the application form and broacher supplied to them, for which your client is put to strict proof of all such allegations. My client states that they have been executing the agreements with all the other customers on the agreed terms and conditions of the application for allotment and there is no need for my client to give wrong information to your client for booking the flat. Your client with an intension to avoid the payment is making unnecessary and baseless allegations on my client.
15. From the above it is clear that nowhere the opposite parties admitted that their representative has given information regarding booking of the flat and also stated that in spite of repeated requests and reminders to perform his formalities of signing the agreements the opposite parites has sent the termination letter dated 3.1.2010 intimating the cancellation of allotted flat. The complainant also clearly mentioned in the complaint I that a copy of agreement is furnished him and the percentage of common area is not mentioned there in. The complainant admits that he signed on the allotment form dated.31.03.2009. Some terms and conditions are printed on the application for allotment form prescribed by the Opposite Parties. It is pertinent to note that the complainant himself stated Clause No.2 of Ex.B1 allotment form in his complaint. The terms of the application form are reproduced herein below:
1.
I/We intending Allotee(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.
2. 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.
3. I/We know that this application is tentative and shall only by finalized on your acceptance of the same, on execution of the Agreement of Sale within 30 days from this date, else this booking shall be treated as cancelled.
4. Plans subject to approval
16. In the present case, the complainant seeks the relief of refunding the amount of `3,26,491/- as per his application for cancellation dt.11.03.2010. The Opposite Parties relied upon decision before the District Forum in Sahara India Commercial Corporation Vs. C.Madhu Babu 2011 (II) CPJ Page 3, where in the Honble National Commission held thus:
When there is a written argument between the parties, it is well settled that the consumer Fora have to consider the relief in the light of such agreement and it is not open to them to add or subtract any of the conditions or words thereof while doing so. In the light of this proposition, which has been upheld through our judgment in R.P.No.497 of 2006 (supra), there is no doubt that the Fora below exceeded their jurisdiction and committed an error in directing the OP to refund the amount of Rs.28,050/- which is contrary to provisions of Clause 8 of the agreement. Clause 8 also provides that interest on refunds is not permissible. In the circumstances, the impugned order cannot be sustained in the eye of law. The same, therefore, has to be set aside.
17. Clause No.3 of Ex.B1 allotment form shows that the applicant has to execute an agreement for sale within 30 days from the date of application for allotment. Both parties are blaming each other for striking off a portion of Clause No.3. Anyhow Clause No.2 of application form enables the complainant to cancel the booking. Both parties are bound by the terms and conditions of Ex.B1 form until another agreement is entered into with any variation in the terms and conditions. The Opposite Parties addressed letter dated 13.12.2009 to show that they issued several reminders to the complainant to complete the pending agreement formalities. They also issued reply notice to the notice dated 25.01.2010 issued by the complainant. Therefore, the aspect of refund is governed by the second clause of application form. Hence, the said clause cannot be treated as unfair trade practice as defined U/Sec.2(1)(r) of C.P.Act. Moreover, the Opposite Parties are willing to refund an amount of `2,26,491/- and intimated the same to the complainant by its letter dated 20.12.2010 after deducting the remaining amount as per Clause-2 of application form. It is not the case of the complainant that the Opposite Parties resold the said flat to some other purchaser. It is clearly mentioned in the letter dated 27.05.2010 of the Opposite Parties that some changes are made by the complainant in the application for cancellation and therefore directed the complainant to complete the process of cancellation properly or else to pay the future instalments by signing the agreement to continue the transaction. The complainant is not willing to continue the transaction after executing the required agreement and he wants to take back the amount paid by him. In view of the circumstances discussed above, the complainant is not entitled for the refund of the entire amount of `3,26,491/- as prayed for. The Opposite Parties are liable to refund the amount of `2,26,491/- only. The District Forum has rightly concluded that the complainant is entitled to `2,26,491/-. The appeal is devoid of merits and is liable to be dismissed.
18. In the result the appeal is dismissed confirming the order of the District Forum. There shall be no order as to costs. Time for compliance four weeks.
MEMBER MEMBER Dt.13.09.2014 కె.ఎం.కె.*