BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:
HYDERABAD.
C.C.No.65 OF 2010
Between:
Mr.Kenneth Richard Whittenbury
S/o late Mr.Richard William Whittenbury
aged about 67 years, R/o Bloc M-56
Ved Vihar AWHO Colony
Secunderabad-001 Complainant
AND
1. M/s Modi Builders & Realtors Pvt Ltd.,
( A company registered under the Companies Act, 1956)
Rep. by its Managing Director, Mr.Sourabh Modi
5-4-187/3 & 4, 3rd Floor, Soham Mansion, M.G.Road
Secunderabad-003
2. Mr.Sourabh Modi
Aged: Major
Occ: Managing Director
Modi Builders & Realtors Pvt Ltd.
3. Sri R.Ashok Swaminathan
Aged : Major, Occ: Director
Modi Builders & Realtors Pvt Ltd.
Opposite parties No.2 and 3
are R/o 5-4-187/3 & 4, 3rd floor
Soham Mansion, M.G.Road,
Secunderabad-003
Opposite parties
Counsel for the complainant Sri K.Rajendran
Counsel for the opposite parties Sri C.Balagopal
QUORUM: SRI R.LAKSHMI NARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
WEDNESDAY THE FOURTEENTH DAY OF DECEMBER
TWO THOUSAND ELEVEN
Oral Order:(Per Sri R.Lakshmi Narasimha Rao, Hon’ble Member.)
1. The complaint is filed seeking direction to the opposite party company to pay a sum of `30,84,000/- towards refund of the amount paid by the complainant, `1,60,000/- towards interest for the period from 17.3.2010 to 13.6.2010 and interest @ 18% per annum from 1.7.2010 as also `1,00,000/- towards compensation for mental agony and hardship.
2. The averments of the complaint are that the complainant paid an amount of `25,000/- on 14.3.2010 towards booking amount for purchase of house bearing no.17 in “Harmony Homes Project” at Sy.No.619 and 639 Lalgadi Malakpet Village, Shamirpet Mandal R.R.District and he had paid balance amount of `30,59,000/-on 17.3.2010 from out of the loan amount raised against fixed deposit receipts. The complainant approached his banker seeking loan against the house under sale as he was in need of funds to meet his son’s treatment abroad. The banker refused to sanction loan on account of the advanced age of the complainant besides the failure of the opposite party to furnish him the link documents. The complainant came to know that the house under sale is about 30 kms from paradise circle contrary to the location stated by the opposite parties as 15 to 17 kms from Paradise Circle. The house has not been completed of the construction and the complainant requested the opposite parties on 25.3.2010 to return the amount and that he was not willing to purchase the house. The opposite parties expressed their willingness to return the money but after a year whereon the complainant has got issued notice through his advocate on 8.4.2010 for which the opposite parties caused a reply dated 30.4.2010.
3. The opposite parties no.1 to 3 have filed common written statement stating that the opposite party no.1 company had developed many ventures and got good reputation in the market. The complainant in response to the advertisement given out by the opposite party no.1 company approached them and the official of the opposite party no.1 company arranged a site visit for the complainant and the complainant after satisfying himself regarding the project selected the house no.17 (model house) which was almost completed. The opposite parties had not promised to arrange reimbursement of the money by arranging loan from the bank. The complainant made a lumpsum payment whereby the opposite parties reduced the price of the house by `8 lakh and the final price of the house was agreed upon as `39,59,000/- exclusive of sales tax, VAT, stamp duty and registration charges. The complainant arranged for the payment within three days and he wanted certain modification to be carried out in the model house which the first opposite party agreed to carry out. The modification sought for is such as black granite slab, bathroom tiles etc. The house was ready for occupation within the stipulated time. There was a concluded contract between the complainant and the opposite parties.
4. The complainant requested for refund of the amount paid by him and the opposite parties on compassionate grounds agreed for an investor’s offer under which it was agreed to pay `30,000/- per month for a period of one year and if the complainant is still willing to take back the amount paid by him the opposite parties would do so and if the complainant wants to retain the house he has to pay `3,60,000/- paid by the opposite parties over a period of one year. The opposite parties incurred huge cost in modifying the house to the complainant’s taste. There is no consumer dispute between the parties and the opposite parties are ready to hand over the possession of the house to the complainant. The house is completed in all respects but for minor works. There is no deficiency in service on the part of the opposite parties hence prayed for dismissal of the complaint.
5. The complainant has filed his affidavit and the documents Exs.A1 to A5. Ex.A1 is the copy of receipt dated 14.3.2010 for `25,000/-. Ex.A2 is the copy of receipt dated 17.3.2010 for `30,59,000/-. Ex.A3 is the Copy of provisional Booking Form dt.14.3.2010 Ex.A4 is the copy of legal notice dated 8.4.2010 issued by the Complainant. Ex.A5 is the copy of reply notice dated 30.4.2010.
6. The Managing Director of the opposite party no.1 company Sourabh Modi has filed his affidavit and the documents Exs.B1 to B5. Ex.B1 is the copy of provisional booing form dated 14.3.2010. Ex.B2 is the copy of modifications list dated 17.3.2010. Ex.B3 is the copy of notice dated 8.4.2010 of the complainant. Ex.B4 is the copy of reply notice dated 30.4.2010. Ex.B5 is the photographs with negatives.
7. The points for consideration are:
1) Whether the complainant is entitled to the refund of the amount?
2) To what relief?
8. POINT NO.1: The complainant opting for purchase of house bearing No.17 Model House in “Harmony Homes Project” at Sy.No.619 and 639 Lalgadi Malakpet Village, Shamirpet Mandal R.R.District and he had paid balance amount of `30,59,000/-on 17.3.2010 is not disputed. The complainant states that the house is situated at distance of 30 kms from Paradise Circle and the opposite parties played unfair trade practice on him by misrepresenting the fact that the house is located at 15 kms away from Paradise Circle. The opposite parties contend that after the complainant had come up with a request for purchase of the house they had arranged for a site visit and the complainant after satisfying himself with the location opted for purchase of the house. We do not see any reason to disbelieve the version of the opposite party company as the objection in regard to the location of the house is made for the first time by the complainant in the notice got issued by him to the opposite parties.
9. The complainant has requested for refund of the amount of `30,84,000/- citing ill health and treatment of his son therefor abroad as misrepresentation by the opposite parties on the premise of the offer for arrangement of loan by the banks. In the same breath the complainant contends that on account of his advancing age, his banker had rejected his request for grant of loan. When such rejection comes from his banker, the complainant cannot contend that the opposite parties had played unfair trade practice by offering the complainant the sanction of loan from the banks.
10. After payment of the purchase price of the house, the complainant had opted for modifications. The option by the complainant for modifications of the house is reflected in the modifications estimate dated 17.3.2010 as also the reply notice issued on behalf of the opposite parties. Therefore, it cannot be said that the complainant had not opted for modifications of the house in question.
11. The complainant had requested the opposite paties to refund the amount paid by him citing the reason that he had to meet the expenditure for treatment of his son abroad and the refusal of his banker to sanction loan on account of his advancing age. The opposite parties agreed to refund the amount, after a year and for the period of 12 months they had proposed to pay the complainant a sum of `30,000/- per month. The opposite parties contend that they had agreed to refund the amount as an investor’s offer as also on humanitarian grounds. The fact remains that the opposite parties agreed to refund the amount paid by the complainant. At this juncture it has to be seen that whether the opposite parties had agreed to refund the amount on request of the complainant or due to non completion of the construction of the house as it has its bearing on the plea of the opposite party no.1 company that the construction of the house was made long ago. The opposite parties had filed photographs of the allotted house which show that the construction of the house has been almost completed. The complainant objected to the photographs stating that they were not furnished to him prior to the filing of the complaint nor had been sent to him along with the reply notice. The opposite parties had stated that they had agreed to refund the amount on humanitarian grounds and on the principle of “investor’s offer”. Admittedly, the photographs of the house were not furnished to the complainant prior to filing of the complaint though the complainant got issued notice requesting the opposite parties for refund of the amount.
12. The opposite parties in their reply to the notice of the complainant, had not mentioned the discount of `8,00,500/- said to have been extended to the complainant on his paying the lump sum amount. The discount theory is introduced for the first time in the written statement and to suit the plea an endorsement is incorporated in the copy of the provisional booking form, the original of which does not bear the endorsement or the details of the discount. The denial of the refund of the amount on the basis of the concluded contract can not be accepted. If the construction is completed by the time of the opposite parties’ “investor’s offer”, the opposite parties can as well extend the same benefit to the complainant at a subsequent stage.
13. The modifications stated to have been proposed by the complainant are said to have been carried out do not find support the reply dated 30-04-2010 of the opposite parties as it is stated in the reply “Thereafter your client had suggested certain modifications to the Model house, which our client agreed to carry out”. Therefore, even if the modifications were carried out by the opposite parties after the complainant demanded for refund of the amount, they had done it at their risk which cannot be attributed to the complainant.
14. The question of concluded contract arises when the opposite parties had completed the construction of the allotted house in terms of the booking form which provide for the parties to enter into a sale agreement and in terms of the agreement of sale. In the letter dated 7-04-2010 , the opposite party no.1 has stated that an agreement of sale was entered into between the parties on 7-04-2010. The opposite party had not filed the agreement of sale nor is it mentioned about it in the reply notice or written version of the opposite parties. The contract is said to be not concluded in that aspect where the opposite party decides to cancel the provisional booking and refund the amount less cancellation charges. The opposite parties had decided to cancel the allotment, of course at the request of the complainant, and expressed their intention to refund the amount to the complainant without deducting cancellation charges on condition that the amount would be refunded only after a year from the date of request made by the complainant. In either case, the contract is not concluded.
15. The opposite parties did not keep their promise to pay the amount of `30,000/- every month commencing the payment from the month of May, 2010. The opposite party no.1 in its letter dated 7-04-2010 has promised the complainant that it would be paying him a sum of `30,000/- every month for a period of 12 months commencing from the month of May,2010. The amount of `30,00,000/- was promised to be paid to the complainant in the month of June,2011 and in case, the complainant opts to retain the house, he is required to repay the amount of `3,60,000/-to the opposite parties. The opposite parties agreed to repurchase the house for `30,00,000/-. Not keeping their promise to pay the monthly sum of Rs.30,000/- on the premise that the complainant had rejected the offer constitutes deficiency in service on their part and the opposite parties are liable to pay the amount of `30,00,000/- with interest @ 9%p.a. from the date of filing of the complaint.
16. In the result, the complaint is allowed directing the opposite parties no.1 to 3 to pay an amount of `30,00,000/- with interest @ 9%p.a. from the date of filing of the complaint till payment together with costs of `5,000/-. Time for compliance four weeks.
MEMBER
MEMBER
Dt.14.12.2011
KMK*
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
NIL
EXHIBITS MARKED
For the complainant
Ex.A1 Copy of receipt dated 14.3.2010 for Rs.25,000/-
Ex.A2 Copy of receipt dated 17.3.2010 for Rs.30,59,000/-
Ex.A3 Copy of provisional Booking Form dt.14.3.2010
Ex.A4 Copy of legal notice dated 8.4.2010 issued by the
Complainant.
Ex.A5 Copy of reply notice dated 30.4.2010
For the opposite parties
Ex.B1 Copy of provisional Booking Form dt.14.3.2010
Ex.B2 Copy of modifications - Estimate/Bill dt.17.3.2010
Ex.B3 Copy of legal notice dated 8.4.2010 issued by the
Complainant
Ex.B4 Copy of reply notice dated 30.4.2010
Ex.B5 Photographs with negatives
MEMBER
MEMBER
