ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under section 35 of the Consumer Protection Act 2019 for the deficiency in service in not providing the legal documents in respect of the property that OP wanted to sell to the complainant as per the agreement of sale and for refund of Rs.5,64,902/- being the advance sale consideration and Rs.2,84,150/- being the amount paid towards stamp duty in order to get the sale agreement registered along with interest at 21% per annum on the said amount and further a sum of Rs.5,00,000/- towards liquidated damages and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; OPs are carrying a mega real estate project by name “Adora De Goa 10-Balinese Residences” at Goa constructing the flat/apartment. Complainant was interested in buying an apartment bearing No.C401 located 4^th floor, in block V of Row No.5 measuring 47.74 sq meter of carpet area and Balcony 5.55 sq. meters with a covered car parking space for a sum of Rs.50,43,768/-. The even was launched on 12.02.2019 wherein OP booked hotel for the complainant in Ibis Styles Goa and also requested to bring the KYC documents and due to the colourful words, broachers and advertisements, OP made the complainant to book an apartment in the said event by paying Rs.1,88,118/- and a cheque for Rs.3,00,000/- and another cheque for Rs.2,84,150/- towards stamp duty to get the agreement of sale registered. 

3.     Though complainant requested OPs to inform before presenting the cheque of Rs.3,00,000/-, without intimating the same OP presented to the cheque to the bank which was dishonoured which created black mark on his bank transaction. Afterwards, he got the agreement of sale registered on 24.04.2019, wherein he was informed that if “you fail to do so i.e. getting the agreement of sale registered, your right over the said apartment unit stands extinguished, the allotment stands cancelled with applicable forfeiture of booking amount along with applicable GST and further the company is at liberty to deal with the apartment in any manner it choses without reference to the complainant.  On 16.01.2020 the said agreement of sale was registered. Immediately after the same, OP demanded for further payment of the amount.  On 20.01.2020 complainant sought the legal issues pertaining to the project and to provide the said documents.  At that time, OP intimated that they have sent registered agreement of sale to the address of the complainant along with legal documents CD through courier.  On perusing the agreement of sale it is one sided clause drafted by the OP and no opportunity was given to him to look into the same.  He had a serious objection to Clause W of Page 6 relating to the legality of the property and inspection of the same.  Instead of providing valid legal clarification in respect of points raised by the complainant OP sent demand letter for payment of the balance of sale consideration. 

4.     As per the supreme court judgment, one side clauses in apartment buyers agreement constitute unfair trade practice which do not bind the purchaser of the flat. Hence the said agreement of sale and its terms and conditions cannot bind him.  Inspite of his email on 14.10.2020 also, OP did not provide the legal clarification which it has sought. Even he did not share the copy of the agreement of sale before its registration and legal clarification. Complainant decided to cancel the agreement of sale entered into on 16.01.2020 with the OP and demanded to return the amount received as advance sale consideration along with the stamp duty paid for the same. He had to issue a legal notice on 04.11.2020 demanding for the refund. Inspite of it, OP did not contact the complainant and instead just sent a whatsapp message regarding the discussion about the cancellation and return of advance amount but did not proceed. 

5.     Instead of refunding the amount, OP issued a notice on 11.06.2021 stating that they have terminated the agreement of sale and informed that they will deduct various charges. Hence finding no alternate he has to file this complaint and prayed the commission to allow the same.

6.     Upon the service of notice, OP 1 and 3 appeared before the commission through their advocate, and filed version. OP-2 served was not present.

7.     In the version filed by OPs, it is contended that the complaint is not maintainable as the same is filed on false, baseless, unreasonable mala fide grounds just to make unlawful gain. OP-3 is a registered company under Companies Act 1956.  It is in the business of real estate in the country, having a valuable reputation in the real estate field.

8.     The complainant himself approached OP to purchase flat C401 row -5 block 5 in the project named, Provident Adora D Goa–X. In pursuance of the same, complainant submitted expression of interest document on 17.11.2018 and booking application on 28.02.2019 and also paid a sum of Rs.188,018 as booking advance,  cheque for Rs.3 lakhs towards 9% of the advance amount with regard to the agreement of sale and Rs.2,84,150/- by way of cheque to meet the expenses of stamp duty and registration. Immediately after paying the amount complainant was requested to get the agreement of sale executed and registered in his favour and also explained the process of executing the agreement of sale and pursuant to obtaining the legal advise with respect to the sale agreement and knowing the rights and liabilities of the parties in the agreement of sale. Complainant got the agreement of sale registered in his favour on 16.01.2020. 

9.     After the registration of the agreement, the complainant raised several queries with reference to the agreement of sale and the same was satisfactorily explained by the representatives of OP-1. Having read and understood of the terms and conditions of the agreement and also Clause No.9.3 regarding refund of the advance amount paid, complainant affixed signature to the agreement of sale.  As per the refund policy 10% of the amount received from the purchaser shall be forfeited from the final amount to be refunded to the complainant/purchaser.  Even prior to booking of the property complainant was informed regarding the cancellation charges, administrative charges and regarding the forfeiture of the full booking amount.  On the request of the complainant only, the agreement was cancelled and it initiated the refund process intimating that the stamp duty, registration fee, GST and interest on delayed payments to be deducted and the rest of the amount payable. Accordingly out of the amount of Rs.8,49,054/- received advance amount received is Rs.5,04,377/- 10% of the total amount is Rs.56,490/- GST Rs.1,21,050/- stamp duty, processing fee and registration fee Rs.2,84,150/- and interest on the delayed payment Rs.1,84,685/ and the amount refundable or payable (-) Rs.3,01,698/-.  Hence no additional claim lies with the OPs regarding payment of the refund of the amount.  Complainant has not come with the clean hands. There is no cause of action to file the complaint and by denying all the allegations made, prayed the commission to dismiss the complaint.

10.   In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

11.   Our answers to the above points are:-

POINT NO.1:    IN THE NEGATIVE

POINT NO.2:    PARTLY IN THE AFFIRMATIVE

                        For the following.

REASONS

POINT No.1:-

12.   On perusing the complaint, version, documents, evidence filed by the both the parties, it becomes cleared that, Complainant was interested in buying an apartment bearing No.C401 located 4^th floor, in block V of Row No.5 measuring 47.74 sq meter of carpet area and Balcony 5.55 sq. meters with a covered car parking space for a sum of Rs.50,43,768/- and paid Rs.1,88,118/- at the time of booking and Rs.3,00,000/- towards 9% towards sale agreement and Rs.2,84,150/- plus stamp duty and other charges. We have gone through the entire documents produced by the respective parties.

13.   It is not in dispute that OP accepted the cancellation of the booking, OP has contended that as per the clause mentioned in the agreement, they are refund the amount less 10% of all the amount received as forfeited charges, and also the stamp duty registration fee and GST. They have also calculated interest on the delayed payment. It is not made clear as to what payment to be made when the complainant has himself cancelled the agreement of sale and when such being the case no amount due to be paid to the OP.  Hence in view of the unequivocal admission of the OP regarding the refund of the amount, we are of the opinion that the interest claimed i.e. Rs.1,84,685/- is in respect of refunding of the amount is unrighteous. In view of the OP accepting the cancellation of the sale agreement, we hereby direct OP to pay a sum of Rs.3,87,364/- out of Rs.8,49,054/- i.e. Rs.56,490, being deduction of 10% from the advance amount,  Rs.1,21,050/- paid towards GST, plus Rs.2,84,150/- being the stamp duty and registration charges = 4,61,690/- received by them from the complainant and answer POINT NO.1 IN THE NEGATIVE as no deficiency is alleged and proved by the complainant in respect of services provided by OPs whereas as contended by the OPs themselves in respect of the refund policy, we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1.    The complaint is hereby allowed in part.
2.    OPs are jointly and severally directed to pay Rs.3,87,364/- (after deducting Rs.4,61,690/- from Rs.8,49,054)  to the complainant within 30 days from the date of receipt of this order, failing which OPs to pay interest @ 10% per annum on the said amount till paying the entire amount.

3.   Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 05^th day of JULY 2022)

MEMBER                 MEMBER                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1 to P6: Copies of the email correspondences

Ex P7: Copy of the Agreement of sale

Ex. P8: Copy of the Legal notice.

Ex P9: Postal receipts.

Ex P10: Postal acknowledgement.

Ex P11: Email notice dtd:11.06.2021.

Ex P12: Certified copy of the account statement.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri B Praveen Kumar Authorized representative of OP-1.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Booking application.

Ex R2: Copy of the details regarding the payment.

Ex R3: Copy of the Agreement to sell.

Ex R4: Copy of the account statement.

Ex R5: Email correspondences

Ex R6: Copy of the authorization letter.

MEMBER                 MEMBER                 PRESIDENT

RAK*