ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Party (herein referred to as OP) under section 35 of the Consumer Protection Act 2019 for the deficiency in service in not handing over the possession of the flat and for refund of the amount of Rs.2,73,000/- paid to OP on 18.07.2019 along with interest at 18% per annum on the said amount and further Rs.1,00,000/- as compensation for causing him mental agony and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; the complainant on going through the advertisement made by the OP in a newspaper that they are selling 2BHK houses for just Rs.23.05 lakhs in the project “DIL CHAHATHA HAI DOBARA II” agreed to purchase the same after making enquiries with OP. The sales manager of OP one Manikanta and Jai informed that if they book the flat on the same day itself, he would get Rs.50,000/- as discount out of the sale consideration and further complaint is entitle for interest discount of Rs.2,50,000/- under PMAY scheme. On 18.07.2019 by using his credit card paid Rs.50,000/- as advance, for which, OP allotted Flat bearing No.9203 in the above project.  Afterwards, the complainant used to get call from the OP to pay 10% of the total consideration and he paid Rs.2,23,000/- on 16.08.2019 by way of NEFT.   It was informed to him at the time of booking by the Sales Manager, Manikanta and Jai, that, in case the complainant is not able to arrange funds due to the loan issue, not eligible for PMAY scheme, or not satisfied with the projects legal status, and if for any other financial conditions, the complainant can inform the management of Sri Ram Properties and can cancel the unit booked before entering into an agreement of sale, and that he would refund the entire booking amount without any cancellation fee.  With good faith he paid the said amount of Rs.2,73,000/- to OP.   Due to the pandemic situation, he could not arrange the funds to pay the balance sale consideration and the same was informed to the OP and requested  for refund of the advance amount paid to the OP. 

3.     He also sent a requisition letter cancelling the booking and requesting to refund the amount.  Since OPs did not refund the amount he had to issue a legal notice demanding the refund of the amount whereas on 15.09.2020 OP informed that they are not refunding the amount. The staff of the office did not allow him to meet the higher authorities.  Further the agreement is one sided and it amounts to unfair trade practice as per the judgment rendered by the Hon’ble Supreme Court of India. Op did not consider their cancellation request and refund of the amount which has caused him mental agony, loss of peace and financial loss. The booking form is to be declared as to be unfair trade practice under restrictive trade practice. The agreement is one sided and cannot be considered as a fair agreement.  OP have been harassing the complainant in not refunding the amount and hence prayed the commission to allow the complaint.

4.     Upon service of notice, OP-1 to 4 appeared before this commission through their advocate filed the version signed OP-1 contending that, the averments and allegations made in the complaint are false, baseless and without any substance to make unlawful profits by filing this complaint.  The matter has to be adjudicated by the Civil Court as in a summary proceedings, the issues cannot be decided. The application for allotment form/booking form was duly signed by the complainant on 21.07.2019 with M/s Sri Prop Living Space Pvt. Ltd to purchase one Unit in the said project.  Hence complainant never engaged the services of oP-1 and their grievance is only against the said Sri Prop. Living Space Pvt. Ltd and hence Ops are not relevant and necessary parties and hence the complaint is bad for non-joinder and mis-joinder of parties.

5.     Complainant is not a consumer and he has failed to make out the deficiency in service or defect in the goods. OP-1 is not a product seller or a service provider and they are never part of the agreement or transaction for the purchase and delivery of the goods or services.  The complaint is also bad for misjoinder of OP-2 and 3 as the said parties are the directors of OP-1 and there is no averments made against them. It is contended that OP-1 is doing the business in the name of Sri Ram Properties Ltd which is regd. Company engaged in real estate sector in developing and construction of state of Art affordable homes. 

6.     It is stated by OP-1 that the complainant approached oP-1 to purchase an apartment  in “DIL CHAHATHA HAI DOBARA II”, project a residential apartment project and it was a ongoing project. Complainant also visited the site office and after a detailed enquiry about the project its completion and the cost, signed the booking form on 21.07.2019 and paid Rs.2,73,000/- for booking the apartment. 

7.     As per the terms of the booking form, the same was received on behalf of M/s Sri Prop Living space Pvt. Ltd and the allotment was also made by it, stating that the parties to enter agreement of sale afterwards.  No employees are permitted to promise or guarantee anything against the policies of OP-1 company and against the terms and conditions mentioned in the booking form. They assured to provide discount of Rs.50,000/- out of the sale consideration  if they book the flat on the said day itself.

8.     As per clause 7 of the booking form, an amount of 9.9% of the total consideration value is required to be paid by the applicant to the company as booking amount. On paying of the booking amount, allotment or finalization of residential apartment / unit / villa / row houses in the name of the applicant would be made. Applicant shall be eligible to execute the definitive agreement.  The amount paid by the complainant was towards booking of the apartment and not for final delivery. Entire amount paid as on the cancellation date would be forfeited post unit selection but before agreement as per clause 20 of the Booking form. Hence the amount paid by the complainant at the time of booking is considered as cancellation charges towards liquidated damages that the developer had incurred and the booking is made subject to realization of the booking amount which is non-refundable as on the date of booking / unit selection.  Denying all the other allegations made in each and every para of the complaint and further denying that they have agreed to refund the entire booking amount before entering into agreement prayed the Commission to dismiss the complaint.

9.     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?

10.   Our answers to the above points are:-

POINT NO.1 :   IN THE AFFIRMATIVE

POINT NO.2 :   PARTLY IN THE AFFIRMATIVE

                                For the following.

REASONS

POINT No.1:-

11.   On perusing the complaint, version, documents, evidence filed by  both the parties, it becomes clear that, the complainant booked the flat with Op and paid Rs.2,73,000/- in two installments i.e. Rs.50,000/- on 18.07.2019 through debit card and Rs. 2,23,000/- on 16.08.2019 by way of NEFT. The same has been acknowledged by issuing the receipt in the Sri Prop Living Space Pvt. Ltd. In the demand notice issued to the complainant dated 24.02.2020 Sri Ram Properties with Logo has been mentioned.  Even in the reply to the legal notice which is issued by Sri Prop. Living Space Pvt. Ltd dated 15.09.2020, the Logo with Sri ram properties is mentioned which is clear that Sri Ram properties and Sri Prop. Living Space Pvt. Ltd are  doing the same business mutually with different name in order to  have business benefits.

12.   OP has taken up the contention that this complaint cannot be decided in a summary manner and the same has been to be adjudicated in the Civil Court. We are of the opinion that, there is no legal and complicated issues involved to decide in this case, as it is clear from the averments made by both the parties that the complainant paid the booking amount of Rs.2,73,000/- at the time of booking in two installments whereas OP did not refund the said amount. As held by the Hon’ble Supreme Court of India in various cases, there exists the consumer-service provider relationship between the parties and hence complaint is maintainable before the consumer commissions.

13.   It is the  contention of the complainant that the person involved in the sale of the flats namely Manikanta and Jai informed the complainant that in case the complainant not possible to arrange the loan or raise the loan or any legal issues regarding the property, they would refund the amount paid towards booking in full, whereas the tenor of the version is clear that after the complainant booking the flat by affixing his signature in the booking form, as per the clauses, complainant is not entitle to get any refund out of the amount paid. 

14.   According to the complainant this is a one sided contract which the Hon’ble Supreme Court has time and again said that the complainant has nothing to say except to put his signature on the dotted lines agreeing to the contents of the said documents even though he had not consented and has no opportunity to include his conditions. When the  booking form duly signed by the complainant and the terms and conditions mentioned therein are taken into consideration it is a clear case of one side agreement/one sided conditions helping to the OP only without giving any room to the complainant to say anything. 

15.   Though it is contended that no refund is permissible under the conditions laid down under booking form without providing any service and retaining the entire amount would amounts unfair trade practice as held in many cases by Hon’ble Supreme Court of India as well as NCDRC.

16.   At the same time it is to be noted here that the OP is running the business in real estate by developing the land, constructing the buildings and selling the flats. It has invested lot of money in the real estate and further has to maintain the office, maintain people/workers to cater to the needs of the persons who approach for the purchase of the property. Under the circumstances we are of the opinion retaining the entire amount paid by the complainant is amounts to unfair trade practice and hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT No.2:

17.   As pointed above, complainant is not entitle for complete refund of the amount. Some portion of the same has to be deducted by the OP for the administrative expenses and maintenance. We are of the view that by a sum of 25% out of the amount paid i.e.Rs.2,73,000/- if OPs are order to retain towards incurring expenses of administrative and maintenance charges and to order OP to refund the remaining amount to the complainant would be just and proper under the circumstances.  Further act of OP in not refunding the amount put the complainant into mental agony and hardship for which we direct OP 1 and 4 to pay a sum of Rs.25,000/- towards damages and Rs.15,000/- towards litigation expenses besides ordering to pay 12% per annum on the amount to be paid by the OP 1 and 4 to the complainant after deducting 25% out of the Rs.2,73,000/- which it received as booking advance. With this we answer PONT NO.2 PARTLY IN THE AFFIRMATIVE. Complaint against OP-2 and 3 is hereby dismissed as they are only the employees/directors of OP-1 and 4 and pass the following:

ORDER

1. The Complaint is partly allowed with cost.
2. OP No.1 and 4 are jointly and severally directed to pay a sum of Rs.2,04,750/- (Rs.2,73,000 - 68,250 i.e. deducting 25% received as booking advance) to the complainant along with interest at the rate of 12% per annum from the date of payment of the amount i.e. on   till payment of the entire amount.
3. OP No.1 and 4 are further directed to pay a sum of Rs.25,000/- towards damages for causing mental agony and strain and further Rs.15,000/- towards litigation expenses.
4. Complaint against OP.2 and 3 are dismissed.
5. OP No.1 and 4 are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report on this Commission within 15 days thereafter.
6. 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 16^th day of SEPTEMBER 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: Copy of the Bank Statement.

Ex P2: Copy of the Statement of account reflecting the account paid on 16.08.2019

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

RW-1: Sri Naveen Kumar – Manage of OP1

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Authorization letter.

Ex R2: Copy of the Booking form and allotment letter .

MEMBER         MEMBER       PRESIDENT

RAK*