STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA `
AT HYDERABAD
FA 984 of 2013
Against
CC 335 of 2012, District Forum I, Hyderabad
Between :
Mrs. Kirti Tripathy
W/o Lt. Col. Naveen Tripathi,
Aged about 38 years, Occ Retired Army Officer’
House o. 3A, Bajrang Nagar colony
Risala Bazar Post Bollaram, Secunderabad, A.P. … Appellant/complainant
And
01. The Telangana State Housing Board,
Gruha Kalpa,Mukarram Jahi road, Hyderabad – 500 001
Rep. by its Vice Chairman and Housing Commissioner.
02. The Telangana State Housing Board,
O/o Executive Engineer ( Housing ),
Western Division,
APHB Commercial complex, 4th floor,
Opp. Shivaparvathi Theatre, KPHB colony
Kukatpally, Hyderabad – 500 072 rep by its
The Executive Engineer ( Housing )
03. The Telangana State Housing Board
O/o Executive Engineer ( Housing), Western Division,
APHB Commercial complex, 4th floor
Opp. Shivaparvathi Theatre, KPHB Colony
Kukatpally, Hyderabad – 500 072 rep. by its
The Public Information Officer … Respondents/opposite partie
Counsel for the Appellant : M/s. Sri K. Veerabhadra Rao
Counsel for the Respondents : Sri D. Vijayender Rao
Coram :
Hon’ble Sri Justice B.N. Rao Nalla … President
And
Sri Patil Vithal Rao .. Member
Thursday, the Twenty Second Day of June
Two Thousand Seventeen
Oral order : ( Per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President )
*****
- This is an appeal filed Under Section 15 of the Consumer Protection Act, 1986 by the appellant/`complainant aggrieved by the orders dated 24.07.2013 made in CC 335 of 2012 passed by the District Forum-1, Hyderabad.
- For the sake of convenience, the parties are described as arrayed in the complaint before the Forum below.
- The case of the complainant, in brief, is that she opted 1400 Sqf HIG Flat ( 3bed rooms, Deluxe- Cellar + Stilt + 9 floors) at Phase –XV Venture III at Kukatpally under self-financing scheme at a tentative cost of Rs.30,80,000/- which is being constructed under the supervision of the second opposite party under self-financing first cum first service basis. She also paid processing fee of Rs.25,000/- and Rs.500/- on 13.10.2009 respectively. Till 09.03.2010 she was not furnished any information regarding allotment of flat. ON 09.03.2010, she received one e-mail from the opposite party to pay Rs.2,83,000/- towards 10% of the flat cost and she paid the same to the second opposite party on 23.03.2010. Despite several requests, she was not furnished information regarding allotment. Hence she made representation to the opposite parties on 29.09.2010 and 12.11.2010 for refund of the deposited amount. But there was no response. On her application on 07.02.2011 under RTI Act , she was informed that her deposits were forfeited by the second opposite party. As per para no 16 of the terms and conditions of Demand Survey, 2009, after issuing the allotment letter and before taking possession if the applicant wants to withdraw from this venture, he/she was deducted 10% of the total cost. But the second opposite party has not issued any allotment letter nor handed over possession to the complainant. Hence she got issued legal notice to the opposite parties on 15.05.2012. But there was no reply which amounts to deficiency in service. Hence the complaint to direct the opposite parties to refund an amount of Rs.3,08,500/- with interest from 22.3.2010 till realization, to pay Rs.30,000/- toward damages, Rs.10,000/- towards compensation and costs of Rs.7,000/-.
- The first opposite party while admitting receipt of Rs.3,08,000/- contended that the complainant submitted an application to the second opposite party on 08.10.2010 to take back the amount due to some unavoidable circumstances and withdraw her name from the project and request to refund the amount. Since the complainant voluntarily withdrawn from the scheme, she is not eligible for refund of 10% cost as per the terms and conditions and the same was informed to her vide letter dt. 25.1.2011. On her representation dt.7.2.2011, they sent reply vie letter dt. 25.1.2011 which was acknowledged by her on 11.4.2011. The opposite parties have forfeited the amount as per terms and conditions. Hence prayed to dismiss the complaint.
- During the course of enquiry before the District Forum, in order to prove her case, the appellant/complainant filed her evidence affidavit and got marked Ex. A1 to A15 and the respondents/opposite parties filed Evidence Affidavit and Ex. B1 to B15 are marked
- The District Forum, after considering the material available on record, dismissed the complaint.
- Aggrieved by the said order, the appellant/complaint preferred this appeal on the ground that ( i) the District Forum grossly erred in relying on the condition No. 15 ( there is no such condition in the Ex. B1 as mentioned in the order) and it ought to have invoked the condition No 16 which is applicable to the facts of the case. (ii) the District Forum ought to have seen that admittedly the respondents/opposite parties not issued any allotment letter in favour of the appellant/claimant as such even taking aid of condition no. 15, the appellant is entitled for refund of the deposited amount. (iii) the District Forum grossly erred in observing that the allotment dated 09.06.2009 ( notification ) as allotment letter and basing on which dismissed the claim of the appellant in contravention of settled principles of law.
- Counsel for the respondents/opposite parties besides advancing arguments filed written arguments reiterating their respective contents as stated in their pleadings and evidence.
- The point that arises for consideration is whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner? To what relief?
10. There is no dispute that the appellant/complainant had paid an amount of Rs.2,83,000/- towards 10% of the flat value of Rs.30,80,000/- under the scheme in question floated by the opposite parties. There is also no dispute that the appellant/complainant informed the respondents/opposite parties vide Ex. A8 dated 29.07.2010 that due to some unavoidable circumstances she wanted to withdraw from the scheme, she requested the respondents/opposite parties to refund the amount paid by her. There is also no dispute that the opposite party had informed the appellant/complainant vide Ex. A12 dated 25.01.2011 that she is not entitled for refund of 10% cost paid as per the terms and conditions of the notification.
11. (i) The contention of the appellant/complainant is that instead of condition No. 15, the District Forum ought to have invoked condition No. 16 and the respondents/opposite parties have not issued any allotment letter and the District Forum erred in observing that the notification dated 09.06.2009 as allotment letter.
(ii) Condition No. 15 of Ex. B1 stipulates that “ on issue of allotment letter, if the applicant is not interested in taking the house/flat and applies for refund within one month, the name registration fee will be refunded. After payment of 10% and further instalments, but before taking possession 10% of the notified cost shall be forfeited and the balance if any will be refunded”.
(iii) The appellant/complainant contended that no allotment letter was given to her by the respondents/opposite parties. The District Forum mistakenly relied on notification No. 2/E3/EO/2009 dated 09.06.2009 as an allotment order and came to the wrong conclusion. It is only a notification. ExA-2 is the copy of the application form. Ex. A-3 and A-4 are copies of demand drafts for Rs.25,000/- and Rs.500/- respectively. Ex.A-5 is the e-mail letter from the respondents/opposite parties to the appellant/complainant to convey willingness by paying first 10% notified pay of Rs.2,83,000/-. Ex. A-6 is the copy of DD for an amount of Rs.2,83,000/- paid by the appellant/complainant to the respondents/opposite parties. Ex.A-8 dated 29.09.2010 is the copy of the letter from the appellant/complainant to the respondents/opposite parties stating that due to some unavoidable circumstances she wanted to refund of amount of Rs.25,000/- and Rs.2,83,000/-. She also got issued legal notice dated 07.02.2011 but there was no reply from the respondents/opposite parties. Ex.A-11 is the letter dated 10.03.2011 from the respondents/ opposite parties to the appellant/complainant reacting on the application under RTI Act. Ex. A-12 is the letter intimating about the non-eligibility of refund of 10% cost paid. Ex.A-15 is the legal notice dated 15.05.2012 from the counsel for the appellant/complainant to the respondents/ opposite parties for refund of an amount of Rs.3,08,500/-. Ex.A-1 dated 09.06.2009 is only a notification and after notification the appellant/complainant submitted an application along with 10% of the cost of the flat and also paid an amount of Rs.25,000/- and also Rs.500/-. The appellant/complainant sent withdrawal letter on 29.09.2010 under Ex. A6 to the respondents/opposite parties. In the notification dated 09.06.2009, it is mentioned that , ‘payment scheme will be spread over two years on finalization of tenders. If the construction is completed before two years, the allottees have to pay the balance revised tentative cost in lump sum and take possession of the flat. By the date of withdrawal letter , no allotment letter was issued by the respondents/ opposite parties stating that so and so flat in a particular block was allotted to her and she can occupy the same on payment of the remaining cost of the flat. As per condition No. 15, if the allotment was given, then only 10% of the cost will be forfeited. But there is no evidence on record to show that a particular flat was allotted to the appellant/complainant. In the absence of such evidence, condition No. 15 does not apply to the facts of the case on hand. The acts of the respondents/opposite parties in not refunding the amount on the premise that the appellant/complainant is not eligible as per condition no. 15 amounts to deficiency in service. Since it is an admitted fact that the appellant/complainant paid an amount of Rs.3,08,000/- to the respondents/opposite parties, the appellant is entitled for the same along with interest and costs.
12. After considering all the foregoing facts and circumstances and also having regard to the contentions raised on behalf of the appellant/complainant and the respondents/opposite parties, this Commission is of the view that there are merits in the appeal and the appellant/complainant is entitled to the amount of Rs.3,08,000/- with interest @ 9% pa from the date of payments and to pay Rs.10,000/- towards compensation for mental agony and costs of Rs.5,000/-. This Commission answered Point No.1, accordingly in favour of the appellant/complainant and against the respondents/opposite parties.
13. In the result, the appeal is allowed setting aside the impugned order and consequently the complaint is allowed in part directing the respondents/opposite parties to refund an amount of Rs.3,08,000/- with interest @ 9% P.A. from the date of payment ie. 22.3.2010 till the date of realization , to pay an amount of Rs.10,000/- towards compensation for mental agony and costs of Rs.5,000/- towards costs. Time for compliance four weeks.
PRESIDENT MEMBER
DATED : 22.06.2017.
