Date of Filing:23.07.2015

                                                                                       Date of Order: 11.12.2018         

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD

P r e s e n t­

   HON’BLE Sri P.Vijender, B.Sc. L.L.B.  PRESIDENT

HON’BLE Smt. D.Nirmala, B.Com., LLB., MEMBER

   Tuesday, the 11^th day of December, 2018

C.C.No.364/2015

Between

Sri Konda Rama Mohan Rao,

S/o. Konda Venu Gopala Rao,

Aged 31 years, Occ: Employee,

R/o. Flat No.301, Subham Splendor,

Opp to Srikara Hospital Mytrinagar,

Madinaguda, Hyderabad – 500050.                                    ……COMPLAINANT

And

Aditya Construction Company India (P) Ltd.,

Rep. by its authorized signatory Mr.Suresh Rayala,

Aditya Mansion, Plot No.29/A, Road No.5,

Jubilee Hills, Hyderabad – 500033.                              …..OPPOSITE PARTY

Counsel for the complainant        : Sri K.Durga Prasad 

Counsel for the Opposite Parties    :  M/s. Kochar & Co.,

O R D E R

(By Hon’ble Sri P.Vijender, B.Sc., LL.B., President on behalf of the bench)

            This complaint has been filed under Section 12 of C.P. Act of 1986 seeking refund of Rs.5,34,250/- with interest thereon @ 12% and to pay damage of Rs.1,00,000/- for causing mental agony to the complainant by not refunding the part of the sale consideration paid for the purchase of the Flat.

1.         Complainant’s case in brief is that: Opposite Party is in the business of construction of residential flat and to sell the flats to prospective purchasers, Opposite Party offered to sell the Flat bearing No.308 Carlton in ‘C’ Block admeasuring 1490 sq. feet in the 3^rd Floor of Aditya’s Imperial Heights, Hafeezpet, Hyderabad.  The complainant has agreed to purchase the said flat for a total sale consideration of Rs.53,42,500/- and paid an amount of Rs.1,00,000/- as an advance by way of cheque on 10.12.2012.  After payment of the said amount Opposite Party issued flat booking letter in the printed form on the same day.  Thereafter, the complainant paid an amount of Rs.4,34,250/- by way of cheque on 28.02.2013 towards part of the sale consideration for the flat booked and same was acknowledged by a separate receipt bearing No.4995 dated 11.03.2013 and the balance sale consideration was to be paid by the complainant as per the schedule furnished by the Opposite Party.  At the same time booking of the flat Opposite Party promised to provide facility from State Bank of India to avail the loan.  The complainant made request with Opposite Party to take necessary steps for loan process and in the meanwhile he will arrange some money after obtaining gold loan from the Bank.  But the Opposite Party has failed to co-operate with the complainant in securing the loan.  The Opposite Party having collected 10% of the total sale consideration did not respond to the complainant request for necessary steps for availing loan from the bank.    

2.         The Opposite Party without a prior notice or an intimation issued letter of cancellation on 12.04.2013.  The complainant made several requests with Opposite Party and his staff and discussed for another flat.  The complainant applied with the State Bank of India and secured the approval letter but, the Opposite Party did not cooperate even after receipt of 10% of the total sale consideration for the flat. Opposite Party also neither refunded the advance amount collected nor cooperated with the complainant by allotting another flat and it also failed to complete the transaction.  Hence, the present complaint for the above stated releifs.

3.         The Opposite Party in his written version admitted booking of the flat by the complainant but denied the rest of the allegations made in the complaint.  The defence of the Opposite Party  is that complainant on his own agreed to purchase flat No.308 admeasuring 1490 sq.feet in Aditya Imperial Heights for a total sum of Rs.53,42,500/- and paid only of Rs.1,00,000/- by way of cheque dated 09.12.2012.  On 10.12.2012 it is issued a flat booking letter on a printed form.  Later complainant paid Rs.4,34,250/-, on 11.03.2013 by way of cheque and a receipt was delivered to the complainant for it.  The complainant was to pay the balance sale consideration as per schedule issued by the company. 

4.         Thereafter the complainant failed to pay further amounts as per the payment schedule enclosed to the signed flat booking letter.  The Opposite Party has issued reminder letters and emails on 10.01.2013, 23.01.2013, 06.03.2013 & 12.03.2013 asking the complainant to pay the pending dues, but, he failed to respond.  In the email dated 06.03.2013 the complainant was called upon to pay the outstanding amount of Rs.39,06,875/- but, the complainant failed to respond.  Left with no alternative Opposite Party cancelled the allotment of the flat and forfeited the amount paid as per terms and conditions of the flat booking letter. 

5.         Opposite Party never promised to provide home loan facility to the complainant.  It is the responsibility of the purchasers of the flats to obtain loan facility and Opposite Party does not render any kind of assistance in that regard.  The Opposite Party is not engaged in banking business and loans are sanctioned and provided by banks purely on the eligibility of applicants and Opposite Party has no role in that regard.  Hence, the complainant cannot blame to Opposite Party for his failure to secure loan in time. 

6.         The complainant inspite of knowing the fact that flat booking has been cancelled on account of his failure to make payment as schedule went on making communications with Opposite Party.  The complainant booked the flat in December 2012 and the flat booking letter enclosing there to a clear payment schedule was provided to him at that point of time and complainant signed the same which amounts to his admission and acknowledgment to make payment a scheduled but he failed to do so.  Hence, flat booking was cancelled in April 2013 which is five months after booking of flat and thus sufficient opportunity was given to the complainant to make payments.  The complainant having booked the flat made believe the Opposite Party that he will pay balance amount is scheduled and thereby blocked the allotment of the flat to 3^rd parties and Opposite Party could not sell it to a 3^rd party for 5 months.  It is a settled law that in case of default in payment as per the agreed schedule despite reminders the builder is entitled to forfeit the amount paid.  Hence, the complainant is not entitled to ask for refund of the amount paid towards part of sale consideration for the flat booked by him. 

 7.        There is no deficiency of service on the part of the Opposite Party since the complainant failed to pay of remaining amount as per the terms and conditions of the flat booking letter duly executed between the parties thus it is a clear case of breach of contract and same needs to contested before a civil courts but, the complainant to avoid payment of court fee preferred the present complaint.  The subject matter does not come under purview of deficiency of service and filing of the present complaint is nothing but abuse the process of law.  That apart the relationship between the parties is purely contractual one hence, the complaint before this forum is not maintainable and the complainant is not entitled for any of the relief prayed for and the complaint is liable to be dismissed with exemplary costs.

8.         In enquiry stage the complainant has got filed his evidence affidavit reiterating material averments of the complaint and has got exhibited 22 documents.  For the Opposite Party evidence affidavit of one Sri Satyannarayana stated to be it’s authorized signatory is got filed and substance of it is in tune with the defence set out in the written version and he too got exhibited one document. 

9.         Both sides have filed written arguments and supplemented the same with oral submissions.

10.       On a consideration of material placed on the record the following points have emerged for consideration: 

1. Whether the complaint can maintain the present complaint before this Forum ?
2. Whether the Opposite Party is entitled the forfeit the entire amount collected from the complainant towards part of sale consideration of the Flat which he agreed to purchase from the Opposite Party ?
3. Whether the complainant is entitled for the amounts claimed in the complaint?   To what relief ?

11.  Point No.1: The first and foremost objection taken by the Opposite Party in it’s written version is, it has not rendered any services to the complainant, similarly complainant has not availed any services from it.  As such and relationship between the parties is only contractual one hence, the complaint cannot maintain the consumer complaint.  It is further contest of the Opposite Party that the relationship between the parties is a contractual one and both parties are bound by terms and conditions incorporated in the contract which is captioned as flat booking letter.  This line of defence taken as Opposite Party as no legs to stand because by now it is settled law that a prospective purchasers of a flat from the builder as a consumer and he is availing services of Opposite Party in constructing the flat for the consideration he agreed to pay.  Now coming to the aspect of contractual terms and conditions the so called terms and conditions printed in the flat booking letter are one sided.  Even according to the Opposite Party it has sent the flat booking letter to the complainant asking him to sign it and send back.  A reading of the so called terms and conditions of flat booking letter marked as Ex.A1 shows all the conditions are printed by the Opposite Party to suit its convenience in it’s business of construction and sale of the flats.  By no such imagination it can be said that, Ex.A1 document is a concluded contract between the parties.  Every contract shall contain terms and conditions to be adhered by the parties to it and these terms and conditions normally imposes some obligation on both the parties.  But the terms and conditions printed on Ex.A1 doesnot impose any condition on the Opposite Party and it only speaks about the payment of amounts schedule by the complainant with default clauses. It does not discloses about the schedule completion of construction of the flat and delivery of it’s possession to the complainant.  To treat Ex.A1 as a sale agreement it shall contain schedule of construction its completion, time for registration and deliver of its possession but none of these things are mentioned in Ex.A1.  So in absence of the same it cannot be said that Ex.A1 is a concluded contract between the parties.  As such the defence taken by the Opposite Party that Ex.A1 is a concluded contract and the parties to it are bound by it and as such this forum has no jurisdiction to entertain the complaint has no legs to stand.  Accordingly, the point is answered against the Opposite Party. 
12. Point No.II: All the documents placed on record are not in dispute.  Similarly it is not in dispute that the complainant has agreed to purchase the flat that was being constructed by Opposite Party at Hafeezpet and total sale consideration as agreed between the parties was Rs.53,42,500/- and complainant paid a sum of Rs.1,00,000/- on 10.12.2012 by way of cheque and thereafter Opposite Party had sent Ex.A1 flat booking letter along with schedule of payment asking him to sign it and send it. About 2 ½ months thereafter the complainant paid a sum of Rs.1,32,250/- by way of cheque which was acknowledged the Opposite Party by way of receipt on 11.03.2013.  The complainant version is at the time of booking the flat he was promised by the Opposite Party that necessary assistance will be provided to him to secure loan from a bank which is denied by the Opposite Party.  As could be seen from Ex.A6 email extract complainant made a requested to provide details for loan process initiation.  It further discloses that the complainant received phone call from Mr.M.Suresh demanding payment and in that call complainant requested loan details from and the contact person.  As could be seen from Ex.A8 from day one after booking flat complainant was in contact with one a person who stated have collected the cheque from the complainant’s uncle as he was at abroad.  In every email the complainant referred about the name of the Mr.M.Suresh and reference made by them to contact for loan process.  In the reply to emails nowhere Opposite Party has said that it is in no way concerned with the loan process for the flat purchasers.  Only for the first time of the written version the Opposite Party has come up with it’s stand that it never promised to assist or help the complainant or any of the flats purchasers in securing the loan from the bank.  It is a common knowledge that, every reputed builder like Opposite Party will assist the prospective purchase of the purchasers availing the loan.  That apart in the instant case there is no agreement of sale executed by Opposite Party in favour of the complainant so that complainant can approach a bank with the said agreement for securing the loan.  No bank or financial institution will come forward to sanction loan without there being an agreement containing the details of the property agreed to the purchased by the lonee and the cost of it.  In the absence of an agreement to sale complainant could not process and loan with a bank as a result he could not pay the balance amount as per schedule.  In the in every email the complainant has mentioned that he going for 80% of the sale consideration as loan for the purchase of the flat and it shows that he was expecting an assistance from the Opposite Party for securing the loan for purchase of flat.  The Opposite Party having collected 10% of the total sale consideration of the flat did not cooperate and did not execute necessary documents so as to enable the complainant in availing the loan.  Having not cooperated with the complainant the Opposite Party not only cancelled the flat agreed to be sold to the complainant but also forfeited the amount paid by the complainant for which it is not entitled. Forfeit of the amount paid as advance sale consideration will arise only in case the builder could not prove that he sustained the loss on account of failure of the complainant to pay the balance of amount.
13.       The learned counsel for the Opposite Party in support of his contention is that, the builder is entitled to forfeit the amount collected towards part of sale consideration when there is a default on the part of purchaser placed reliance in the case of DLF Southern Towers Pvt. Ltd., Vs. Deepu-C Seminlal.  In the said case facts are different because a Sale agreement was executed by the builder enabling the prospective purchaser to process the loan application and the complainant therein did not send apartment buyers agreement back to the builder and such situation is not prevailing to the case on hand.  Though the Opposite Party stand is that, on account of complainant’s booking, the flat Opposite Party could not sell it to a 3^rd party for 5 months.  But there is no evidence for it.  Infact, though the complainant has booked the flat by paying Rs.1,00,000/-by way of cheque 10.12.2012 he has not signed the flat booking letter even by 08.03.2013 as evidenced by email from Opposite Party under Ex.A5.  The so called terms and conditions will come to force only on signing of flat booking letter by complainant even according to the Opposite Party.  As such the defence of the Opposite Party that the complainant prevented it from selling the flat to third party for 5 months as to no legs to stand. 
14.     After the sending of flat booking cancellation letter by Opposite Party the complainant requested to allot an alternative flat and finally to refund the amount paid and he sent several emails and also visited the office of Opposite Party but there was no response.  Since no loss has been occurred to the Opposite Party it cannot be allowed to retain the amount paid by complainant by way of forfeiture.  The Opposite Party cannot be allowed to enrich itself by forfeiting the amount collected from the complainant. Hence, the Opposite Party is liable to be refund the entire amount paid by the complainant.  The Opposite Party by not refunding the amount has caused harassment and mental agony to the complainant and did not cooperate properly with the complainant in processing the loan did not allot alternative flat even after the complainant succeeded in securing the loan from the bank hence it amounts to deficiency of service hence and liable to pay a compensation of Rs.50,000/-.  Accordingly the point is answered in favour of the complainant.    
15. In the result, the complaint is allowed in part directing the Opposite Party to refund the amount of Rs.5,34,250/- with interest @ 12% p.a., from the date of complaint to the date of payment.  The Opposite Party is liable to pay Rs.50,000/- as compensation and Rs.10,000/- towards cost of the complaint.

Typed by Typist, corrected and pronounced by us on this the 11^th day of December, 2018.

MEMBER                                                                                           PRESIDENT

APPENDIX OF EVIDENCE

 PW1                                                                                  DW1

 Sri Konda Rama Mohan Rao                                            Sri Thota Satyannarayana

                                                                                           Authorised Signatory of the OP

Exs. filed on behalf of the Complainant:

Ex.A1 is copy of  Flat Booking Letter, dt.10.12.2012.

Ex.A2 is copy of Receipt, dt.11.03.2013.

Ex.A3 is copy of Payment schedule.

Ex.A4 is copy of Letter of confirmation through gmail, dt.07.03.2013.

Ex.A5 to Ex.A 22 is copy of Letter through g.mails in various dates.

Exs filed on behalf of the Opposite party

Ex.B1 : A copy of the email dated 06.03.2013 addressed by OP to the Complainant calling upon the letter to pay the then outstanding dues of Rs.39,06,875/-.

MEMBER                                                                                           PRESIDENT