Date of Filing: 06.07.2015
Date of Order:15.10.2018
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
Monday, the 15th day of October, 2018
C.C.No.360/2015
Between
Shri Mohammed Ahmed,
S/o. Late Mohammed Azam,
Aged about 63 years, Occ: Retired,
R/o. Flat No.203,
1st Floor, Paramount Gardens, A.C. Guards,
Hyderabad, T.S. ……COMPLAINANT
And
Aditya Construction Company India (P) Ltd.,
Represented by it’s Managing Director,
Aditya Housing & Infrastructure Development Corporation Pvt. Ltd.,
Office at Aditya Mansion,
Plot No.29/A, Road No.5,
Jubilee Hills, Hyderabad -33,
Telangana State …..OPPOSITE PARTY
Counsel for the complainant : Mohd. Osman Shaheed
Counsel for the Opposite Party : Smt. P.V.Aruna Kumari
O R D E R
(By Hon’ble Sri P.Vijender, B.Sc., LL.B., President on behalf of the bench)
This complaint is filed under section 12 of Consumer Protection Act, 1986 alleging that non-refund of the amount paid towards earnest money for the purchase of four (4) Flats by the Opposite Party amounts to deficiency of service as such a direction to the Opposite Party to refund the earnest amount of Rs.6,20,000/- with interest thereon @ 18% p.a., from the date of issuance of legal notice to the date of realization and to pay a compensation of Rs.10,00,000/- for causing mental agony by not refunding aforesaid earnest amount and the cost of the complaint.
1. The Complainant’s case in brief is that having impressed by the venture developed by the Opposite Party according to it’s brochure booked four (4) flats in different ventures. The booking of the flat is on temporary basis as less than 10% amount of the sale consideration was paid and Opposite Party assured that, if, he does not desire to proceed in the venture prior to payment of 10% of total sale consideration of each flat the earnest amount paid will be refunded immediately. It was further assured by Opposite Party that, it will complete construction of flat and deliver possession of the same within 18 months.
2. The complainant paid Rs.1,00,000/- by way of cheque for one Flat in the venture known as “KINGSTON ADITYA’S EMPRESS TOWERS, Shaikpet, out of total cost is Rs.77,63,500/-. For the flat in the venture known as Aditya’s IMPERIAL HEIGHTS at Hafeezpet, he paid Rs.1,00,000/- by way of the cheque on 09.04.2012 and total cost of the Flat is Rs.41,50,000/-. For the flat in the venture known as KINGSTON ADITYA’S EMPRESS TOWERS, Shaikpet paid Rs.2,00,000/- by way of two Cheques on 06.08.2012 and the total cost of the Flat is 69,00,000/-. For the purchase of the 4th flat in the same through total cost of the flat was not disclosed, he paid Rs.2,20,000/- by way of a cash to Sri Hamid Mirza, Marketing Manager of the Opposite Party on different dates during the period from 11.10.2010 to 23.11.2012.
3. After paying the above said amounts towards Tata Sale consideration of the flats, Opposite Party had sent flat booking letters by post containing it terms and conditions which were never agreed by the complainant and he did not sign the same. The Opposite Party agreed to pay rent for flats if it fails to deliver possession of the same within 18 months from the date of booking. The 18 months period as agreed by Opposite Party will be completed by August-2013 but, it failed to complete the construction of flat and same is reason for cancellation of booking of flat by the complainant, in the month of December-2012 by which date only digging of pits was started.
4. The complainant demanded the Opposite Party in the month of December-2012 to refund the amounts paid towards booking of the four (4) flats in December-2012 as Opposite Party was not desirous in proceeding with the venture. At the same time the complainant learnt that, the Marketing Manager of the Opposite Party Sri Hamid Mirza, cheated number of persons and went underground.
5. The Opposite Party didn’t refund the amount on one or other pretext. Inspite of a demand regularly from December-2012. On 12.08.2013 complainant addressed a letter mentioning the date of his approach to the Opposite Party for refund of the amount. The Opposite Party agreed to refund the earnest amount as same was less than 10% of total cost of the each flat. Only on payment of 10% of the sale consideration of the flat booking of the sale agreement can be carried out. Since, the amounts paid by the complainant was less than 10% of sale consideration the flat was not booked. Hence, it could be refunded even according to the stand of Opposite Party. But, Opposite Party has not refunded the amount and it amounts to deficiency of service. Hence, the complainant got issued a legal notice on 01.05.2015 and having acknowledged it the Opposite party neither complied the demand nor replied it. Hence, the present complaint for the above stated relief.
6. The Opposite Party filed written version denying the complainant’s allegations. The contest set out in the written version is : the present complaint is filed the suppressing the material facts. The dispute is arising out of purported bookings and refund of advance amount of three (3) flats in the projects being developed by Opposite Party. It is a settled law that, when a consumer has booked more than one residential unit such booking amounts for investment / commercial purpose. Hence the complainant will not fall in the purview of definition of the ‘consumer’ as per section 20 (1) (d) of Consumer Protection Act, 1986. The same is the proportion of law laid down by the Hon’ble National Consumer Disputes Redressal Commission in the cases of :
i). Chilkuri Adarsh Vs. ESS ESS VEE Constructions, III (2012) CPJ 315
ii) Jagmohan Chabra and Another Vs. DLF Universal Ltd., IV(2007)
CPJ 199.
The Order of the Hon’ble NCDRC in Jagmohan case has been upheld by the Apex Court in Civil Appeal No.6030-6031 / 2008 on 29.09.2008. On the grounds itself the complaint is liable to be dismissed.
The complainant has not availed any services from the Opposite Party to file the present complaint alleging deficiency of service. The complainant is trying to take advantage of his own wrong and to claim damages.
7. The Opposite Party is a registered Company it is the Business of Construction of Residential and Commercial Flats in the city. The complainant approached Opposite Party for the purchase of Flat as per the payment schedule agreed under the flat booking letter. The complainant has to pay 10% of the flat cost as booking amount and 30% of the total cost of the Flat has to be paid at the time of entering into an Agreement of Sale but the complainant paid less than 10% of the Flat cost as booking amount. No assurance was given to the complainant that, if, he does not proceed to purchase the flat before payment of 10% of the flat cost the amount paid by him will be refunded. The complainant paid Rs.1,00,000/- by way of two Cheques for Flat No. 2012 in “Kingston Aditya’s Empress Towers”. He paid a token amount of Rs.1,00,000/- by way of a Cheque for Flat No.1203 in “Aditya’s Imperial Heights”. He also paid a token amount of Rs.2,00,000/- by way of two Cheques for Flat No.1208 in “Kingston Aditya’s Empress Towers”. The claim of the complainant that he also paid Rs.2,20,000/- by way of cash to it’s Marketing Manager is absolutely false. The complainant in his letter dated 12.08.2013 didn’t mention about purchase of 4th Flat and cash payment of Rs.2,20,000/- to the Marketing Manager, Mr. Hamid Mirza.
8. Flat booking letter contains terms and conditions including the terms relating to forfeiture of amounts in the event of cancellation of booking. The complainant had cancelled the booking of Flats in the month of December-2012 i.e., eight (8) months after booking of two out of three flats. By paying a meager token amount he has blocked flats for about eight months. The Opposite Party is entitled to cancel booking of flats and forfeit the amount paid on account of non-payment of the amounts as per schedule but did not do so in the interests of the complainant and gave him ample time to pay it. The complainant cancelled the booking of flats as he did not have sufficient money that too after eight months of booking of the flats. During the said period of eight months the Opposite Party could not sell these flats to any other prospective purchaser. The booking letter clearly states that, “No cancellation is permitted once initial 10% payment is made. In case of cancellation prior to initial 10% payment made, Rs.5,00,000/- will be forfeited from the booking amount”.
9. The complainant having failed to make payment of remaining amount in terms of flat booking letter which was duly executed in between the parties cannot allege deficiency of service and to take advantage of his wrong. It is a clear case of breach of contract which needs to be decided by a competent Civil Court and not by a Consumer Forum. Hence, the complaint is liable to be dismissed.
10. In enquiry stage the complainant has got filed his evidence affidavit reiterating the material averments of the complaint and in support of the same he has got exhibited six (6) documents. On behalf of the Opposite Party, the evidence affidavit of one Mr. Tota Satyannarayana stated to be authorized signatory of it is filed and substance of his affidavit is in tune with the defence set out in the written version. No document is exhibited on behalf of Opposite Party.
11. Both sides have filed written submissions and the opposite party alone submitted oral arguments and for the complainant a Memo is filed to treat written submissions as oral argument also.
12. On a consideration of material on the record the following points have fallen for consideration:
- Whether the complainant is the ‘consumer’ within definition of Section 2 (1) (d) of Consumer Protection Act, 1986?
- Whether non refunding of amount paid for the purchase of four flats amounts to deficiency of service entailing the complainant to claim compensation?
- To what relief?
- Point No.1: According to the complaint the complainant paid an amount of Rs.4,00,000/- by different Cheques for the purchase of three flats and for 4th flat he paid a sum of Rs.2,00,000/- on different dates to one Mr. Hamid Mirza stated to be Marketing Manager of Opposite Party during the period from 11.10.2010 to 23.11.2012 Opposite Party admitted about receipt of Rs.4,00,000/- as earnest amount for the three flats but deny payment of Rs.2,20,000/- for the purchase of 4th flat to one Mr. Hamid Mirza. Inspite of this denied in the written version itself the complainant has no chosen to file any acceptable material on record to believe payment of cash of Rs.2,20,000/- towards earnest amount for the purchase of 4th flat. In the complaint at Para No.7 of Page No.3 mentioned addressing of a letter dated 12.08.2013 and states date of his approach to Opposite Party on 02.03.2013, 16.05.2013 & 07.08.2013 asking for refund of the amounts paid as earnest money for the purchase of the flats. In the written version at Para No.11 of Page No.4 the Opposite Party has categorically stated that, the complainant has not mentioned about the 4th flat in his letter dated 12.08.2013. So, the Opposite Party has admitted addressing of a letter by complainant on 12.08.2013. But, the complainant for the reasons best known to him has not placed the copy of the said letter before this Forum along with the marked exhibits. It appears the complainant purposefully has not filed the copy of the said letter as it will not disclose about his claim of purchase of 4th flat and payment of earnest money for it. Another important aspect is as per the Para No.4 of Page No.2 of the complaint the complainant has mentioned date of payment of Rs.85,000/- in cash to Mr. Hamid Mirza on 23.11.2012 as part of earnest amount for the purchase of 4th flat. It does not in dispute that, in the month of December 2012 itself complainant has approached the Opposite Party Office asking for refund of the amounts paid as earnest money for the purchase of all the flats. So, within a couple of weeks’ after alleged payment of Rs.85,000/- he has decided not to proceed to purchase the flats. So, how it can be believed that, he paid RS.85,000/- on 23.11.2012 in cash to Sri Hamid Mirza. For the three flats the complainant has paid the amounts by way of Cheques and Ex.A3 to A5 are the flat booking letters mentioning about the payment received from the complainant by way of Cheques for three flats. So, the complainant was aware that, whenever the amount was paid towards earnest money for the purchase of flats a flat booking letter in the manner of Ex.A3 to A5 will be delivered to him by the Opposite Party. Then why he did not insist for such as letter for the 4th flat also is not explained. As could be seen from Ex.A8 letter stated to have been addressed by complainant to Opposite Party he addressed a letter on 02.03.2013 itself seeking cancellation of three flats which had booked. But, the copy of said letter is also not placed before this Forum. So, none of the documents placed on record by the complainant support of his claim of payment of Rs.2,20,000/- in cash for the purchase of 4th flat from Opposite Party.
- One of the main reason urged up by Opposite Party is the complainant claiming to have booked four (4) flats and since it is more than one residential unit it amount to booking of four years for investment of commercial purpose, which is settled law of the land as per the decisions of the Hon’ble National Commission in the Cases referred in the written version of Opposite Party. The complainant conveniently to overcome this aspect for the first time in the evidence affidavit mentioned that, he has booked four flats in different ventures of the Opposite Party for himself and his sons. Had it been so he would have stated the same in the complaint itself. Hence, stating that, booking of four flats for himself and his sons as an afterthought to overcome defense set up by Opposite Party in written version. Obviously, the complainant booked flats either for investment purpose or for re-sale with profit as such it amounts to commercial transaction and he cannot claim as a ‘consumer’ within the meaning of Section 2 (1) (d) of Consumer Protection Act, 1986. Accordingly, the point is answered against the complainant.
- Point No.2: The complainant has booked the flats in the different ventures of Opposite Party to purchase the same expecting service from Opposite Party in the construction of residential unit. Admittedly an agreement of sell was not executed in between the parties. Even according to the flat booking letters Ex.A3 to A5 there is a clause for refund of the amount if cancellation is sought before the payment of 10% of the total cost of the flat. But, as per the decision in the case of TLF Ltd., Vs.Bhagawati Marulla it is not permissible in law to forfeiture any amount beyond a reasonable amount unless it shows that, person forfeit, amount had actually suffered loss to the extent amount forfeited by him. Only a reasonable amount can be forfeited as earnest money in the event of default of purchaser. So, the defense set up by the Opposite Party that, because of forfeiture flats clause the flat booking letter it is not liable to be refund the mounts claimed by complainant has no legs to stand. Accordingly the point is answered.
- In view of these findings of this Forum that, the complainant is not a ‘consumer’ within the meaning of Section 2(1)(d) of Computer Protection Act, 1986. This Forum cannot direct Opposite Party to refund the amount. The complaint is dismissed without costs.
- Point No.3 : In the result, the complainant is not a ‘consumer’ within the meaning of Section 2(1)(d) of Computer Protection Act, 1986. Hence, the complaint is dismissed without costs.
Typed by Typist, corrected and pronounced by us on this the 16th day of October, 2018.
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
PW1 DW1
Shri Mohammed Ahmed Mr. Thota Satyanarayan
Executive Director of OP. Co.,
Exs. filed on behalf of the Complainant:
Ex.A1: is copy of Legal Notice, dt.01.05.2015.
Ex.A2: is copy of Pass Book of Union Bank Account.
Ex.A3: is copy of Flat No.1203, booking letter, along with payment schedule, dt.10.04.2012.
Ex.A4: is copy of Flat No.1208, booking letter, along with payment schedule, dt.18.08.2012.
Ex.A5: is copy of Flat No.2102, booking letter, along with payment schedule, dt.19.03.2012.
Ex.A6: is copy of Representation for refund of money, dt.12.08.2013.
Exs filed on behalf of the Opposite party
Nil.
MEMBER PRESIDENT
