BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.537/2015

DATED ON THIS THE 23^rd December 2016

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri H.M.SHIVAKUMARA SWAMY,

President

1.     This complaint is filed by the complainant for a direction to the opposite party to pay Rs.11,236/- deducted as administrative charges and service tax with interest and also for payment of interest at 9.5% p.a. on Rs.2,00,000/- from the date of deposit till repayment, for payment of compensation and litigation expenses.
2.     The brief facts alleged in the complaint are that the complainant has booked the apartment with opposite party on 04.10.2014 and deposited a sum of Rs.2,00,000/- as booking charges.  The opposite party has agreed to allot flat in A Block bearing No.G-07-407 at cemetery side.  Subsequently, the opposite party made an attempt to change the said flat and to provide another flat which is not having proper ventilation.  Thereby, complainant did not agree for that and demanded for repayment of the amount.  The opposite party though repaid the amount, deducted a sum of Rs.11,236/- as administrative charges and service tax which is not correct and the opposite party has kept Rs.2,00,000/- with establishment without any interest, the said interest is to be paid.  There is deficiency in service on the part of opposite party in not realising Rs.11,236/- + interest on booking charges.  Hence, this complaint is filed.
3.      The opposite party appeared and filed the following objections:- complaint is not maintainable.  Complainant has not booked the flat.  On the other hand, he has registered himself to book an apartment in the project.  It is admitted that the complainant has paid Rs.2,00,000/- as registration charges.  Opposite party not agreed to allot apartment No.A G07-407.  Based on the registration itself, complainant is not entitled for allotment of apartment. There was no discussion between the parties for allotment of a particular apartment at the time of depositing the registration fee. 
4.     On 31.12.2014, the complainant submitted an application and requested for refund of registration fee due to personal reasons.  The same was paid by means of cheque after deducting Rs.10,000/- as administration charges and Rs.1,236/- as service tax.  The opposite party is not liable to pay interest on Rs.11,236/- or on deposit towards registration charges.  Thereby, there is no deficiency in service and sought for dismissal of the complaint.
5.     On the above contentions, this matter is set down for evidence.  During evidence on behalf of complainant, his affidavit evidence was filed and further evidence closed.  Even on behalf of opposite party also, affidavit of representative of opposite party filed and further evidence closed.    After hearing arguments, this matter is set down for orders.
6.     The points arose for our consideration are:-

1. Whether the complainant establishes that there is deficiency in service on the part of opposite party in deducting administrative charges and service tax while refunding the amount, thereby the complainant is entitled for the said sum with interest and also interest on Rs.2,00,000/- which was deposited towards registration charges?
2.  What order?

7.    Our findings on the aforesaid points are as follows:

Point No.1 :- Partly in the affirmative.

Point No.3 :- As per final order for the following

:: R E A S O N S ::

8. Point No.1:- The transaction between parties is admitted, so far as registration of flat is concerned and deposit of amount towards registration fee for booking the flat.  Only thing is whether the complainant is entitled for the refund of amount deducted towards administrative charges and service tax while refunding the amount to the complainant and whether the complainant is entitled for interest on both amount.  The complainant in his evidence as avoid so many things, the opposite party has assured to allot a site on cemetery side, later opposite party wanted to change the same to another site which has no ventilation and there are other problems in the said apartment.  Thereby, the complainant did not agree to go for further transaction and sought for refund of the amount deposited by him towards registration fee and a representation was given by the complainant on 31.12.2014 with a request to cancel the booking of flat in Brigade Mount View because of his personal reasons.  So voluntarily, the complainant has withdrawn himself from the transaction.  Thereby, he is not entitled for any interest on the amount deposited towards booking charges.
9.    So far as deduction of administrative charges and service tax is concerned, the opposite party has relied on condition No.8 shown in the booking form.  Copy of the booking form is produced to the Forum and condition No.8 reads that “in addition to the cost of apartment there would be additional expenses towards stamps duty, registration and legal charges” applicable with service tax and any other levies.  But, it is in respect of the apartment which if it is allotted to the complainant at the time of registration of sale deed, this clause is invoked by the opposite party, but not in respect of the amount deposited towards booking charges as admitted by the opposite party.  Thereby, deduction of administrative charges and service tax to the extent of Rs.11,236/- which is not permissible as per the condition laid down in the booking form.  Thereby, the amount deposited towards administrative charges and service tax amounts to deficiency in service on the part of opposite party, so far interest on the deposit of Rs.2,00,000/- towards booking charges is not justifiable because there is no such clause in the booking form itself.  Thereby, the complainant is not entitled for interest on booking charges of Rs.2,00,000/-.  On the other hand, he is entitled for refund of Rs.11,236/- being the amount deposited by the opposite party at the time of refunding the registration fee with interest to the complainant.    Hence,   point No.1 is answered partly in the affirmative.
10. Point No.2:- In view of the findings recorded on point No.1, it is the opposite party is liable to refund Rs.11,236/- with interest at 12% p.a. from the date of deduction i.e. 07.02.2015 till payment with litigation expenses of Rs.2,000/-. Hence, we pass the following order:-

:: O R D E R ::

1. The complaint is allowed in part.
2. The opposite party is directed to pay Rs.11,236/- with interest at 12% p.a. from 07.02.2015 till payment.
3. Opposite party is directed to pay Rs.2,000/- towards litigation expenses to the complainant.
4. In case of default to comply this order, the opposite party shall undergo imprisonment and also liable for fine under section 27 of the C.P.Act, 1986.
5. Give the copies of this order to the parties, as per Rules.

 (Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 23^rd December 2016)

                          (H.M.SHIVAKUMARA SWAMY) 

                                      PRESIDENT     

(M.V.BHARATHI)                           (DEVAKUMAR.M.C.)

      MEMBER                                         MEMBER