Challenge in this revision petition is to the order dated 19.10.2006 passed by the A.P. State Consumer Disputes Redressal Commission, Hyderabad (‘State Commission’ for short) dismissing the appeal filed by the petitioner against the order of the District Forum dated 16.12.2004 in C.D. No.26 of 2004. Vide its order, the District Forum allowed the complaint of the respondent/complainant and directed the OPs – 1 & 2, petitioners herein, to refund Rs.28,050/- with interest @ 12% p.a from 1.8.2001 till the date of filing of the complaint, i.e., 09.02.2004 and from 10.02.2004 @ 9% p.a. till realization along with cost of Rs.2,000/-. 2. Briefly stated, the complainant had booked a flat in Malhar Scheme of the OPs on 1.8.2001 for Rs.5,61,000/- and paid Rs.10,000/- as advance to the OPs followed by another payment of Rs.18,050/- on 09.08.2001 with the OPs. After booking the flat, according to the complainant, he came to know that the area where the building project has to come up is situated near the garbage dumping place and that there are no hygienic conditions in the locality. Hence, the complainant decided to cancel the booking and requested for refund of the advance amount. The OPs sent a letter on 16.04.2002 intimating the complainant about the cancellation of the unit in question but refused to refund the advance amount of Rs.28,050/- in view of clause 8 of the terms and conditions mentioned in the application form. According to the complainant, the OPs did not explain the terms and conditions to the complainant at the time of booking and even otherwise, the said clause is arbitrary, illegal, unilateral and it is meant for enriching the OPs and there is no corresponding liability on the part of OPs in case of their default and hence the said clause is not binding on the complainant. Having failed to get the refund from the OPs, the complainant approached the District Forum by filing a complaint which was allowed by the District Forum. The State Commission also upheld the order of the District Forum and dismissed the appeal of the petitioners and hence the revision petition. 3. We have heard the counsel for the petitioners and also the respondent in person. It is not in dispute that the booking of the flat in question was subject to certain terms and conditions given on the application. The clause 8 of these conditions provides for cancellation and it is specifically laid down therein that “If the applicant(s)/allottee(s) wish to cancel the allotted unit(s) on his/her/their own accord or the unit(s) is/are cancelled by the Society/Company for violation of any of the terms and conditions, the deposited amount paid by the allot is refundable after deducting 10% of the total cost of the unit without any interest”. The petitioner would assail the concurrent orders of the fora below on the ground that the refund in question has to be allowed in terms of clause 8 of the terms and conditions. Having booked the flat subject to these terms and conditions, the complainant cannot be allowed to escape from their operation or disown them. He further submitted that the State Commission gravely erred in holding that clause no.8 is arbitrary since the arbitrariness cannot be attributed to a contractual clause. The observations of the State Commission that clause no.8 amounts to unfair trade practice are also based on conjectures and surmises and have no basis under law with reference to the definition of “unfair trade practice” given in the Consumer Protection Act. He further submitted that the present case is squarely covered by the judgement delivered by this Commission on 22.04.2010 in R.P No.497 of 2006 in the case of M/s Sahara India Commercial Corporation Ltd. Vs. P. Gajendra Chary. 4. We have carefully considered the submissions of the parties and perused the orders of fora below. It is not as though the refund is not permissible but the point here for consideration is that the refund, if any, is necessarily to be governed by the contents of clause 8 of the terms and conditions of the booking of the flat. In the present case, the complainant had paid an advance of Rs.10,000/- followed by another sum of Rs.18,050/-, that is to say, a total sum of Rs.28,050/-. Hence, when he requested for cancellation of the booking and getting the refund, the OP was right in deducting an amount equal to 10% of the cost of the flat which comes to Rs.56,100/- (10% of Rs.5,61,000/-). Since the total deposit was only Rs.28,050/- which is less than Rs.56,100/-, entire amount was liable to be forfeited under clause 8. As regards the allegation of unfair trade practice, the State Commission has struck down clause 8 on the ground of unfair trade practice. We have gone through clauses (i) to (x) of section 2(r)(1)of the C.P. Act, which define various types of unfair trade practices. In our view, clause 8 of the terms and conditions does not fall under any of the 9 categories. The respondent in person has relied on the judgments of the Apex Court in the cases of Buddhist Mission Dental College and Hospital Vs. Bhupesh Khurana and Others [(2009) 4 SCC 473] and Venture Global Engineering Vs. Satyam Computer Services Ltd. and Anr. [(2010) 8 SCC 660] in support of his case. However, we find that the same cannot be applied to the facts and circumstances of this case which are different from those cases. When there is a written agreement between the parties, it is well settled that the consumer fora have to consider the relief in the light of such agreement and it is not open to them to add or subtract any of the conditions or words thereof while doing so. In the light of this proposition, which has been upheld through our judgement in R.P. No. 497 of 2006 (supra), there is no doubt that the fora below exceeded their jurisdiction and committed an error in directing the OP to refund the amount of Rs.28,050/- which is contrary to provisions of clause 8 of the agreement. Clause 8 also provides that interest on refunds is not permissible. In the circumstances, the impugned order cannot be sustained in the eye of law. The same, therefore, has to be set aside. Consequently, we allow the revision petition and set aside the impugned order of the State Commission with the parties bearing their own costs. |
