BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 14^th DAY OF AUGUST 2015

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties.1 to 3 (herein after referred as OPs) claiming refund of Rs.2,00,000/- together with Rs.75,000/- towards mental agony and damages and costs of this proceedings.

2. The brief averments made in the complaint are as under:

The complainant made an application to the OP-1 for allotment of an apartment in its project under the name and style “CINOTI ALLURE” vide unit application form dated 11.07.2013.  The complainant initially advanced a sum of Rs.5,00,000/- as advance sale consideration and thereafter a further sum of Rs.11,00,000/- to the OP-1.  The complainant was unwilling to continue with the purchase of the apartment being built by OP-1, as the OP-1 directed the complainant to pay more amount than what was initially agreed.  The complainant orally communicated the OPs that he would not be continuing with them as they have started to demand excess money than what was agreed initially.  The OPs returned only a sum of Rs.14,00,000/- and withheld a sum of Rs.2,00,000/- out of the entire sum of Rs.16,00,000/- paid by the complainant.

Nowhere in the application for allotment or any other piece of paper signed by the complainant, contemplated deduction of non-refundable amount of Rs.2,00,000/- and OPs have deliberately and illegally withheld a sum of Rs.2,00,000/- to harass the complainant and defraud him of his valuable money.  The complainant got issued a legal notice to OPs demanding them to refund the said sum of Rs.2,00,000/-.  The notice is duly served on the OPs and no reply is forthcoming from their end.

For the aforesaid reasons, the complainant prays for an order directing OPs to refund him a sum of Rs.2,00,000/-, Rs.50,000/- towards mental agony, Rs.25,000/- towards damages and litigation cost.

3. In response to the notice issued, OPs appeared through their advocate and filed their version.  The sum and substance of the version filed by the OPs is as under:

The complainant has filed this complaint with a malfide intention to make wrongful gain and the amount claimed by the complainant in the complaint is false.  The conduct of the complainant having filed this complaint by making false claims by suppressing facts is despicable and condemnable.  It is true that the complainant has made an application to the OP-1 for allotment of an apartment in one of its projects under the name and style “CINOTI ALLURE”.  It is also true that the complainant had advanced a total sum of Rs.16,00,000/-.  The allegation of the complainant that the OP-1 started insisting excess amount than what was initially agreed is false and frivolous.  According to the agreed terms, the complainant was supposed to pay 30% of the total apartment cost within 30 days from the date of the booking apartment which amounts to Rs.35,57,417/- (including the initial booking amount).  The OPs were kind enough to accept the initial payment of Rs.11,00,000/- paid by the complainant as part of the first instalment.  The statement made by the complainant in the notice dated 27.10.2013 filed as document No.5 along with complaint is totally contradicting with the statement made in the complaint that the complainant was unwilling to purchase the apartment as the OPs demanded more money than initially agreed.

The complainant instead of paying Rs.35,57,417/- as initial 30% of the cost of the apartment, paid only a total sum of Rs.16,00,000/- and requested the OPs seeking time to pay the rest of the amount of the first instalment as he was dependent for money on a site in Kerala which he had intended to sell and had assured the OPs that the complainant would pay the remaining amount of the first instalment as soon as he sells the said land.  Even though the OPs were supposed to receive more than Rs.16,00,000/- within one month from the date of booking of flat by the complainant as per the payment schedule, the OPs were very much liberal towards the payment terms with the complainant.  The complainant as alleged in his complaint never communicated the OPs orally regarding cancellation of the booking of the apartment for the reason that the OPs started demanding more money than initially agreed.  The complainant had sent an e-mail to the OP-3 on 08.08.2013 stating that he regrets to inform the OPs that he would like to cancel his booking of the apartment at the “Cinoti Allure’ as he is unable to arrange for the remaining money as the person who committed to him for purchasing the property at Kerala has gone missing.  As per the terms and conditions of the application form submitted by the complainant for the purchase of the said apartment, the OPs were entitled to deduct 25% of the total agreement value along with interest and other charges.  Assuming that the complainant had paid Rs.16,00,000/- as initial amount for the purchase of the apartment then as per the terms and conditions the OPs were entitled to deduct Rs.4,00,000/- as damages and instead deducted a sum of Rs.2,00,000/- only.  The OPs being reputed builders and valuing their customers’ interest and their associations have only deducted part of the actual deductions.  The complainant had agreed for the said deductions and he was well aware of the said deductions before receiving the remaining advance amount from the OP.  The complainant has agreed for the reimbursement of Rs.14,00,000/- only, through his e-mail dated 08.08.2013.

The complainant has suppressed the material facts and has deliberately misled this Forum with malafide intention for making unlawful gain for himself and has not come before this Forum with clean hands.  The OPs have replied to the legal notice got issued by the complainant and the copy of the said reply notice together with postal receipts are produced. 

For the aforesaid reasons, OPs pray for dismissal of the complaint with exemplary cost.    

4. On the rival contentions of both the parties, the points that arise for our determination are as under:

5. The complainant to substantiate the allegations made in the complaint filed his affidavit by way of evidence.  He also filed his written arguments.  The OPs to substantiate their contention raised in their version filed the affidavit of one Mr.Raunak Kinger, Authorized Signatory of M/s Cinoti Builders and Developers.  Written arguments were also submitted on behalf of OPs.

6. Heard arguments advanced by learned advocate appearing for both the parties.  Perused the allegations made in the complaint, the averments made in the version of OPs, the sworn testimony of both the parties and various documents filed by the respective parties.

7. Our answers to the above said points are as under:

REASONS

8. For the sake of brevity and to avoid repetitions, point Nos.1 & 2 have taken up together with discussion.

9. Admittedly the complainant agreed to purchase an apartment bearing No.1042-Type.B in one of the projects of the OPs under the name and style “Cinoti Allure” by making application dated 11.07.2013.  On the date of booking apartment the complainant made payment of Rs.5,00,000/- as booking amount.  Subsequently as admitted by the OPs, the complainant has made further advance of Rs.11,00,000/- towards the first instalment.  Thus the complainant has advanced a total sum of Rs.16,00,000/- towards booking of the above mentioned apartment.

10. The complainant in the complaint alleges that he was compelled to cancel the booking of the said apartment made with the OPs for the reason that the OPs started demanding excess money from what they had initially agreed.  Therefore, he communicated the OPs.1 & 3 orally stating that he would not be continuing with them in purchasing the aforesaid apartment.  This cause made out by the complainant for cancellation of booking of the apartment is seriously disputed by the OPs.  It is vehemently denied by the OPs that they ever demanded any excess amount from the complainant than initially agreed, at any point of time and the said allegations made by the complainant is false, frivolous and also mischievous.  In their version, the OPs pointed out the relevant paragraph of the legal notice dated 27.10.2013 got issued by the complainant wherein it has been specifically mentioned that due to some problems the site on which the complainant was dependent for money could not be sold as the intended purchaser of the site went absconding at the final moment.  Therefore the complainant could not arrange for money to buy the flat from the OPs therefore with great regret and dissatisfaction he was to make up his mind to cancel the booking.  The learned advocate also referred to the copy of the e-mail dated 08.08.2013 sent to the OPs by the complainant wherein he has mentioned the actual cause for cancellation.  The relevant portion of the said e-mail is as under:

“It is with an almost unimaginable amount of pain, that I regret to inform you that I would like to cancel my booking of the 4^th floor, B-type house at the Cinoti Allure.  The extent of the pain stems from the fact that I had already seen myself living there and had emotionally invested myself into the property.  This, I hope you agree, has been very evident in my enthusiasm in parting with more than just the booking amount of Rs.5 lakhs, where in I gave you Rs.11 lakhs more for buying extra time; A lakh more than the agreed amount, partly in faith and partly as a gesture of my commitment.

The decision to cancel did not come easily, rather it has been thrust upon me by unforeseen circumstances, that I’m still in the process of enduring.  The chunk of the money for buying the house had to come from a land that my mother owned in Kerala.  And although at the time of the booking a person had promised to buy the land, in the last few weeks he has gone absconding.  And hence, I am left with no choice but to withdraw my booking as well”.

11. Thus from the copy of the legal notice got issued by the complainant to the OPs and from the contents of the e-mail reproduced supra it is crystal clear that the cause for cancellation of the booking of the apartment by the complainant is not the alleged demand of excess money by the OPs but because of his inability to arrange for payment of the balance amount of the first instalment.  Thus, it is evident that the complainant has deliberately suppressed the real cause for cancelling the booking and has invented a false ground only for the purpose of filing this complaint.  As rightly argued by the learned advocate for the OPs that the conduct of the complainant in making false allegations against the OPs by suppressing real cause for cancellation deserves to be condemned.     

12. It is pointed out by the OPs that the complainant deliberately did not produce the pages containing terms and conditions appended to the unit application form submitted by him wherein it is provided that the OPs are entitled recover 25% of the total agreement value in event the applicant decides to cancel the booking and if the said request of the complainant is considered/approved by the OP.  The clause No.14 of the terms and conditions which is relevant clause provided for forfeiture of 25% of the total amount value is as under:

The applicant(s) state that in case they decide to cancel the unit, and if the same is Considered/approved by CBD, then CBD is entitled to recover 25% of the total agreement value, interest accrued and administrative chares, if any, at the time of cancellation applicants shall be liable to pay all taxes, duties and statutory levies of whatsoever nature and that the taxes, duties and statutory levies paid by the applicants cannot be refunded by CBD.  After cancellation, CBD is entitled to allot and sell the undivided share in the land and the unit to any other person and on such terms and conditions as CDB deems fit, and to repay the applicant(s) the balance amount, if any, within twelve weeks from the date of resale without any interest.

The applicant(s) agree that in case CBD decides to not go ahead with the project for any reason whatsoever, such decision of CBD shall be final and building and cannot be disputed.  In such an event, CBD will refund the amount paid by the applicant(s) allottee (s) without any interest or compensation within three months or such other extended time from the date of decision of CBD not to execute the project.

13. It is argued on behalf of complainant that the copy of the terms and conditions produced by the OPs is got up document and has been produced only for the purpose of this case and to defeat the claim of the complainant.  It is pertinent to note here that the complainant did not deny that the unit application form submitted by him contained the terms and conditions.  He did not specifically deny that he was not provided with the terms and conditions along with the application form for booking of the said apartment.  We don’t find any reasons to believe that the terms and conditions which is appended with every unit application, the copy of which is produced by the OPs, is either created or got up by the OPs for the purpose of this case.  It is known to everybody that whenever a booking of flat is made and an agreement is entered for purchasing a flat from a builder and developer such agreements are governed by set of terms and conditions.  The parties to the agreement are governed by the terms and conditions of the agreement.

          14. As stated above in view of one of the terms and conditions the OPs are entitled to recover 25% of the total agreement value and administrative charges, if any taxes, duties and other statutory levies if already paid by the OPs.  In pursuance of the said provision in fact the OPs were to deduct Rs.4,00,000/- out of Rs.16,00,000/- advanced by the complainant towards first instalment.  However, taking a liberal in view of the circumstances under which the complainant is cancelling the booking the OPs instead of Rs.4,00,000/- have forfeited only Rs.2,00,000/-.  This has been communicated to the complainant through one of their e-mail dated 08.08.2013, the copy of which is produced.  In response to the e-mail sent by the OPs, the complainant himself has sent an e-mail to the OPs wherein he has agreed for reimbursement of Rs.14,00,000/-.  The relevant para in the e-mail sent by the complainant reads as under:

                    “Anyway, I agree for the 14 Lakhs reimbursement.  Could you please give me a post-dated cheque dated 11-10-2013 by tomorrow.  I could come to your office and collect it any time that you feel comfortable”. 

          15. Thus from the e-mail dated 08.08.2013 sent by the complainant to the OPs goes to show that the complainant was very well aware of the forfeiture clause contained in the terms and conditions regarding the booking of the flat and also accepted the reimbursement of Rs.14,00,000/- out of Rs.16,00,000/- paid by him.  The complainant once having accepted Rs.14,00,000/- from the OPs now cannot allege that he was not aware of the forfeiture clause and without his knowledge or consent the OPs have forfeited Rs.2,00,000/- out of Rs.16,00,000/- paid by him.  If at all the complainant was not aware of any forfeiture clause and if at all he was not agreeable for forfeiture of Rs.2,00,000/-, certainly he would have raised his objections in the e-mail dated 08.08.2013 sent by him to the OPs.  The tenure of the e-mail communication of the complainant goes to establish that not only he was aware of forfeiture clause but he also agreed to receive Rs.14,00,000/- out of Rs.16,00,000/- paid by him.

          16. In view of the above discussions made, we are of the clear opinion that the complainant is making false allegations against the OPs in regard to the deduction/forfeiture of Rs.2,00,000/- by them.  The OPs in pursuance of the forfeiture clause, as reproduced supra are legally justified in forfeiting Rs.2,00,000/- out of Rs.16,00,000/- paid by the complainant.  Therefore, we are of the opinion that absolutely there is no basis for the allegations made by the complainant that OPs have forfeited Rs.2,00,000/- illegally or to harass him for having cancelled the booking.  Further the OPs have made it clear in their e-mail dated 08.08.2013 that in the event the applicant changes his mind or want to hold back the apartment or purchases any apartment in future projects of the OPs they may consider of adjusting the said amount of Rs.2,00,000/- for his benefit.  The manner in which the OPs have responded to the request of the complainant for cancellation of the booking of the apartment certainly shows their liberal and generous attitude towards the complainant and further it shows their concern towards their customers.

          17. In view of the discussions made above in the paragraphs, we have no hesitation to hold that the complainant has come up with this false complaint only with an intention to make unlawful gain for himself and to harass the OPs.  The complainant instead of being thankful to the OPs for having forfeited lesser amount than provided in the terms and conditions has chosen to file this complaint by making false and frivolous allegations against the OPs.  Therefore, we are of the opinion that the complaint filed by the complainant is liable to be dismissed with adequate cost to be paid by the complainant to the OPs.

          18. In the result, we proceed to pass the following:

O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is dismissed.  Complainant is directed to pay costs of Rs.5,000/- to the OPs for having filed false and frivolous complaint against them.

The complainant shall comply with the order passed by this Forum within six weeks from today.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 14^th day of August 2015)

MEMBER                             MEMBER                      PRESIDENT

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