cccccPBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of November 2012
Filed on : 04/03/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. Nos. 39/2011, 40/2011 and 132/2011
Between
CC. No. 39/2011
Sibi Madathil, : Complainant
Madathil house, (By Adv. Manoj T.N., Asiana
8 Skyline Spring Field Homes, Business Center, St. Alberts
Padivattom, Edapally P.O, High School Lane, Banerji
Ernakulam. Road, Ernakulam. )
And
M/s. DLF Southern Towns : Opposite party
Pvt. Ltd., P.D.R. Bhavan, (By adv. Shyam Prakash,
Palliyil Lane, Foreshore road, M/s. Menon & Pai, I.S. Press,
Cochin-682 016. Ernakulam, Kochi-682 016)
CC. No. 40/2011
Tissu Mary Sunny, : Complainant
Flat No. A-702,
Kanjanjunga Apartments,
Civil Line, Ernakulam-682 025.
And
M/s. DLF Southern Towns : Opposite party
Pvt. Ltd., P.D.R. Bhavan,
Palliyil Lane, Foreshore road,
Cochin-682 016.
CC. No. 132/2011
Jose Thomas Pattara, : Complainant
Villa No. 17, Promenade,
Padivattom, Edapally P.O.,
Ernakulam.
And
M/s. DLF Southern Towns : Opposite party
Pvt. Ltd., P.D.R. Bhavan,
Palliyil Lane, Foreshore road,
Cochin-682 016.
COMMON O R D E R
A Rajesh, President.
At the instance of the complaint vide dated 13-09-2011 order in I.A. No. 52/2011 dated 13-09-2011 this Forum allowed joint trial of the above cases treating CC NO. 132/2011 as the leading case.
2. The case of the complainant in CC 132/2011 is as follows.
Fascinated by the assurances of the opposite party on 03-10-2008 the complainant booked a flat with them in their project by paying Rs. 5 lakhs. Accordingly the opposite party allotted apartment No. C-123 to ;the complainant vide letter dated 05-11-2008. At the time of booking the opposite party agreed to complete the construction of the apartment within 36 months from the date of booking. Since there was inordinate delay in starting the construction of the apartment complex the complainant did not enter into the apartment buyers agreement which decides the right of the parties regulates the future schedule of payments. On 20-11-2009 the opposite party issued a letter to the complainant demanding to pay the outstanding amounts and to complete the formalities of the signing of buyer’s agreement. The complainant sent a reply to the opposite party stating his apprehension that the opposite party is going to abandon the project and requested time for payment of the amount without interest. By letter dated 20-01-2010 the opposite party informed their unilateral decision to re-schedule the payment scheme, which was not acceptable to the complainant. In the absence of an apartment buyers agreement the complainant is not liable to pay further down payments. On 16-02-2010 the opposite party caused a notice to the complainant informing him to pay the amounts and failing which the allotment would stand nullified. Thereafter by notice dated 24-05-2010 the opposite party informed the complainant that they have decided to cancel the allotment and has forfeited an amount of Rs. 7,95,171.52 which is inclusive of Rs. 5 lakhs the booking amount and Rs. 2,93,740.63 the interest towards the delayed payments. The opposite party has no right whatsoever to retain the advance amount with them. Thus the complainant is before us seeking direction against the opposite party to retain Rs. 5 lakhs with interest @ 12% p.a. together with costs of the proceedings. This complaint hence.
3. The complainant in CC No. 39/2011 and in CC No. 40/2011 have raised the very same allegations that of the complaint in CC 132/2011 and claiming refund of the advance amount of Rs. 5 lakhs with interest together with costs of the proceedings.
4. The version of the opposite party in CC No. 132/2011 is as follows:
The complaint is not maintainable in this Forum since the issues raised herein relate to contractual matters arising out of the agreed terms and conditions in the application for allotment. As per clause 29 of the application disputes if any shall be settled through arbitration. The complainant had booked the apartment for a total price of Rs. 51,25,740/- plus the IBMS charges of Rs. 89,950/-. The complainant had paid the booking amount which is treated as the earnest money amounting to Rs. 5 lakhs on 06-10-2008. Allotment becomes final only after the signing of the buyers agreement by both the parties. The complainant was bound to make payments as per the payment plan annexed with the application. As per clause 18 of the application the opposite party is not required to send reminders/notices to the applicants. As per clause 19, the opposite party at its sole discretion may waive the breach of timely payment of the installments provided the complainant pays interest @ 15% p.a. from the delayed payment with 90 days and @ 18% p.a. after 90 days. The construction of the apartment complex was always on schedule and the progress of construction was never halted. The allotment was cancelled only after issuing notice to the complainant. As per clause 17 in the application the opposites party is entitled to forfeit the earnest money. There is no deficiency in service on the part of the opposite party. The complaint is devoid of any merit and is liable to be dismissed.
5. The opposite party filed a separate version in CC No. 39/2011 and in CC NO. 40/2011 raising similar contentions that they have raised in CC 132/2011.
6. The complainant in CC 132/2011 who is the power of attorney of the complainants in CC No. 39/2011 and CC No. 40/2011 was examined as PW1, Exts. A1 to A18 were marked on the side of the complainants. The witness for the opposite party examined as DW1 and Exts. B1 to B29 were marked on the side of the opposite party. The report of the advocate commissioner was marked as Ext. C1. Heard the learned counsel for the parties.
7. The points that came up for consideration are as follows:
i. Whether the complaints are maintainable in this Forum?
ii. Whether the complaints are to be referred for arbitration?
iii. Whether the complainants are entitled to get refund of Rs. 5
lakhs with interest?
iv. Whether the opposite parties are liable to pay costs of the
proceedings to the complainant?
8. Point No. i. At the threshold the opposite party in their version challenged the question of maintainability of these complaints in this Forum. The Forum vide order dated 05-08-2011 found that the complaints are maintainable in this Forum. The order has not been challenged by the opposite party and the same became final. Further discussion in this point does not call for any merit or explanation further.
9. Point No. ii. According to the opposite party as per clause 29 in Ext. B1 to B3 applications for allotment if any dispute arises between the complainant and the opposite party, the same shall be referred for arbitration. The Hon’ble Apex Court even as early as in 1996 held in Fair Air Engineers Vs. N.K. Modi 1996 CTJ 749 (SC) (CP) that despite the provision of arbitration clause in the agreement a consumer can validly opt for action under the Consumer Protection Act. That again goes against the opposite party.
10. Point No. iii. Admittedly the complainants executed Ext. B1 to B3 applications for allotment of apartments in the project of the opposite party by name ‘New Town Heights’. It is not in dispute that the complainants paid a sum of Rs. 5 lakhs each to the opposite party towards booking amount. It is also not in dispute that in furtherance of the application for allotment the parties could not enter into apartment buyers agreement for non compliance of the same on the part of the opposite party which they should have legally done. According to the complainant at the time of application for allotment the opposite party agreed to complete the construction within 36 months from the date of receipt of the advance amount. The complainants contended that Ext. C1 Advocate Commissioner’s Report goes to show that the opposite party failed to complete the construction of the apartment as per their promise. The opposite party maintains that the complainants are bound by the terms and conditions in the application Form for allotment of the flat and as per clause 17 they are not liable to refund the earnest money. Clause 17 in Ext. B1 to B3 read as follows:
“ The Applicant(s) agrees to comply with terms and conditions of the Application and the Agreement failing which he shall forfeit to the Company the entire amount of Earnest Money along with Non Refundable Amounts paid and the allotment/Agreement shall stand cancelled and the Applicant(s) shall be left with no lien, right, title, interest or any claim of whatsoever nature in the Said Apartment and the Parking Space(s) allotted and it is not incumbent on the part of the Company to send reminders/notices to the Applicant(s) in respect of the obligations of the applicant(s) as set out in this Application and/or Agreement. The Company shall thereafter be free to resell and/or deal with the Said Apartment in any manner whatsoever at its sole discretion. The amount(s), if any, paid over and above the Earnest Money, processing fee, Non Refundable Amounts would be refunded to the Applicant(s) by the Company only after realizing such amounts to be refunded from resale but without any interest or compensation of whatsoever nature. The company shall at all times have the first lien and charge on the Said Apartment for all its dues payable by the applicant(s) to the Company.
11. A clear reading of clause 17 would show that this clause is applicable only after the execution of the apartment buyer’s agreement. Where this condition has not been followed up and is hence lacking, so the contention of the opposite party that clause 17 pre-exempts them from guilt does not hold good. It is pertinent to note the definition of Non Refundable Amount” as per Ext. B1 to B3 application which reads as follows:
“Non Refundable Amount” means interest on delayed payments, interest paid, due or payable and brokerage, amounts (to be deducted) if any, paid by the Company to the broker.
None of these apply in the said cases. As per the said clause booking amount is not included in non-refundable amount, which would show that the booking amount is refundable.
12. The Advocate Commissioner visited the site of the apartment complex on 30-09-2011 though the opposite party raised objection against Ext. C1 the report of the Commissioner they have not taken any steps to substantiate the same. Ext. C1 and the appended photographs would show that the construction of the apartment is only in midway if at all. DW1 the witness for the opposite party during evidence stated that even in May 2012 they have not allotted any of the apartments to the prospective purchasers. She further stated that the opposite party has no difficulty in re-selling the flats allotted to the complainants to another to obtain the costs of the same whereby they would not necessarily be put to any monitory loss. The maxim nemo debet locupletari ex aliena jactura (unjust enrichment) squarely applies which lays down the same matter at hand. No law allows a double benefit to the same person at any time at the cost of another the rudiments of which can be read in Pax Romana. There is no reason to find that this again goes against the opposite party.
13. The opposite party relied on the following decisions of the higher judiciary.
a. APSRTC Vs. Raghuda Siva Sankar Prasad (2007) 1 SCC 222
b. Villalyati Ram Mittal RT Ltd Vs. Union of India and another (2010) 10 SCC 532
Which necessary seem to have any relevance relating to the issue at hand.
14. Point No. iii. The primary grievance of the complainants having been met in these proceedings we feel no costs are called for.
15. In the result, we pass the following order.
i. In CC.132/2011 the opposite party shall refund Rs. 5 lakhs to the complainant with interest @ 12% p.a from the date of execution of Ext. B1 application till realization.
ii. In CC.39/2011 the opposite party shall refund Rs. 5 lakhs to the complainant with interest @ 12% p.a from the date of execution of Ext. B2 application till realization.
iii. In CC.40/2011 the opposite party shall refund Rs. 5 lakhs to the complainant with interest @ 12% p.a from the date of execution of Ext. B3 application till realization.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of the order.
Pronounced in the open Forum on this the 30th day of November 2012
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Special power of attorney
A2 : Special power of attorney
A3 : Copy of receipt dt. 13-10-2008
A4 : Copy of letter dt. 03-11-2008
A5 : Copy of cheque dt. 06-10-2008
A6 : Copy of letter dt. 17-12-2009
A7 : Copy of letter dt. 17-112-2009
A8 : Copy of letter dt. 20-11-2009
A9 : Copy of letter dt. 16-12-2009
A10 : Copy of letter dt. 28-01-2010
A11 : Copy of letter dt. 28-01-2010
A12 : Copy of letter dt. 28-01-2010
A13 : Copy of letter dt. 16-02-2010
A14 : Copy of letter dt. 16-02-2010
A15 : Copy of letter dt. 24-05-2010
A16 : Copy of letter dt. 24-05-2010
A17 : Copy of letter dt. 25-05-2010
A18 : Copy of message
Opposite party’s Exhibits : :
Ext. B1 : application for allotment by sale
B2 : application for allotment by sale
B3 : application for allotment by sale
B4 : copy of letter dt. 05 -11-2008
B5 : copy of letter dt. 03-11-2008
B6 : copy of letter dt. 05-11-2008
B7(a) : copy of letter dt. 25-11-2008
B7(b) : copy of letter dt. 16-12-2008
B7(c) : copy of letter dt. 30-12-2008
B7(d) : copy of letter dt. 27-01-2009
B7(f) : copy of letter dt.02-03-2009
B7(g) : copy of letter dt. 25-03-2009
B8(a) : copy of demand notice
dt. 25-11-2008
B8(b) : copy of reminder I
B8(c) : copy of reminder II
B8(d) : copy of demand notice
dt. 27-01-2009
B8(e) : copy of reminder I
B8(f) : copy of reminder II
B8(g) : copy of demand notice
B8(h) : copy of letter dt. 18-02-2011
B8(i) : copy of letter dt. 18-02-2011
B9(a) : demand notice dt. 25-01-2008
B9(b) : copy of reminder dt. 16/12/2008
B9(c) : copy of reminder dt. 30-12-2008
B9(d) : copy of demand notice
dt. 27-01-2009
B9(e) : copy of reminder I
B9(f) : copy of reminder II
B9(g) : copy of demand notice
dt. 25-03-2009
B9(h) : copy of letter dt. 18-02-20011
B9(i) : copy of letter dt. 18-02-2011
B10 : copy of letter dt. 04-05-2011
B11 : copy of letter dt. 18-02-2011
B12 : Copy of letter dt. 18-02-2011
B13 : copy of letter dt. 20-11-2009
B14 : copy of letter dt. 20-11-2009
B15 : copy of letter dt. 20-11-2009
B16 : copy of letter dt. 28-01-2010
B17 : copy of letter dt. 28-01-2010
B18 : copy of lettered t. 28-01-2010
B19 : copy of letter dt. 19-02-2010
B20 : copy of letter dt. 16-02-2010
B21 : copy of letter dt. 16-02-2010
B22 : copy of letter dt. 24-05-2010
B23 : copy of letter dt. 24-05-2010
B24 : copy of letter dt. 24-05-2010
Deposition:
PW1 : Jose Thomas Pattara
