BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the day of 30th day of April 2012 Filed on : 09/09/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member
Smt. C.K. Lekhamma, Member
C.C. No.483/2010
Between
Dipu S/o. Seminlal, : Complainant
42/799, K.R. Pankajam road, (party-in-person)
Ayyappankavu, Kochi-682 018.
Now residing at 15 Briarside
road, rep. by Thoppil Narayanan
Radhakrishnan, Thoppil house,
Thodupuzha East P.O.,
Brentry, Bristol U.K.,
And
DLF Southern Towns Pvt. Ltd., : Opposite party
Rep. by Chief Executive Officer, (By Adv. Nithin George,
PDR Bhavan, Palliyil Lane, M/s. Menon & Pai, I.S. Press road,
Foreshore road, Kochi-16. Ernakulam, Kochi-682 018)
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant and his wife had jointly placed order for apartment No. Q.142 a unit with 38HK to the project of the opposite party by name ‘New Town Hieghts DLF-Kakkand’ for a total consideration of Rs. 40,00,000/-. They duly filled out the application form and paid a sum of Rs.4 ,00,000/- towards payment of the first instalment. Believing the representation of the opposite party that the apartment would be completed and handed over by the end of 2009, the complainant placed the order for the same. But the construction of the apartment complex was delayed for reasons of the opposite party unfounded. Due to the lackadaisical attitude of the opposite party the complainant refrained from remitting the scheduled instalments with due caution reasonably so. The opposite party also failed to make a specific demand of the instalments. However recently the opposite party has restarted the construction of the apartment complex. At that juncture the complainant approached the opposite party and expressed his willingness to remit the defaulted instalments though the completion of the project was substantially beyond the scheduled time. The opposite party intimated the complainant that they would allot the flat if the complainant pays an additional amount of Rs. 1,70,000/- over and above the agreed price. The opposite party intimated the complainant that in case the complainant did not comply with the same the initial instalment of Rs. 4,00,000/- would be forfeited. The above act of the opposite party is illegal and untenable. The complainant is entitled to get the apartment for the price agreed between them or in the alternative he is entitled to get the advance amount refunded with interest. Thus the complainant is before us seeking direction against the opposite party either to deliver the flat after receiving the balance amount of Rs. 36 lakhs or to refund the remitted instalment of Rs. 4 lakhs together with costs of the proceedings. This complaint hence.
2. The version of the opposite party is as follows.
This complaint is not maintainable in this Forum. The dispute involved in this complaint is to be adjudicated by a Civil Court or through arbitration, in accordance with the agreement between the parties. There is no deficiency in service on the part of the opposite parties. The opposite party as seller of the apartment is not a service provider and the complainant being buyer of the apartment is not a consumer. The complainant has filed the complaint with a view to derive wrongful gain on false and baseless pleas. This complaint is outside the pecuniary jurisdiction of this Forum since the value of the services in question is much more than Rs. 2,00,000/-. The complainant had booked an apartment for a total sale price of Rs. 41,72,360/- + the IBMS charges of Rs. 79,400/-. The complainant has paid the booking amount which is treated as the earnest money amounting to Rs. 4,00,000/- alone. The opposite party agreed to deliver the possession of the flat within 36 months of the execution of the agreement. The complainant has not yet returned the signed agreement to the opposite party and the complainant failed to remit the further instalments. The complainant and his wife were given the option to make payment as per the construction linked payment schedule and was asked to sent to the opposite party the signed supplementary agreement. But the complainant did not do so. As per the agreement the opposite party is not required to sent reminders or notices to the complainant. In spite of repeated reminders the complainant failed to make any payment further. As per the agreement the opposite party is entitled to forfeit the advance amount. The present complainant devoid of any merit and liable to be dismissed.
3. The power of attorney of the complainant was examined as PW1 and Exts. A1 to A3 were marked on the side of the complainant. The witness for the opposite party was examined as DW1 and Exts. B1 to B23 were marked on the side of the opposite party. Heard the counsel for the parties.
4. The points that arose for consideration are as follows:
i. Whether the complaint is maintainable in this Forum?
ii. Whether the complainant is entitled to get delivery of the flat
or in the alternative to get the advance money refunded?
iii. Whether the opposite party is liable to pay costs of the
proceedings to the complainant?
5. Point No.i. At the outset the opposite party raised the question of maintainability of this complaint in this Forum. This Forum vide order in I.A. No. 440/2011 dated 24-10-2011 rejected the contention of the opposite party that the complainant is not consumer by relying on the decisions rendered by the Hon’ble Apex Court in Lucknow Development Authority V. M.K. Gupta III (1994) CPJ 7 (SC) and Ghaziabad Development Authority V. Balbur Singh II (2004) CPJ 12 (SC). The said order has not been challenged by the opposite party before the appllate authority and the same has become final and in this case uncontroverted.
6. Point No. ii. According to the complainant the complainant and his wife had placed order for an apartment with the opposite party and paid a sum of Rs. 4,00,000/- on 30-09-2008 towards payment of the 1st instalment. It is stated that since the opposite party failed to continue with the construction of the project he did not pay the further instalments. He maintains that he is entitled to get the flat for the amount agreed between the parties or in the alternative he is entitled to get the first instalment refunded. On the contrary the opposite party contents that as per Ext. B10 contract the complainant miserably failed to pay the instalments as per the schedule and as per clause 10 the opposite party is entitled to forfeit the first instalment.
7. Admittedly there is no contract in black and white between the parties incorporating the terms and conditions agreed between the parties. However admittedly the complainant signed in Ext. B10 application form in which the opposite party has stated the terms and conditions of the transaction. Ext. B1 can not be treated as a conclusive contract for the simple reason that the opposite party has not signed in it and admittedly it is only an application to allot a flat which has not been accepted. It is pertinent to note that Ext. B1 is a quasi contract and so the contention of the opposite party that since the complainant failed to comply with the terms and conditions in Ext. B1 they are entitled to forfeit the advance amount as per clause 10 is untenable in law and does not hold water ordinarily or even in law. While going through the entire evidence in this case we can not find any deficiency in service on the part of the opposite parties especially when the opposite party had sent notices to the complainant requesting the complainant to pay the further instalments in which the complainant failed. However at the same time there is no evidence on record to show that the opposite party had completed the construction of the project as claimed by them or any sustainable records substantiating the same. However in due consideration and since unrepudiated doctrine of unjust enrichment, the opposite party is liable to refund the advance amount of Rs. 4,00,000/- to the complainant. It is irrefutably pertinent to note that the opposite party failed to establish any loss or injury sustained by them due to quasi contract between the parties. The opposite parties chose to rely on the following decisions rendered by the Hon’ble apex Court in the following decisions
i. HUDA and Anr. Vs. Kewal Krishnan Goel and Others (1996
(4) SCC 249)
ii. Bharathi Knitting Company V. DHL World Wide Express
Courier Divisions of Airfreight Ltd. (1996 (4) SCC 704)
iii. Villayati Ram Mittal Pvt. Ltd. Vs. Union of India and another
2010 (1)) SCC 532 which does not seemingly have nexus to the case at hand. Hence not relied upon.
8. Point No. iii. This grievances of the complainant having been met squarely promptly law does not unnecessarily favour either a consumer or seemingly a wrong doer. No costs hence.
8. In the result, we partly allow the complaint and direct that the opposite party shall refund Rs. 4,00,000/- to the complainant.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order, failing which the above amount shall carry interest @ 12% p.a. till payment.
Pronounced in the open Forum on this the30th day of April 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 : Copy of notice dt. 10-03-2010
A2 : Reply notice dt. 09-04-2010 A3: : Photos
Opposite party’s exhibits:
Ext. B1 : Copy of application for allotment by sale
B2 : Copy of letter dt. 29-10-2008
B3 : Copy of g-mail dt. 08-03-2009
B4 : Copy of g-mail dt. 19-03-2009
B5 : Copy of letter dt. 16/-07-2009
B6 : Copy of agreement
B7(a) : Copy of demand notice dt. 31/10/2008
B7(b) : Copy of reminder 1 dt.04-12-2008
B7(c) : Copy of reminder II dt. 17/12/2008
B7(d) : Copy of demand notice dt. 31-12-2008
B7(e) : copy of reminder dt. 02-02-2009
B7(g) : Copy of letter dt. 20-11-2009
B7(i) : Demand notice dt. 02-03-2009
B7(k) : Demand notice dt. 09/06/2010
B8 : Copy of letter dt. 28-01-2010
B8(a) : A.D. card
B9 : Copy of letter dt. 28-07-2010
B10 : Application for allotment by sale
B11 : Copy of letter dt. 21-10-2008
B12 : Copy of courier dt. 29-01-2009
B13 : Copy of Statement
B14 : Copy of letter dt. 10-06-2009
B16(a) : Demand notice dt. 10/11/2008
B16(b) : copy of reminder 1 dt. 04/12/2008
B16( c): Copy of reminder dt. 17/12/2008
B16(d) : Copy of demand notice dt. 12-01-2009
B16(e) : Copy of letter dt. 02-02-2009
B16(g) : Copy of letter dt. 20-11-2009
B16(i) : Copy of letter dt. 12/07/2010
B17 : Copy of letter dt. 25-01-2010
B17(a) : Copy of A.D. card
B17(f) : Copy of letter dt. 17-02-2009
B17(h): Copy of A.D. card
B18 : Copy of letter dt. 23-02-2010
B19 Copy of letter dt. 16-07-2010
B19(a) : Copy of A.D. Card
B20 : Copy of delayed interest
B21 : Copy of demand notice dt. 02-03-2009
B22 : Courier consignment note
B23 : Copy of reply notice of the
opposite parties dt. 09-04-2010
Depositions:
PW1: : T.N. Radhakrishnan,
DW1 : Bindu Gigi
Copy of order despatched on :
By Post : By Hand:
