27/01/15
HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT
This Appeal is directed against the judgment and order passed by Learned District Forum, Howrah in case no.CC 44 of 2013 allowing the complaint and directing the OP to refund Rs.1 lakh with interest @ 12% p.a. from 24/04/10 till full satisfaction. The OPs were further directed to pay Rs.50,000/- as compensation and litigation cost of Rs.5000/-.
The case of the Complainant/Respondent, in short, is that the Complainant applied to the OP for allotment of an apartment and had paid a sum of Rs.1 lakh. A provisional allotment letter was issued by the OP in respect of an apartment consisting of three bed rooms measuring super built up area of 1303 sq. ft. on the 4th floor of Tower-2 at Kolkata West Heights. It was agreed that the construction would be completed before the end of 2012. On 05/05/10 the OPs sent a demand letter to the Complainant asking him to pay a further sum of Rs.1,65,812.50 though they did not hand over any document regarding the said project and/or construction. The Complainant made several requests to the OPs asking him to supply the documents of the said project, but to no effect. The Complainant again sent a mail on 17/08/11 asking the OP to send all the documents regarding the construction with the further option for refund of the amount with interest. The OP again sent a letter to the Complainant asking him to clear the outstanding amount of Rs.2,56,812.50. On 01/02/12 the OP sent a letter to the Complainant asking him to pay a sum of Rs.7,33,427/- as dues upto 29/02/12. Being astonished the Complainant wrote a letter to the OP No.2 on 27/02/12. Without getting any document regarding sanction and/or approved sanction plan of the construction the Complainant wrote a letter on 14/06/12 requesting the OP to cancel the allotment of the proposed apartment T-2/4/1 for non-availability of some vital documents as mentioned in the letter and requested the OP to refund the booking amount immediately. The OP had sent a letter informing the Complainant that the entire booking amount of Rs.1 lakh will be forfeited and asked the Complainant to return all the documents. For the said reason, the complaint was filed before the Learned District Forum.
The Learned Counsel for the Appellant has submitted that provisional allotment letter was issued with certain terms and conditions. It is contended that as per terms and conditions in case of cancellation of the allotment by the Complainant 5% of the total price of the apartment would be forfeited. It is submitted that Rs.1 lakh was paid by the Complainant and no further instalment was paid. It is submitted that the amount of 5% is exceeding Rs.1 lakh and, as such, the Complainant/Respondent is not entitled to get back any amount.
The Learned Counsel for the Respondent has submitted that he paid Rs.1 lakh, but the OP did not supply the copies of documents regarding the construction. It is submitted that due to non-supply of documents by the OP, the Complainant had to cancel the allotment of the apartment and asked for refund of the amount paid by him.
We have heard the submission made by both sides. As per terms and conditions under clause 10 in case of cancellation of allotment the Company shall be entitled to forfeit 5% of the total apartment price paid by the allottees along with brokerage and other charges (if any) on account of damages for loss of business opportunities and administrative expenses and shall refund the balance amount without any interest. Provisionally allotment was issued on 05/05/10 wherefrom it would appear that the total apartment price was Rs.25,68,125/-. Evidently, the terms of agreement are binding upon both sides and as the Complainant asked for cancellation of the allotment, the OP/Appellant is entitled to forfeit 5% of the total apartment price as per the terms and conditions. Having regard to the total apartment price as mentioned in the provisional letter dated 05/05/10, it is clear that the Complainant is not entitled to get refund of the sum he had already paid to the OP. As there was no deficiency in service on the part of the OP, the Learned District Forum was not justified in allowing the complaint.
The Appeal is allowed. We set aside the impugned judgment and order. The petition of complaint is dismissed.
