Complainant by filing this complaint has submitted that complainant with an intention to purchase one flat from the op submitted an application by paying such requisite application money of Rs.1,02,575/- and thereafter complainant was allotted a Flat No.E3-501 and also paid Rs.5,60,930/-.  Thereafter complainant tried to arrange for bank loan for the purpose of balance payment.  But in the meantime op intentionally posted a letter dated 06.08.2011 to the previous address of the complainant and cancelled the agreement and whimsically issued a cheque of Rs.1,29,086/- against refund of loan amount arbitrarily.  Though in the mean time complainant paid Rs.6,63,498/- and in fact op intentionally and deliberately cancelled the agreement of the complainant arbitrarily without giving any opportunity or scope to the complainant.

          Thereafter complainant requested severally to refund the deposited amount to the complainant challenging the decision of cancellation of the agreement of the complainant and op though received those letters but did not pay any heed and being aggrieved  complainant for negligent and deficient manner of service of the op and for whimsical decision of the op nos. 1 & 2 this complaint is filed praying for refund of the deposited amount of Rs.6,63,498/- along with interest and after deducting Rs.1,29,086/- which has already been released.   

          On the other hand ops by filing written statement submitted that no doubt allotment was made and fact remains that ops received Rs.1,02,575/- as application money including service charge of Rs.2,575/- and further received Rs.5,60,924/- by a cheque dated 02.01.2012 as allotment money including service charge and it is also admitted that Flat No.E3-501 of the 5^th Floor of the Tower E3 together with right to use one free open car parking space was issued by allotment letter dated 06.01.2012.  But anyhow complainant failed to comply the terms and conditions of the allotment and accordingly in terms of allotment letter the complainant was required to make payment of a sum of Rs.21,99,483/- including service tax being 90% of the cost of the Flat and car parking space together with other dues on or before 20.02.2012.

          But even after reminder made by the op on 14.03.2012 complainant did not comply the same.  Thereafter complainant was again requested to clear the overdue payment ofRs.21,99,483/- which was sent by email dated 28.03.2012.  Further op sent reminder notice on 05.04.2012 to the complainant for payment of overdueamount by 20.04.2012 and even after issuance of final reminder notice dated 20.04.2012 complainant did not comply and for which as per terms and conditions of the agreement, op cancelled the booking made by the complainant against non-payment of dues and after adjustment of deductions in terms of the General Terms & Conditions as accepted by the complainant and thereafter op refunded the balance amount to the complainant by its letter dated 31.07.2012.

          So, in the above circumstances, op actually acted as per terms and conditions.  There was no whimsical arbitrarily decision on the part of the op and there was no fault on the part of the op for which the complaint should be dismissed.

Decision with reasons

          In fact in this case complainant has prayed for refund of the deposited amount of Rs.6,63,498/- after deducting already refunded amount of Rs.1,29,086/- that is a sum of Rs.5,34,412/- and also compensation and interest over the said amount for negligent and deficient manner of service and for adopting unfair trade practice and no doubt after considering the written version of the op as filed by the ops, it is proved that complainant paid initially Rs.1,02,575/- along with application for allotment of the flat and that amount was deposited to the ops on 16.11.2011 vide Receipt No.5557 and out of that amount Rs.1,000/- was advanced for the allotment of flat No.E3-501 Rs.2,500/- service tax, Rs,50/- Education Cess and Rs.25/- higher education cess.  So, it is clear that out of the paid initial payment of Rs.1,02,575/-, Rs.2,575/- was charged as service charge which was paid on 16.11.2011 which is admitted by the op.

          Further vide Receipt No.5958 dated 04.01.2012 complainant paid Rs.5,60,924/-.  But anywhere it is not noted out of thesaid amount what is the service charge.  But truth is that op received the same on 04.01.2012.  So, apparently it is proved that complainant paid total Rs.6,63,498/- in between 16.11.2011 to 04.01.2012 and thereafter on 06.01.2012 allotment letter was given allotting the present flat being No.E3-501 at 5^th Floor of Tower E3 and in the said allotment letter about installment payment plan is noted wherefrom it is found further total sum is payable to the extent of Rs.3,14,120/- wherefrom Rs.6,63,498/- shall be deducted.  So, balance amount is shown payable to the extent of Rs.24,78,622/-.  But peculiar factor is that in the application there is no such averment what was the fixed price of the said flat.  But it is a mandatory for any contract regarding purchase of any flat by any intended purchaser, the total amount in respect of the flat shall be disclosed otherwise contract is incomplete.

          Fact remains that complainant was not intimated about the actual/final amount or fixed amount of the flat at the time of filing application and no doubt as per contract act it is one kind of deceiving the purchaser of the flat and such sort of act on the part of the op is no doubt an unfair trade practice.  Another factor is that the first payment was made along with application by the complainant on 16.11.2011and second amount was paid on 04.01.2012 and i.e. total Rs.6,63,498/-.  But it is peculiar that as per agreement op expressed that it will take sometime to complete the flat for handing over possession and that period is fixed lastly on 31.03.2013 or not later than 31.03.2012.  But fact remains up to 06.08.2012 the flat was not completed and there was no information to the complainant that the flat was ready and complainant may get it.  Then under what circumstances op cancelled the said allotment.  Though op has tried to say that complainant has failed to pay the amount.  But the said assertion is completely false in view of the fact in his letter dated 06.08.2012 it is specifically mentioned “forced cancellation”.  Then it is clear by force allotment was cancelled by the op.  Then it is illegal act on the part of the op.

          Another factor is that complainant was not aware of the total amount of the flat at the time of filing application and in fact in the General Terms & Conditions the valuation of the flat was not noted, not even it was not noted in the application form.  Then it is clear that placing the complainant is in darkness,ops collected the amount to the extent of Rs.6,63,498/- and thereafter sent allotment letter in which about installment payment it is noted.  But no information or letter was sent to the complainant informing what the actual price of the said flat is.  But that was actually reported along with the allotment letter and for which complainant was surprised and astonished when complainant prayed for bank loan.  But in the meantime op by his letter dated 06.08.2012 forcibly cancelled the same and that is proved from their letter for using such word “REF ---- Force cancellation” and such an act on the part of the op is no doubt unfair trade practice and it was done arbitrarily.

          Undisputed fact is that it was forced cancellation.  Then under any circumstances, op cannot deduct any amount in respect of the deposited amount except service charge of Rs.2,575/- out of total deposited amount of Rs.6,63,498/-.  On the ground at the time of deposited amount of Rs.5,60,293/- there was no question of service charge.  But it is peculiar that op deducted Rs.2,575/-, Rs.70,990/- and also Rs.73,565/- as service charge.  Further deducted balance total amount but it is provision of law that in respect of advance amount no service charge can be charged and entire advance amount cannot be forfeited by the op company and it is settled principle of law that the entire advance amount shall be returned if forced cancellation is made by the op company.

          When op/company did not inform to that effect that flat has been completed and possession would be delivered so complainant to deposit the balance amount.  But that was not position of the op at that time.  So, in the above situation we are convinced to hold that the entire act on the part of the op tantamounts to unfair trade practice and there is no legal right on the part of the op to deduct entire amount and refund the meager amount of Rs.1,29,086/-. 

          But another factor is that the present op in the meantime received huge amount from 3^rd party purchaser and allotted the same for getting more profit.  Then it is clear that the force cancellation was made by the op for the purpose of selling the flat at present higher market rate about Rs.45 lakhs that means op enjoyed the interest of Rs.6,63,498/- for about 9 to 10 months and thereafter by force cancellation of allotment was made in favour of the complainant and then op has sold away the same to 3^rd party at higher rate in the range of Rs.40 to 45 lakhs as it is submitted by the complainant cannot be disbelieved and it is the moral of Real Estate Business and in such a fashion particularly such sort of dishonest Real Estate business men are earning more money by deceiving the middle class people who have intended to purchase by depositing Rs.5 or 6 or 10 lakhs etc and after that they are getting allotment letter. 

          Another factor is that in this case at the time of application of agreement the actual valuation of the flat was not disclosed and it is another practice of the Real Estate business men.  But there is none to check or control such sort of unfair trade practice.  But in this case it is proved that ops have adopted unfair trade practice and it is their business to cancel the allotment forcefully of the allottees when they find that some amount can be acquired by selling the same in the market to 3^rd party and that has been adopted in this case and in fact there is no question of loss for force cancellation rather force cancellation is always adopted by the dishonest Real Estate Business men for the purpose of selling flat at higher market rate for more profit and in this case by selling the flat op earned huge profit.

          So, in the circumstances the deduction of Rs.5,34,412/- out of Rs.6,63,498/- is completely beyond the legal provision and for adopting unfair trade practice and dishonest practice the complainant is entitled to get back the entire amount of Rs.6,63,498/- and if already complainant encashed Rs.1,29,086/- in respect Cheque No.002975 dated 13.07.2012 in that case said amount shall be deducted and thereafter balance amount of Rs.5,34,412/- shall be refunded to the complainant along with compensation of Rs.1,00,000/- to the complainant for harassing and also for forcefully cancelling the said allotment and further for adopting unfair trade practice.

          In the result, the complaint succeeds when complainant has proved all sorts of over act of dishonest business practice and unmerchantable businesspratice including unfair trade practice as practiced by the ops.

          Hence, it is

ORDERED

          That the complaint be and the same is allowed on contest against the ops with cost of Rs.10,000/-.

          Ops are directed to refund the deposited amount of Rs.6,63,498/- and if Rs.1,29,086/- is found encahsed by the complainant in that case op shall have to refund Rs.5,34,412/- along with Rs.1,00,000/- for adopting unfair trade practice and for harassing the complainant and for illegal forcefully cancellation of the allotment and for getting more profit by selling the same to 3^rd party by the ops and the said amount shall be paid to the complainant by the ops just within 15 days from the date of this order failing which ops shall have to pay damages @ Rs.700/- per day till full satisfaction of the decretal amount.

          For adopting unfair trade practice and unmerchantable practice op shall have to pay punitive damages of Rs.50,000/- to be paid to this Forum for controlling and checking the present Real Estate Business for adopting unfair trade practice by the ops.

          Ops are directed to comply this order positively within the stipulated period failing which penal action shall be taken against them by starting a proceeding u/s 27 of C.P. Act 1986 and for that reason also further penalty may be imposed to the extent of Rs.10,000/- each against each op.