BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION :HYDERABAD
C.C.No.18/09
Between:
Shri Neeraj Malik,
S/o.Suresh Chandra Malik,
Aged 35 years, Occ:Business,
R/o.1-2-8/3, Domalguda, Gagan Mal Road,
Hyderabad-500 029. …Complainant
And
M/s.EMAAR MGF Land Ltd.,
Rep. by its Managing Director,
Manikunda Village,Gachibowli,
Hyderabad-500 032. …Opp.party
Counsel for the Complainant : M/s.T.Nagender
Counsel for the opp.party : Ms. Ms.Shireen sethna Baria
C.C.No.19/2009
Between:
Shri Rajesh Malik,
S/o.Suresh Chandra Malik,
Aged 37 years, Occ:Business,
R/o.1-2-8/3, Domalguda, Gagan Mahal Road,
Hyderabad-500 029. …Complainant
And
M/s.EMAAR MGF Land Ltd.,
Rep. by its Managing Director,
Manikunda Village, Gachibowli,
Hyderabad-500 032. …Opp.party
Counsel for the Complainant : M/s.T.Nagender
Counsel for the opp.party : M/s.Shireen Sethna Baria
CORAM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,
AND
SMT. M.SHREESHA, HON’BLE MEMBER
MONDAY, THE THIRTY FIRST DAY OF MAY,
TWO THOUSAND TEN.
Oral Order :(Per Smt. M.Shreesha, Hon’ble Member)
****
C.C.NO.18/09:
The brief facts as set out in the complaint are that the complainant approached the opposite party for purchase of an apartment and filled in the registration form on 17.3.2008 and submits that he requested the opposite party that the flat should conform to ‘Vasthu’ and the opposite party showed the brochure and assured that the apartment/unit no.BH EXCL TC –F06-C2-03/B2 in ‘The Boulder Hills Excelsior’ is as per Vasthu and further assured that at the time of construction the same can be checked by the complainant’s consultant and if he found it to be otherwise, amount will be refunded since it is only a tentative allotment. The complainant further submits that he was not supplied with the terms and conditions along with the registration form and that the price of the said apartment is Rs.1,90,49,206/- and the complainant paid an amount of Rs.28,57,381/- vide two cheques dt.17.3.2008 and 1.4.2008 for Rs.9,52,460/- and Rs.19,04,920/- respectively.
The complainant visited the said construction site and showed his apartment to ‘Vasthu’ experts who opined that the said apartment is Anti-Vasthu. The complainant immediately requested the opposite party to cancel the allotment and refund the money in the month of July,2008. But only in December, 2008 opposite party vide letter dt.12.12.2008 intimated to the complainant that an amount of 10% of the total sale price will be deducted as per clause 7 of the agreement. The complainant submits that as per clause 5 of terms and conditions on acceptance of the registration form the opposite party shall issue allotment letter in two counter parts addressed to the applicants and the applicant shall keep one for his record and return the other on or before 15 days from the date of issue of allotment letter counter signing his confirmation of acceptance for the said allotment. On receipt of the applicant’s countersigned allotment letter the allotment shall be deemed to be conclusive. The allotment was never made conclusive and therefore the opposite party cannot forfeit any amount relying on Clause 7. No terms and conditions what so ever were given to the complainant and no construction agreement whatsoever was executed between the complainant and the opposite party and therefore the question of Clause 7 does not arise. The act of the opposite party in deducting Rs.19,04,920/- out of 28,57,381/- paid by the complainant unilaterally amounts to deficiency in service. The complainant further submits that he is a dealer in car motors and as such a lot of money is held up with the opposite party causing loss of business and he seeks direction to the opposite party to pay the following amounts :
a. amount forfeited by the respondent : Rs.28,57,381-00
b. Loss of interest @ 24% p.a. : Rs. 6,85,772-00
c. Damages for mental agony : Rs.1,00,000-00
d. Legal expenses : 30,000-00
e. Miscellaneous : 10,000-00
_____________
Rs.36,83,153-00
____________
Opposite party filed counter stating that the complainant himself cancelled the allotment of flat on the premise that the flat is not in accordance with ‘Vastu’ and on such ground cancellation of an allotted flat is unknown to law and the complainant is strictly bound by the Clause 7 of the agreement which is as follows:
“The Allottee (s) within thirty (30) days from the date of issue of the standard templates execute the construction agreement and comply with the payment schedule therein to the Developer. Failure to do so shall result in automatic cancellation of the allotment along with forfeiture of Ten (10% Percent of total Sale Price, excluding applicable Registration fee, on account of damages for loss of business opportunity and administrative expenses.”
Opposite party also submits that the complainant is also not a consumer within Section 2(i)(d) of the Consumer Protection Act and further contends that the agreement provides for Arbitration Clause i.e. Clause 21 of the Registration form/Agreement which reads as follows:
“The terms and conditions will be governed and construed under the Laws of India. Any dispute, difference or claim arising out of or in connection with this Registration Form shall be referred to Arbitration by a Sole Arbitrator to be appointed by the Developer and the Applicant(s)/Allottee(s) in accordance with the Arbitration and Conciliation Act 1996, or any amendments or any re-enactments thereof. The Venue of such Arbitration will be at Hyderabad. Subject to Arbitration, the Registration Form including the terms and conditions shall be unconditionally and irrevocably submitted to exclusive jurisdictions of the Courts at Hyderabad.”
The complainant booked the flat no.BH EXCL TC-F06-C2-03/B2 of his own choice and paid registration/booking fee of Rs.28,57,381/- and an allotment letter dt.17.3.2008 was given to the complainant confirming the booking in the Excelsior at Boulder Hills in Tower C Floor 06 Core C2, Unit number 03, Unit Type B2 , 3BHK apartment with an approximate built up area of 2723.13 sq.ft.
The opposite party further submits that the complainant was irregular in payment right from the beginning which is evidenced from the reminder letters dated 3.5.2008, 12.5.2008 & 17.6.2008 . The complainant instead of making payments addressed letter on 12.7.2008 stating that his apartment is not as per ‘vastu’. To maintain a good customer relationship, the opposite party met the complainant and tried to convince the complainant to retain the flat. At the time of registration it was clear from the terms and conditions and para no.7 declaration of the registration form that no amount would be refunded without adhering to the terms.. Hence there is no deficiency in service on their behalf and seek dismissal of the complaint with costs.
The complainant filed affidavit by way of evidence and Exs.A1 to A7 are marked on his behalf and opposite party also filed affidavit by way of evidence and Exs.B1 to B5 are marked on its behalf.
Both sides filed written arguments.
The brief point that falls for consideration is whether there is any deficiency in service on behalf of the opposite party and the complainant is entitled to the relief sought for in the complaint ?
It is the complainant’s case that he approached opposite party on 17.3.2008 for purchase of an apartment in ‘The Excelsior Boulder Hills’ and he was shown the brochure. Apartment no.BH EXCL TC-F06-C2-03/B2 was temporarily allotted to him on payment of Rs.9,52,460/- on 17.3.2008 and Rs.19,04,920/- dt.1.4.2008 totalling to Rs.28,57,381/- out of the total sale consideration of Rs.1,90,49,206/- . It is the case of the complainant that the flat was not confirming to ‘Vastu’ as against the promise made to him and therefore he sought for cancellation of the apartment in July 2008 and demanded refund of the amount with interest, but the opposite party delayed the matter and only on 12.12.2008 intimated that an amount of Rs.19,04,920/- will be forfeited and Rs.9,52,461/- will be refunded relying on clause 7 of the agreement which states that 10% of the total sale price will be forfeited if the allottee within 30 days from the date of issue of the standard templates executes the ‘Construction Agreement’ and does not comply with the payment schedule to the developer . It is the complainant’s further case that no such ‘construction agreement’ was executed between the complainant and the opposite party.
Ex.A1 is the letter addressed by the opposite party to the complainant dt.12.12.2008 stating that they will be constrained to forfeit an amount of Rs.19,04,920/- as per the terms and conditions of the registration form. Ex.A3 is the letter dt.30.1.2009 addressed by the complainant to the opposite party Manager Customer Relations requesting them to refund Rs.28,57,381/- with interest @ 24% from 12.7.2008 on the ground that the complainant has not accepted any terms and conditions. Ex.A4 is a letter dt.28.7.2008 by the opposite party to the complainant cancelling his allotment of unit no.BH EXCL TC F06-C2-03/B2 . Ex.A6 is the registration form executed between the complainant and the opposite party wherein personal details of the complainant and details of the size of the apartment is given. This has been signed by the complainant on 17.3.2008 and para 7 is the declaration.
The contention of the opposite party that the complainant is not a consumer is unsustainable since the complainant herein paid consideration towards flat and is seeking for refund of the amount against cancellation and definitely falls within the definition of Section 2(i)(o) of ‘Consumer’. The contention of the opposite party that the complainant ought to have resorted to Arbitration Clause as per Arbitration and Conciliation Act is unsustainable since in the instant case as the opposite party did not adhere to Section of 8 of Arbitration and Conciliation Act which clearly stipulates that the opposite party ought to have raise this contention prior to filing of the counter which has not been done in the instant case. We rely on the judgement of National Commission in UDAIPUR CEMENT WORKS v. PUNJAB WATER SUPPLY & SEWAGE BOARD reported in I (1999) CPJ 67 (NC) wherein it was held that:
Mere existence of an arbitration clause does not oust the jurisdiction
of Consumer Forum.
It is the case of the complainant that the terms and conditions were never shown to him and he never signed any agreement. We observe from the record that the opposite party filed Exs.B1 to B5 in which Exs.B2 , B3 and B4 are reminder letters dt.3.5.2008, 12.5.2008 and 17.6.2008 requesting the complainant to pay the amounts. Ex.B1 is the brochure which is pictorial and only shows the landscape of the apartment and Ex.B5 is the letter seeking cancellation by the complainant to the opposite party which is dt.12.7.2008. The contention of the opposite party that the complainant has violated clause 7 of the terms and conditions of the agreement and therefore they are entitled to forfeit 10% of the total sale price is unsustainable since they have not filed any documentary evidence in support of their contention that there was a construction agreement which the complainant has signed. There is also no evidence to state that the complainant had signed these terms and conditions. The opposite party has not filed any documentary evidence to establish their case and the agreement has been signed by the complainant wherein the terms and conditions were brought to his notice. Even otherwise Clause 7 reads as follows:
“The Allottee (s) within thirty (30) days from the date of issue of the standard templates execute the construction agreement and comply with the payment schedule therein to the Developer. Failure to do so shall result in automatic cancellation of the allotment along with forfeiture of Ten (10% Percent of total Sale Price, excluding applicable Registration fee, on account of damages for loss of business opportunity and administrative expenses.”
In the instant case the complainant had paid Rs.28,57,381/- and it is not the case of the opposite party that the complainant was due the entire balance amount as on the date of the cancellation i.e. 12.7.2008. Had the complainant paid the entire amount of Rs.1,90,49,206/-, then the forfeiture of 10% can be considered , but in the instant case admittedly the complainant paid Rs.28,57,381/- and the act of the opposite party in forfeiting 10% i.e. Rs.19,04,920/- out of the total consideration of Rs.1,90,49,206/- is arbitrary and amounts to deficiency in service. We also observe from the record that no such Construction Agreement was executed between the complainant and the opposite party and the opposite party did not file any evidence to show that these terms and conditions was signed by the complainant. It is not the case of the opposite party that the entire amount had to be paid on that stipulated date i.e. when the complainant sought for cancellation or that he could have forfeited 10% of the entire amount if the complainant had paid the entire amount. At the most forfeiture could be 10% of what the complainant paid . As on the date of cancellation no notice was issued by the opposite party saying that the entire amount of the balance sale consideration was due from the complainant as on the date of the cancellation i.e. 12.7.2008. The clause of forfeiture is in the nature of penalty and unless the opposite party could prove that the complainant did not pay the entire balance amount as on that stipulated day, the act of the opposite party in deducting such a huge amount from the amount paid by the complainant amounts to deficiency in service. Keeping the Principles of Natural justice and Balance of Equities in view we are of the considered opinion that 10% of the amount paid by the complainant i.e. Rs.2,85,738/- can be deducted by the opposite party and the balance i.e. Rs.28,57,381/- - Rs.2,85,738/-=25,71,643/- is to be refunded to the complainant with interest at 6% p.a. from 12th July,2008 i.e. the date on which the complainant sought for cancellation .
In the result this complaint is allowed in part directing the opposite party to pay Rs.25,71,643/- with interest at 6% from 12th July,2008 i.e. the date on which the complainant sought for cancellation together with costs of Rs.5000/-.Time for compliance four weeks.
C.C.No.19/09:
For the reasons afore mentioned this complaint is also allowed in part directing the opposite party to pay an amount of Rs.28,88,017/- -2,88,802/-=25,99,215/- with interest at 6% p.a. from the date on which the complainant sought for cancellation i.e.12.7.2008 till the date of realization together with costs of Rs.5,000/-. Time for compliance four weeks.
PRESIDENT
MEMBER
Dt.31.5.2010
APPENDIX OF EVIDENCE
Witnesses examined
For the complainant : nil For the opposite party: nil
Exhibits marked on behalf of the complainant in C.D.No.18/09:
Ex.A1: Lr. dt.12.12.2008 of opp.party to the complainant
Ex.A2: Lr.dt.3.2.2009 of opp.party to the complainant .
Ex.A3: Lr. Dt. 30.1.2009 of complainant to O.P.
Ex.A4 :Lr. Dt.28.7.2008 of opp.party to the complainant.
Ex.A5 :Lr.Dt.2.1.2009 of complainant to opp.party
Ex.A6:Registration form issued by opp.party
Ex.A7 terms and conditions with regard to venture of O.P.
Exhibits marked on behalf of the opposite party in C.C.No.18/09
Ex.B1 : Landscape of apartment of O.P.
Ex.B2 : Reminder lr.dt.3.5.08 from opp.party to complt.
Ex.B3 : Reminder lr.dt.12.5.08 from opp.party to complt.
Ex.B4 : Reminder lr.dt.17.6.08 from opp.party to complt.
Ex.B5: Lr.dt.12.7.08 from complt. to O.P.
Exhibits marked on behalf of the complainant in C.D.No.19/09:
Ex.A1: Lr. Dt. 3.2.2009 of opp.party to the complainant
Ex.A2 : Reminder Lr.dt.30.1.2009 of complt. to the opp.party.
Ex.A3 : Lr.dt.2.1.2009 of complt. to opp.party.
Ex.A4 : Lr. Dt. 12.12.2008 of O.P. to the complt.
Ex.A5 : Lr. Dt. 28.7.2008 of O.P. to the complt.
Ex.A6 : Registration form issued by opp.party
Ex.A7 : Terms and conditions with regard to venture of O.P.
Exhibits marked on behalf of the opp.party in C.D.No.19/09:
Ex.B1 :Landscape of apartment of O.P.
Ex.B2 : Reminder lr.dt.3.5.08 from opp.party to complt.
Ex.B3 : Reminder lr.dt.12.5.08 from opp.party to complt.
Ex.B4 : Reminder lr.dt.17.6.08 from opp.party to complt.
Ex.B5: Lr.dt.12.7.08 from complt. to O.P.
PRESIDENT
MEMBER
Pm* Dt.31.5.2010
