Date of filing: 25.04.2018 Date of Disposal: 12.05.2023
BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU – 560 027.
DATED THIS THE 12TH DAY OF MAY, 2023
CONSUMER COMPLAINT NO.727/2018
PRESENT:
SRI.RAJU K.S,
1) B.M. Mahanthesha Patil,
S/o. Patil Mahanth Goud,
Aged About 58 years,
Residing at No.06, Block No.26,
SBM Colony, Vivekanandanagar,
2) M.Ashwini,
D/o. B.Mahanthesha patil,
Aged About 28 years,
Residing at No.06, Block No.26,
SBM Colony, Vivekanandanagar,
(Complainant No.1 & 2 are rep by
Sri. Varadaraj R. Havaldar, Advocate)
- V/s -
1) M/s. Prestige Estates Projects
Limited, A company registered under
The Companies Act, 1956,
Having its Office at No.1,
Falcon House, Main Guard
Cross Road, Bangalore-560001.
2) Mr. Pawan Kumar,
Sales Executive,
M/s. Prestige Estates projects Limited,
Having its Office at No.1,
Falcon House, Main Guard
Cross Road, Bangalore-560001.
3) Mr. Guruprasad.N,
Manager, M/s. Prestige Estates
Project Limited, Having its
Office at No.1, Falcon House,
Main Guard Cross Road,
(opposite party No.1 to 3 are rep. by
Sri.Mohumed Sadiqh B.A, Advocate)
//JUDGEMENT//
BY SRI. SHIVARAMA K, PRESIDENT
01. The complainants have filed this complaint under section 12 of the Consumer Protection Act, 1986 seeking for a direction to the opposite parties to pay the consolidated amount of Rs.2,47,572/- with interest at the rate of 18% per annum and such other relief as this Commission deems fit in the circumstances of the case.
02. Complainant No.2 is the daughter of complainant No.1. Opposite party No.2 & 3 are the officials of opposite party No.1. It is not in dispute that, opposite party No.1 does the business of real estate and developer and building construction. Further it is not in dispute that, the complainants have paid a sum of Rs.2,00,000/- in favour of opposite party No.1 on 16.08.2006 to have a residential flat to be constructed by opposite party No.1. Further it is not in dispute that, the total sale consideration was of Rs.88,84,960/-. Further it is not in dispute with regard to email correspondence in between the parties. Further it is not in dispute that, the complainant had issued legal notice dated: 01.12.2016 vide EX.P.3 and legal notice dated: 03.12.2016 vide EX.P.8. Further it is not in dispute that, opposite party had returned a sum of Rs.22,300/- after deducting 2% on the sale value of the flat.
03. It is the further case of the complainants that, they had blocked the flat in 03 BHK Unit No.5152 in PBTB-Tower measuring 1611 Sq. ft. and not booked the flat for allotment. Further the complainants were not satisfied with the legal right of opposite party No.1 to the project land and there was breach of sanctioned plan. Thereby the complainants decided not to culminate the factum of blocking the said apartment in to booking of the same. Further the complainants thought of to cancel the blocking of the flat and even in-spite of request been made and a notice been sent through advocate the opposite parties neglected to refund the amount of Rs.2,00,000/-. Hence the complaint came to be filed.
04. It is the further case of the opposite parties that, as there is no deficiency of service or unfair trade practice this forum has no jurisdiction to entertain the complaint. Further on 15.08.2016 the complainants have booked the apartment and had signed the booking form on 17.08.2016. Further the project has no any legal issues and all the necessary approvals were obtained from the designated authorities. Further if the complainants want to cancel the booking, the 2% cancellation fee will be applicable as per Clause-7 of booking application form terms and conditions. Further by deducting the cancellation charges refund has been made thereby there is no deficiency of service and sought to dismiss the complaint.
05. To prove the case, complainant No.1 (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P.1 to EX.P.10 documents. The opposite party No.2 & 3 have filed their respective affidavits in the form of their evidence in chief and got marked EX.R.1 to EX.R.3 documents.
06. Counsels for both the parties have filed their respective written arguments.
07. The points that would arise for consideration are as under:-
(1) Whether there is deficiency of service on the part of the opposite parties?
(2) Whether the complainants are entitle for the
relief sought ?
(3) What order ?
08. Our findings on the aforesaid points are as follows:-
POINT NO.1:- In affirmative
POINT NO.2:- Partly affirmative
POINT NO.3:- As per the final order
for the following:
REASONS
09. POINT NO.1:- The complainant No.1 (PW.1) and opposite party No.2 & 3 have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.
10. It is the contention of the learned counsel for the opposite parties that, opposite party No.1 had a legal right and there was no any defect in the title and the construction was as per the sanctioned plan, hence the burden is heavily casted on the complainants to prove the allegations made. It is the contention of the learned counsel for the complainant No.1 & 2 that, the complainants were not satisfied with the legal right of opposite party No.1 to the project land and there was also breach of sanction plan, hence the complainants were not interested to purchase the flat and sought to cancel the booking of the flat. To substantiate that, there was defect in the legal right of opposite party No.1 in the project plan and there was breach in sanctioned plan, the complainants did not produce any documents and not established the said fact. Hence the complainants have failed to prove the said fact.
11. It is the further contention of the learned counsel for the complainants that, the complainants have only blocked the flat and no booking has been made. It is the contention of the learned counsel for the opposite parties that, EX.R.1 booking application form itself indicates about the booking of the flat. On perusal of EX.R.1 it appears that, the complainants have booked the flat in No.5152 for a total sale value of Rs.88,84,960/-. EX.R.1 itself indicates that, the same is booking application form. The complainants did not produce any document to say that, he has only blocked the flat and not booked. The oral evidence of RW.1 & 2 coupled with EX.R.1 is sufficient to hold that, the complainants have booked for the aforesaid flat.
12. It is the further contention of the learned counsel for the complainants that, since the complainants did not book to purchase the flat rather only blocked the same by paying Rs.2,00,000/- as per Clause-7 of the booking application, opposite parties are not entitle to recover the cancellation fee at 2% of the sale value. It is the contention of the learned counsel for the opposite parties that, as per booking application conditions opposite parties are entitled to levy 2% cancellation charges on the sale value.
13. On perusal of EX.R.1 booking application form in clause-7 it appears that, cancellation fee of 2% of the sale value will be applicable until the agreements are executed. Admittedly agreement of sale has not been executed in this case. The booking was done on 15.08.2016. EX.P.1 is the letter dated: 13.09.2016 addressed to opposite party No.2 stating that, the complainants were not interested in buying flats and sought for refund of the amount. In the said letter the letter dated: 30.08.2016 is referred. EX.P.10 is the said letter dated: 30.08.2016 addressed by the opposite parties to the complainant. In which opposite party demanded the complainant to pay the balance sale consideration.
14. Further EX.P.2 is the letter dated: 17.10.2016 addressed by the complainant to opposite party seeking for refund the amount paid. Ex.P.3 is the copy of the notice dated: 01.12.2016 issued by the complainant seeking for refund of the advance amount paid. Ex.P.5 is the letter dated: 27.02.2017 issued by the complainant No.1 seeking for refund of the amount. On perusal of the letter it appears that, within 01 month from the date of booking of the flat the complainants sought for refund of the amount. No doubt clause-7 in the booking form comes in the way of the opposite parties for refund of the entire amount. We feel since within 01 month the complainants have sought for cancellation of the booking of the flat, the levying of 2% on the sale value is unfair and one sided and an unilateral one and it amounts to deficiency of service within the meaning of Section 2(g) of the Consumer Protection Act, 1986 and unfair trade practice within the meaning of Section 2(4) of the Consumer Protection Act, 1986. The opposite parties have adopted unfair method to deduct 2% of the sale value. Hence we answer this point in affirmative.
15. POINT NO.2:- The complainant claimed for a direction to pay a sum of Rs.2,47,572/-. Admittedly the opposite parties have returned a sum of Rs.22,300/- through cheque dated: 16.01.2017 vide EX.P.4. We feel the complainants are entitle for refund of Rs.1,77,700/-. The complainants claimed interest at the rate of 18% per annum from the date of complaint till the date of payment. We feel the said rate of interest is highly exorbitant one.
16. Further the complainant also claimed interest of Rs.9,872/- calculated at the rate of 18% per annum on Rs.1,77,700/-. We feel since the complainants have sought for refund within 01 month the complainants are entitled for interest @ 9% per annum from the date of payment till realization. Further even though the complainants have claimed there was delay in payment of Rs.22,300/- also. Hence the complainants were in anticipation of payment from the opposite parties and suffered mental agony for that the complainants are entitled for a sum of Rs.15,000/- towards mental agony.
17. Further the act of the opposite parties made the complainant to get issued the legal notice and to approach this commission. Hence the complainants are entitled for a sum of Rs.10,000/- towards litigation expenses. Hence we answer this point partly affirmative.
18. POINT NO.3:- In view of the discussion made above, we proceed to pass the following:-
ORDER
The complaint is allowed in part.
The opposite party No.1 to 3 are jointly and severally liable to pay a sum of Rs.1,77,700/- with interest at the rate of 9% per annum i.e., on Rs.2,00,000/- till return of Rs.22,300/- and from the said date on Rs.1,77,700/- till realization and to pay a sum of Rs.15,000/- towards mental agony and a sum of Rs.10,000/- towards litigation expenses.
The opposite parties shall comply the order within 30 days. In case, the opposite parties fail to comply the order within the said period, the above said amount of Rs.25,000/- carries interest at the rate of 9% p.a. from the date of order till realization.
Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.
Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.
(Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 12th Day of MAY 2023)
//ANNEXURE//
Witness examined for the complainant side:
Sri.Mahantesha Patil, the complainant (PW-1) has filed affidavit in the form of his evidence in chief.
Documents got marked for complainant side:
- Copy of letter dt.13.09.2016 – Ex.P.1
- Copy of letter dt.17.10.2016 – Ex.P.2
- Copy of legal notice dt.01.12.2016 – EX.P.3
- Copy of the cheque bearing No.011571, dt.16.01.2017 for a sum of Rs.22,300/- - EX.P.4.
- Copy of the letter dt.27.02.2017 – EX.P.5
- Hard copy of email dt.16.08.2016 – EX.P.6
- Copy of letter dt.17.10.2016 – Ex.P.7
- Copy of legal notice dt.03.12.2016 – EX.P.8
- Postal receipt – EX.P.8(a) to EX.P.8(f).
- Copy of letter dt.27.07.2017 – EX.P.9
- Letter dt.30.08.2016 – EX.P.10.
Witness examined for the opposite party No.1 side:
- NIL -
Documents got marked for the Opposite Party No.1 side:
- NIL –
Witness examined for the opposite party No.2 side:
Sri. Pawan Tahalramani, Senior Sales Manager in opposite party No.2 (RW) has filed affidavit in the form of his evidence in chief.
Documents got marked for the Opposite Party No.2 side:
- Copy of Booking application form – EX.R.1.
- Copy of email – EX.R.2.
- Certificate U/s 65(B) of the Indian Evidence Act – Ex.R.3.
