BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 07/01/2011

Date of Order : 31/07/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 13/2011

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :-

On 17-01-2007, the complainant entered into an agreement with the opposite party for construction of apartment No. EE 602 and for purchase of the 0.166% undivided share in 5 acres 21.12 cents of land in Kakkanadu Village. A total amount of Rs. 6,40,600/- was paid by the complainant to the opposite party. The said agreement could not be proceeded with by the parties. Thereafter upon mutual understanding, the amounts paid by the complainant thereunder was adjusted towards cost of another apartment as a case of re-booking, since the earlier specific agreement was cancelled by the opposite party effective January 2009. Though the complainant had been fairly proposed to pay reasonable interest on the delayed payment to continue with the performance of the new apartment, the opposite party was neither ready for the same nor to return the amount paid stating that they were entitled to forfeit huge amounts being 85% of the total construction cost. The complainant is entitled to get Rs. 8,20,189/- being the amount of Rs. 6,40,000/- paid under the above agreements in advance and Rs. 1,79,589/- as the interest thereon @ 10% p.a. from the respective date of payment till 31-12-2010 together with future interest @ 10% p.a. and costs of the proceedings. This complaint hence.

2. The version of the opposite party is as follows :-

The complainant and the opposite party entered into an agreement on 17-01-2008 to purchase f;lat No. EE 602 in the project of the opposite party by name 'Purva Eternity' at Kakkanadu. The said booking was cancelled on 11-07-2008. On cancellation of the agreement, the opposite party would be entitled to retain 15% of the total cost, which was Rs. 5,10,383/-. The complainant requested for re-booking of another apartment and an amount of Rs. 6,40,600/- was transferred to the new unit. The complainant failed to remit the subsequent instalment amounts, instead he approached the opposite party seeking refund of the entire amount. The opposite party was forced to cancel the agreements. The complainant and the opposite party are bound by the terms of the agreement. The present complaint is barred by limitation. The complainant is not entitled to get any of the reliefs as prayed for.

3. The complainant was examined as PW1 and Exts. A1 to A4 were marked on his side. The witness for the opposite party was examined as DW1 and Exts. B1 to B10 were marked on their side. Heard the counsel for the parties.

4. The points that arose for consideration are as follows :-

1. Whether the complaint is barred by limitation?

2. Whether the complainant is entitled to get a sum of Rs. 8,20,129/-?

3. Whether the opposite party is liable to pay costs of the proceedings?

5. Point No. i. :- The opposite party vide Ext. A1 letter dated 03-01-2009 intimated the complainant that the opposite party was constrained to forfeit the amount invested by the complainant. Thereafter, the complainant preferred a complaint before the Taluk Legal Services Authority, Kanayannoor on 30-04-2010 and the proceedings ended on 08-10-2010. Though the cause of action started to run from 03-01-2009, the period spent before the Legal Services Authority has to be excluded for the calculation of the limitation period. In that view of the matter, the complainant filed the complaint in this Forum within 2 years as contemplated in Section 24 A of the Consumer Protection Act.

6. Point No. ii. :- The following issues are not disputed by the parties :

1. The opposite party and the complainant entered into Ext. B4 agreement for sale of a 3 bed room apartment bearing No. 602 of the residential complex of the opposite party by name 'Purva Eternity'.

2. The opposite party and the complainant entered into Ext. B5 construction agreement dated 17-01-2008.

3. An amount of Rs. 6,40,600/- was paid by the complainant to the opposite party towards advance sale consideration.

4. The opposite party and the complainant mutually agreed to cancel Exts. B4 and B5 agreements.

5. The opposite party and the complainant entered into Ext. B6 agreement for sale and Ext. B7 construction agreement on 01-10-2008 for sale of another 2 bed room apartment bearing No. 602 in the same complex by adjusting the previous advance consideration of Rs. 6,40,600/-.

6. The opposite party cancelled the booking and forfeited the advance sale consideration stating default in paying the balance sale consideration evidenced by Ext. B2 letter dated 03-01-2009.

7. According to the complainant, the opposite party was neither ready to accept the delayed payment with interest nor to return the amount paid. He maintains that he is entitled to get refund of Rs. 8,20,129/- with interest @ 10% p.a.

8. The opposite party maintains that they have repeatedly intimated the complainant asking him to make good the defaulted amounts in which the complainant failed. According to them as per the terms of the initial agreements, since the complainant failed to pay the subsequent amounts, they are entitled to forfeit the advance amount and they did so. By relying on the decision rendered by the Hon'ble Apex Court in Managing Director, Maharashtra State Financial Corporation & Ors. Vs. Sanjay Shankara Mamarde AIR 2010 SC 3534, the learned counsel contended that since the complainant is a defaulter right from the beginning he is estopped from pleading deficiency in service on the part of the opposite party.

9. Admittedly, the complainant failed to pay the subsequent installments towards the sale consideration for his own reasons, though later on he expressed his willingness to go by the conditions of belated payment. Now, the only question is whether the forfeiture of the advance amount by the opposite party is legal or not. In reply to the interrogatories filed by the complainant, the opposite party stated that as per the construction agreement the cost of construction is Rs. 1,500/- per sq.ft. During evidence, the witness for the opposite party who was examined as DW1 categorically stated that the present price of the apartment is Rs. 2,590/- per sq.ft. So it is evident that the opposite party has not sustained any loss, because of escalation of price per square foot in the said premises. Since the opposite party has not sustained any monitory loss, there is no question of any liquidated damages as per Clause 5 (b) in Ext. B4 agreement. If the averment of the opposite party is taken on face value in spite it would amount to a blatant disregard and desertion of the well laid doctrine of natural law and justice in as much as 'memo cum alterius detrimento protest' which estopes the opposite party from enriching themselves unduly at the cost of the complainant the adage has found its rightful place in the relums of law since Pax Romana.

10. In the light of the above, we feel the ends of justice would adequately be met by directing the opposite party to refund the advance sale consideration with interest.

11. Point No. iii. :- We cannot found any deficiency in service on the part of the opposite party, so we are not to consider the payment of costs of the proceedings in view of the decision of the Hon'ble Supreme Court in the above referred case.

12. In the result, we partly allow the complaint and direct that the opposite party shall refund the advance amount of Rs. 6,40,600/- with 10% interest p.a. from the date of complaint till realisation. No order as to costs.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 31^st day of July 2012.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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