COMPLAINT FILED ON:15.10.2011

DISPOSED ON:11.06.2012

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

11^th DAY OF JUNE-2012

       PRESENT:- SRI. B.S.REDDY                      PRESIDENT                        

                          SRI.A.MUNIYAPPA                             MEMBER

O R D E R

SRI. B.S.REDDY, PRESIDENT

The complainants filed this complaint U/s. 12 of the C.P. Act of 1986 seeking direction against the Opposite Party (herein after called as OP) to refund Rs.9,600/- and to pay Rs.20,000/- towards cost and mental agony in all Rs.9,600/- on the allegation of deficiency in service.

2. The case of the complainants to be stated in brief is that:

The 2^nd complainant is the wife of the first complainant. The complainants entered into an agreement with the  Managing Director of OP for purchasing flat No.137,  Mahaveer Complex, Nyanappana Halli Village, Begur Hobli, Bangalore South Taluk, for Rs.22,50,000/- on 31.05.2010, the first complainant had issued cheque for Rs.20,000/- as booking advance on 06.03.2010 and Rs.1,00,000/- through cheque dt.04.06.2010.    OP has issued the receipts on 06.03.2010 and 04.06.2010.   Due to some trivial problem raised by the LICHF, housing loan sanctioning authority, they could not get the sanction loan amount.    There was pressure from the OP to pay the amount or to leave the agreement.    Therefore on 23.06.2010 the complainants informed OP that they are unable to proceed matter and sought for refund of Rs.1,20,000/-.    The father of the 1^st complainant Sri.Ramesh R Durg approached OP seeking refund of the amount but OP told that until another party comes to buy the flat or the complainants may find some people to buy the flat no refund will be made.   On repeated visits by the father of the complainant No.1 a cheque for Rs.90,000/- was made infavour of the first complainant on 05.07.2010 but the remaining amount has not been returned till date.     The complainants understand that the flat has already been sold to another party for the same consideration, there is no loss incurred by the OP.    The said flat has already been registered on 30.08.2010.    Therefore, the 1^st complainant wrote a letter to the Managing Director of OP to return of Rs.30,000/-.   OP has sent untenable reply stating that Rs.30,000/- is non refundable.    The same was printed on the Booking form of the OP.   There is no law contemplated for deduction of Rs.30,000/-.  It is unfair practice and no service commensurate the sum of Rs.30,000/- has been rendered.    The OP has not incurred any loss but trying to take shelter under the form printed which is against the principles of Trade Practice usurious.   Hence the complaint.

3. On appearance OP filed version admitting that the complainants had entered into an agreement for purchasing the apartment.    A sum of Rs.1,20,000/- was paid by the complainants, which included an amount of RS.20,000/- towards part of Booking Advance.  After taking the loan and entering into the agreement the complainant did not want to comply with the terms of the agreement and construction agreement, committed defaults as per the terms of the said agreements.    The complainants were aware that in case of cancellation a sum of Rs.30,000/- would be forfeited.   Further as per the terms of the sale and construction agreement entire advance amount of Rs.1,20,000/-  requires to be forfeited.   By considering the request of the complainants a sum of Rs.30,000/- was deducted and the balance was paid to them.    OP had sold the said property to 3^rd party.   It is false to state that there is no loss caused to the OP, because the OP was constrained to again market the same flat and incur expenditure and suffered loss on the investment made.     There is no any unfair trade practice the booking apartment specifically mentions that a sum of Rs.30,000/- would be deducted in case of cancellation. 

            The complainants approached OP and intended to purchase the flat No.137 for a total consideration of Rs.27,25,058/-.   Hence paid a sum of Rs.20,000/- on 06.03.2010 though a sum of Rs.50,000/- was to be paid as booking amount.   By considering the financial difficulty the OP booked the flat by accepting the part of booking advance of Rs.20,000/-.    OP had entered into Sale Agreement on 03.06.2010 by which time the OP had invested their amount for completing the apartment on the belief that the complainant would get the loan amount disbursed to the OP from LIC Housing Finance.    The complainant intimated that they do not want to purchase the flat.    At that juncture the OP had already invested their money for construction and hence incurred loss of interest on the investment made.   As per the construction agreement and Sale Agreement, it is specifically agreed upon between the parties that the entire advance amount of Rs.1,20,000/- requires to be forfeited if the sale transaction is not concluded.   The said fact was confronted by the OP to the complainant.   At that juncture the complainant requested the OP not to forfeit the entire amount and submitted that due to some personal loan existing they could not get the loan from LIC Housing Finance and requested to deduct a portion of the amount instead of entire amount.  However, on mutual negotiations the OP agreed to deduct Rs.30,000/- instead of forfeiting the entire amount.   There is no any deficiency in service because the cancellation is from the end of the complainant.   There is no any unlawful trade practice because everything is bound by the mutually agreed contract and the parties are duty bound to honour the solemn agreement agreed into by them.  Hence, it is prayed to dismiss the complaint with exemplary costs.

4. The complainants in order to substantiate complaint averments got filed affidavit of father of the complainant No.1.   The Managing Director and the Authorized Signatory of OP filed affidavit evidence in support of defence version and produced documents.

5. The complainants filed Written Arguments, Arguments on both sides heard.

6.   The points now that arise for our consideration in this complaint are as under:

Point No.1:-Whether the complainants have proved the deficiency in service on the part of the OP?

           Point No.2:-If so, whether the complainants are entitled for the relief’s now claimed?

           Point No.3:-To What order?

7.   We record our findings on the above points:

           Point No.1:-Negative

   Point No.2:-Negative

   Point No.3:-As per final order.

R E A S O N S

8. The complainant No.2 is the Wife of the complainant No.1.  There is no dispute that the complainants entered into an agreement with OP for purchasing flat No.137 Mahaveer Complex, Nyanappana Halli Village, Begur Hobli, Bangalore South Taluk, Bangalore for Rs.22,50,000/- on 31.05.2010.   The complainant No.1 issued cheque for Rs.20,000/- as booking advance on 06.03.2010 and further sum of Rs.1,00,000/- was paid through cheque dt.04.06.2010.   It appears that the complainants could not get loan sanctioned from LICHF, as a result they were unable to proceed further with the agreement by paying the balance consideration.   On 23.06.2010 the complainants informed OP that they are unable to proceed further in the matter and sought for refund of the amount of Rs.1,20,000/- paid.   On repeated visits by the father of the complainant No.1 OP issued cheque for Rs.90,000/- in favour of the complainant No.1 on 05.07.2010 but the remaining amount of Rs.30,000/- was retained.   The complainants claims that the said amount of Rs.30,000/- retained by the Op is to be returned, as the flat for which they entered into an agreement has been sold to other person for the same price, there is no any loss to OP by the complainants canceling the booking.

9. The main defence of the Op is as per the booking form both the parties have agreed that the complainants shall pay the balance amount within 10 days from the date of booking and further the complainants have agreed for payment of 30% of the total cost within 25 days from the date of booking.   In any condition if the complainants cancel the booking, they have agreed for refund of the booking advance after deduction of an amount of Rs.30,000/- within one month from the date of cancellation.   On the basis of this terms and conditions, OP claims that the amount of Rs.30,000/- has been forfeited as the complainants have cancelled the booking of the apartment.   In our view when both the parties have agreed for the terms and conditions of the booking form with regard to payment of balance amount and for deducting the amount of Rs.30,000/- in the event of canceling the booking, the complainants cannot now turn round and claim that they are entitled for refund of that amount of Rs.30,000/-.  Even assuring that OP has not incurred any loss by the cancellation of the booking and the flat has been sold to the same price to the 3^rd party, the complainants cannot take advantage of the same and seek for refund of that amount of Rs.30,000/-.   In case if the complainants were not agreeable to the terms of deducting Rs.30,000/- in the event of cancellation of the booking, they could not have entered into an agreement with OP by paying the amount and booking the flat.

            Clause-10 of the Sale Agreement dt.03.06.2010 provides that if the Purchasers failed to make the aforesaid instalments, it shall be lawful for the Vendors to terminate this agreement.   Consequently the Vendors shall forfeit entire amount paid by the Purchasers.  And in the event of termination, the Purchasers shall have no claim against the Owners or to the said Schedule B and C properties or to the forfeited sums.   Further, the Owners shall be entitled to deal with the Schedule ‘B’ and ‘C’ properties for their benefit.   Any cancellation of this Agreement will result in cancellation of agreement to construct also, which is executed between the parties.  As per Clause-3 of the agreement a period of 20 days is stipulated for execution of the registered sale deed at the request of the purchasers, on payment of the balance sale consideration.   On the basis of these Clauses the learned Counsel for the OP contended that the entire amount of Rs.1,20,000/- could have been forfeited as the complainants themselves cancelled the agreement but however taking into consideration of the condition of the complainants an amount of Rs.90,000/-has been refunded and only Rs.30,000/- has been forfeited.    In our view, strictly as per the agreement of sale the complainants failed to pay the balance consideration, OP could have forfeited the entire amount of Rs.1,20,000/-.   However an amount of Rs.90,000/- has been refunded.   There is no deficiency in service on the part of the OP in forfeiting the amount of Rs,.30,000/- as per the terms contained in the booking form.   Under these circumstances, we are of the view that the complainants are not entitled for any of the relief claimed.   The complaint is devoid of merits, the same is liable to be dismissed.   Accordingly we proceed to pass the following:

O R D E R

The complaint filed by the complainants dismissed.   Considering the nature of dispute no order as to costs.

        Send copy of this order to both the parties free of costs.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 11^th DAY of JUNE-2012.)

MEMBER                                                         PRESIDENT

Cs.