- The complainant has filed the present complaint u/s.35(1) of Consumer Protection Act-2019 against the O.P. builders for return of Rs.60,300/- towards liquidated damages against the cancellation of ATM shop block and thereby claiming refund of Rs.60,300/- alongwith interest @ 18% from 29.9.2020, and Rs.2,00,000/- lac towards mental agony and cost of litigation.
The story in short as under:- - The complainant is a resident of Nagpur, and O.P.No.1 is a registered Corporate company and O.P.No.2 is its director. The complainant has agreed to purchase shop block as well as ATM shop block from O.P.s in SDPL’s Aashraya apartment and has paid the amount in instalments by drawing cheques for the total amount of Rs.1,10,000 towards ATM shop block. However, the complainant was not interested in purchasing the ATM shop block and therefore cancelled the booking, and the amount paid towards the ATM shop block was adjusted towards the purchase of the shop block situated on the ground floor of wing 'A, having a carpet area of 19.05 sq. ft., which is constructed at Kh. 18/03 City Servey. No. 260, Sheet No. 45, and 48 at Dhabha, District Nagpur. The amount of consideration for Shop Block paid to O.P. amounted to Rs. 1,33,820/- and Rs.5,000/- towards security deposits and the expenses for stamp duty therefore, the complainant paid a total amount of Rs. 1,50,000/- before execution of the sale deed and the sale deed came to be executed in favour of the complainant on dated 23.9.2020. The OP’s have illegally collected stamp duty @6% on sale consideration as per ready recknor. However due to the reduction of stamp duty by the government; it was required to pay only 3%. The O.P's failed to refund the excess amount paid towards stamp duty. The complainant also issued e-mail on dated 2.10.2020 for the refund of the excess amount collected by O.P's The O.P's has illegally withhold the excess amount of Rs.60,300/- which was received on account of stamp duty and registration fees out of total amount of Rs.1,33,820/- towards liquidated damages. Withholding the excess amount by the O.P.s and use Unfair Trade Practices which cause legal injury to the complaint therefore complainant constrained to issued the legal notice through advocate on dated 9.11.2020. Therefore the complainant is entitled to refund the illegal charges of Rs.60,300/- recovered by O.P. No. 1 and 2 towards liquidated damages, along with interest and compensation as prayed in the complaint.
- O.P. No. 1 and 2 filed their reply and denied the allegations against them and admitted that the complainant had agreed to purchase shop block and ATM shop block from O.P.s. and paid Rs.11,000/-, and Rs.21,000/- towards booking amount. The O.P's has quoted an amount of Rs.20,82,000/- towards the shop block and Rs.11,30,500/- towards the ATM shop block. The complainant approached the O.P.s to cancel the booking of the ATM shop block without assigning any reason, and the O.P.No.1 agreed the proposal and discount amount offered at the time of booking of both shops amount to Rs.53,300/- will be deducted towards liquidated damages and the same shall be adjusted later on in the consideration amount in case of the complainant purchases ATM shop block in the near future orally. There was only one agreement for booking of both shops. The complainant has made a payment of Rs.19,50,000/- towards the price of the shop block. The O.P.'s submitted that as per clause 1-a of the sale deed, wherein it is specifically mentioned that GST is not payable, therefore question of collection of GST does not arise. The account statement shows that the amount of Rs. 1,33,820/- paid by the complainant towards stamp duty and registration charges includes the amount of liquidated damages. As per the request of the complainant, O.P. No.1 has agreed to adjust the amount of liquidated damages against the purchase of a block of ATM in near future. The O.P.'s further submitted that due to the cancellation of the block for ATM the O.P's who were put more loss and could not sell the shop till date, are ready and willing to sell the block of ATM to the complainant at the same price as agreed on dated 2.7.2020 against the increased prevailing market price. Therefore the complaint filed is a false complaint.
- Advocate Mr.Sharma, learned counsel for the complainant, argued that the complainant has paid the amount of Rs.19,50,000/- for execution and registration of the sale deed, and the sale deed was executed on 23.9.2020, but the O.P.'s has failed to repay the balance consideration amount paid of Rs. 60,300/-, which was illegally charged on account of liquidated charge that was neither mentioned in the agreement nor in the sale deed. Inspite of the issuance of legal notice 9.11.2020 so also the O.P's fail to provide any document that shows a specific amount will be deducted for the liquidated damages for the cancellation of shop block for ATM, and there is no question of giving a discount as the same has not been reflected in the sale deed. The O.P.'s have drafted the unilateral agreement, therefore liable to refund the amount retained towards liquidated damages.
- Advocate Mr. Manish Meshram, learned counsel for O.P.s argued that the complainant has failed to plead the purchase of shops for personal use; therefore, the booking of two shops is for commercial purpose and therefore the complainant is not a consumer. The O.P.’s have offered a huge discount towards the purchase of two shops. The complainant has cancelled the agreement of purchase of a shop block of ATM and for that agreed to pay liquidated damages, and therefore, after adjusting all amounts, the complaint paid Rs.19,50,000/- towards execution of the sale deed. The complainant approached O.P.No.1. requesting to cancel the booking of ATM shop block without any reason but O.P.No.1 agreed to the proposal subject to condition that the amount of discount offered at the time of booking of both shop blocks will be reduced by an amount of Rs.53,300/-, and the same shall be adjudged later on in case of purchase of ATM shop block in the near future. The account statement clearly shows that the amount of Rs.1,33,820/- was paid by the complainants towards stamp duty registration charges, which included an amount of liquidated damages; therefore, the complainant has no merit and is liable to be dismissed with cost.
REASONING - The complainant has made payment of Rs.19,50,000/- towards the price of the shop block, and the sale deed was executed on dated 23.9.2020. The basic dispute between the parties is in respect of the non payment of liquidated damages towards the cancellation of ATM shop block. The O.P.’s have submitted in reply and in argument that it was orally agreed between the parties that the charges of Rs.60,300/- would be payable towards cancellation of ATM shop block and will be adjusted in the near future while purchasing the ATM shop block again for the agreed price of Rs.10,50,000/- within a period of 6 months. The complainant paid Rs.1,33,820/- towards stamp duty, Registration and other chargers for sale deed and the amount mentioned in sale deed is Rs.72,520/- and Rs.1,000/- towards handling document charges out of Rs.1,33,820/- on the other hand there is no written contract to retain the balance amount towards liquidated damages and will be adjusted while purchasing ATM shop again within 6 months in near future , hence the complainant is entitled to receive the balance amount of Rs.60,300/- paid towards registration of sale deed with compensation of Rs.20,000/- and cost of litigation of Rs.10,000/- as per following order.
ORDER - Complaint is partly allowed.
- O.P.Nos.1 and 2 are liable to pay Rs.60,300/- (Sixty thousand three hundred only) towards refund of liquidated damages for cancellation of ATM shop block to the complainant.
- O.P. No.1 and 2 are liable to pay Rs.20,000/- towards compensation and Rs.10,000/- for mental agony and cost of litigation.
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