BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 09^th DAY OF JUNE 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to provide the documents sought for by him as agreed at the time of booking Villa and in default refund the advance amount of Rs.2,00,000/- paid on 29.05.2012 together with interest @ 18% p.a, compensation of Rs.5,00,000/- with litigation cost.

2. The brief averments made in the complaint are as under:

The complainant booked a Villa, layout developed by the OP known as ‘The Empyrean’ formed in lands situated at Jagadenahalli Village, Chikka Tirupathi and Anchemaskur Villages of Lakkur Hobli, Malur Taluk, Kolar District and paid a sum of Rs.2,00,000/- by way of cheque dated 29.05.2011.  The complainant booked Villa No.Harmonia #780 (new No.548).  The complainant submitted a booking form at the time of booking the said Villa and received a receipt from OP for having paid advance amount of Rs.2,00,000/-.  The complainant thereafter having collected some parental documents in respect of lands on which the OP is developing the said project approached his counsel for verification of title and had obtained a legal opinion which he sent to the OP on 14^th July 2012 asking for certain documents which was sought by his counsel for clearing the opinion.  The OP did not responded to the said mail till November 2012 and also failed to provide copies of documents sought for by the complainant.  That while the complainant was waiting for the documents, OP started threatening the complainant to cancel the booking stating that as per the terms and conditions mentioned in the booking form the complainant is supposed to sign the agreement within 15 days from the date of booking.  The complainant approached the OP and requested him to show the said clause in the booking form and to his shock and surprise the OP has included such a clause in recent booking forms which does not find place in his booking form.  Thereafter, the OP started harassing the complainant and started threatening that there will be a price revision on 15.03.2012 and that the complainant’s booking will be shifted to revised price etc.  However OP failed to provide the documents as sought for by the complainant despite repeated requests.  OP threatened the complainant stating that the complainant has to sign the HBA within 10^th April 2012 failing which the OP will be forced to cancel the booking without any further notice and shall refund the booking amount by deducting the cancellation charges.  At the time of booking the complainant was assured that no cancellation charges will be deducted in case of cancellation.

Despite repeated requests and e-mails the OP failed to furnish the necessary documents sought for by his counsel and started threatening to cancel the booking.  This conduct of the OP amounts to deficiency in service.  The OP neither provided the documents nor made any efforts to refund the advance amount.  That OP instead of providing documents as sought by the complainant sent e-mail dated 08.12.2012 to the complainant stating that the booking Villa will be cancelled unless the complainant enters into an agreement.  The complainant held talks with officials of OP and he was promised that the remaining documents will be provided at an early date.  However, he did not receive any documents.  That the OP got issued a notice dated 19.02.2013 to the complainant through their advocate making certain false allegations, alleging that the complainant is avoiding to sign the HBA since August 2011 and hence the booking is deemed to be cancelled.  The complainant was called upon to submit the original receipt to claim refund of booking amount by deducting a sum of Rs.50,000/-.  Thereafter, the complainant got issued a reply notice dated 01.03.2013 to the OP denying the allegations made against him and calling upon the OP to withdraw the legal notice issued to him and provide the documents sought for by him within 15 days failing which the complainant will be forced to approach the appropriate court of law for recovery of the advance sale consideration with interest.  Further the complainant sought damages / compensation of Rs.5,00,000/- from OP for deficiency in service.  Despite service of notice, there was no any reply from the OP.  Therefore, the complainant is constrained to file this complaint with a prayer to direct the OP either to provide him the necessary documents required for legal opinion or else refund his entire advance consideration amount of Rs.2,00,000/- with interest @ 18% p.a from the date of booking till the date of realization and to pay compensation of Rs.5,00,000/- with litigation cost.

3. In response to the notice OP entered their appearance through their advocate and filed their version denying all the allegations made against them by the complainant and further contended as under:

The OP never assured the complainant that the project will be completed by 30 months.  The said project a large integrated township is being developed in phases and OP is committed to deliver each phase complete with all amenities within 30 months from the date of signing of House Buyers Agreement.  The complainant failed to take any steps for signing the House Buyers Agreement and made full payments for the unit and the matter was dragged for close to 16 months for completing the due diligence and taking a final call as to booking.  The construction of the Villa cannot be started by the OP unless the customer signs the House Buyers Agreement.  The OP is committed to deliver the assurances given to its customers and is already in the process of giving possession to customers who have shown commitment by signing the House Buyers Agreement (HBA) and making timely payments.  No commitment was shown by the complainant and hence question of fulfilling the assurances by the OP does not arise.  The complainant after booking the Villa in June 2011 chose not to take any action except booking and after repeated reminders the first reply by the complainant was given on 17^th April 2012 i.e., after more than 9 months of booking.  Even in that e-mail there was no mention of intention to do the due diligence and the complainant was still in the decision making mode as to proceed for final booking by signing the HBA.  This clearly demonstrates that the only intention of the complainant was to trade in the booked unit and black mail the OP by merely booking the unit and making payment of just the token amount of Rs.2,00,000/-.  The complete correspondence happened between the OP and the complainant clearly shows that it was inaction on the part of the complainant which led to the cancellation of the booking.  The complainant has failed to appreciate the fact that inaction on the part of even a single customer in making timely payments affects the timely completion of allied infrastructure and affects other diligent customers who have shown commitment and are making timely payments.

There has been no change in the booking form of OP after signing the booking form of the complainant.  Further, it is not expected that a customer books a unit and sit idle for period of one year without signing the HBA and making any further payment.  Booking of Villa in a township project is a time bound contract between the builder and the customer and both have to deliver within agreed timelines.  As builder is bound to give timely possession, the customer is also bound to give timely payments in order to enable the builder to complete the construction and provide the possession within the agreed timelines.  There was no promise made by the OP regarding non deduction of cancellation charges.  As regards other customers the HBA is signed within 30-45 days from the date of booking after exercising due diligence by them.  However, the complainant has taken unreasonably long period in causing verification of records that too at the cost of other customer who are suffering because of inaction on his part to make timely payments.  Though he has been provided with necessary documents he is unnecessarily blaming the OP without any basis.  The project launched by the OP has been approved by the renowned Banks/Financial institutions including HDFC and Axis Bank after conducting thorough verification and the Banks are already rendering the services to the customers for obtaining loan for purchasing property in the project.  That the complainant with an intention to have unlawful gain from the OP has filed this false complaint to damage the name and fame of OP.  When the complainant has not shown any inclination to sign HBA in spite of provide apologies the OP caused him a notice cancelling the booking and called upon him to collect booking amount after submitted original receipts.  It has been clearly mentioned in the notice that the balance amount of Rs.1,50,000/- shall be returned to the complainant on submission of the original receipt and booking form.  The OP still abides by its decision.  The complainant is not entitled to any relief much less as sought in the complaint.  Therefore, OP prays for dismissal of the complaint.

4. After the version was filed the complainant was called upon to submit his evidence by way of affidavit.  Accordingly, he filed his affidavit evidence reiterating the allegations made in the complaint.  The OP got filed the affidavit evidence of their authorized signatory Mr.S.Karthikeyan in support of the averments made in the version.  Both the parties have submitted their written arguments apart from producing several documents in support of the respective contention.

5. On the rival contention of both the parties, the points that arise for our determination in this case are as under:

        6. Perused the allegations made in the complaint, averments made in the version, sworn testimony of both parties, written arguments, various documents submitted by both the sides and other materials placed on record.

7. Our answer to the above issues are as under:

REASONS

8.  Admittedly the complainant booked a Villa bearing No.Harmonia # 780 (New No.548) in a residential layout known as “EMPYREAN” developed by OP in the limits of Chikka Tirupathi and Anchemaskur villages of Lakkur Hobli, Malur Taluk, Kolar District.  The complainant booked the said villa by paying a token advance of Rs.2,00,000/- by way of cheque drawn on Citi Bank.  The said cheque has been duly encashed by the OP.  At the time of booking the said villa, the complainant has submitted a booking form.  The copy of which is produced along with receipt for having paid a sum of Rs.2,00,000/- to the OP.

9. The complainant claims that, after collecting some of the parental documents in respect of lands on which the OP is developing the said project he approached a counsel for verification of titles and for obtaining a legal opinion and after getting legal opinion he forwarded the same to the OP on 14^th July 2012 asking for some more documents, which in fact was sought by his counsel for clearing the opinion.  It is pertinent to note here that though the complainant has booked the said villa on 01.06.2011 by paying a advance amount of Rs.2,00,000/- for the first time he approached his counsel for opinion only in the month of July 2012 i.e., after more than a year from the date of booking.  According to OP within a period of 30 to 45 days after booking, the complainant was expected to sign a House Buyers Agreement (HBA) agreeing to make payment of balance amount as per the payment schedule mentioned therein.  It is alleged by the OP that, the complainant has taken unreasonably long period in causing verification of the title deeds etc., and in getting opinion from his counsel.  According to the OP booking of villa in township is a time bound contract between the builder and customer and both have to deliver within the agreed timelines.  As the builder is bound to give timely possession, the customer is also bound to give timely payments in order to enable the builder to complete the construction and provide the possession of the villa within stipulated period.  It is further alleged by the OP that the complainant after having booked the villa on 01.06.2011 by tendering token advance amount of Rs.2,00,000/- never come forward to execute the HBA thereafter and also did not respond to any of their request made to execute the HBA at an early date.

10. As admitted by the complainant himself he has taken more than one year time to verify some of the title deeds he has obtained from the OP.  For the first time complainant sent a e-mail dated 14^th July 2012 asking the OP to provide him certain documents as sought for by his counsel for giving his final opinion.  The complainant did not provide any plausible explanation for the inordinate delay of more than one year in seeking legal opinion from his counsel.  Certainly this inordinate delay on the part of the complainant must have resulted in great hardship to the OP in proceeding with the construction of the said integrated township.  The various e-mail correspondence that have taken place between the complainant and OP goes to show that the complainant has not exercised due diligence in verification of the documents at the earliest even after some of the documents have been provided to him as per his request by the OP.  However, it can be gathered from the said e-mail correspondence that the complainant never expressed his intention to execute HBA despite a format of HBA was sent to him by OP at his request.  Though we find that there is some delay on the part of OP in providing documents but the fact remains that the complainant has sought those documents only after lapse of period of one year from the date of booking.  If at all the complainant was serious enough to verify the title documents he should have done so immediately after booking the villa or at least within a reasonable time from the date of booking.  However for the reasons known to him the complainant has taken his sweet time to verify the title documents.  The complainant did not deny the fact that various Banks/financial institutions such as HDFC, Axis Bank after conducting thorough verification of the records pertaining to the OP have extended their services to various customers for obtaining loan for purchasing villa in the said project.  The OP finally got issued a notice through their advocate cancelling the villa booking made by the complainant and asking him to produce original receipt for receiving the booking amount after deduction of Rs.50,000/- in terms of the booking form.  Even after receipt of the said notice, the complainant has not shown any inclination for execution of HBA.  It appears to us that the OP has decided to cancel the booking made by the complainant after giving him ample opportunity to sign the HBA.

11. From the material placed on record, we don’t find anything in the conduct of OP which amounts to deficiency of service.  According to OP, the said project being large integrated township is being developed in phases and they are committed to deliver each phase complete with all amenities.  Admittedly the development of project would be affected even if one or two customers failed to execute HBA on time and failed to adhere to the payment schedule.  We don’t find any malafide intention on the part of OP in cancelling the booking made by the complainant.  The complainant has failed to prove deficiency of service on the part of OP as alleged in the complaint.

12. In clause-7 of the terms and conditions mentioned in the booking form, the OP has undertaken to refund the entire amount within 10 working days, after cancellation is done within 7 days from the date of booking.  It is further provided that for any cancellation after 7 days the OP will deduct Rs.50,000/- as cancellation charges and refund the balance amount within 30 days from the date of receipt of the cancellation letter.  According to the OP as per the clause-7 of the booking form the complainant is entitled to Rs.1,50,000/- only out of the booking amount of Rs.2,00,000/- paid by him.  Looking to the facts and circumstances existing in the case, we are of the opinion that, the deduction of Rs.50,000/- from the booking amount is on higher side.  In the circumstances of the case, we direct the OP to cause deduction a sum of Rs.25,000/- only and refund a sum of Rs.1,75,000/- to the complainant on his production of original receipts.

13. The order could not be passed within the stipulated time due to heavy pendency. 

14. In the result, we proceed to pass the following:

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is dismissed.  However we direct the OP to refund a sum of Rs.1,75,000/- to the complainant within 10 days of his producing original receipt.  In the circumstances of the case, we direct the parties to bear their own costs.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 09^th day of June 2016)

MEMBER                            MEMBER                    PRESIDENT

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Witnesses examined on behalf of the complainant dated 28.03.2014.

1. Sri.Sivalingam.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 30.04.2014.

1. Sri.S Karthikeyan.  

Document produced by the Opposite party:

MEMBER                            MEMBER                       PRESIDENT

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