Complaint filed on:23.03.2021 |
Disposed on:29.07.2022 |
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)
DATED 29TH DAY OF JULY 2022
PRESENT:- SRI.K.S.BILAGI | : | PRESIDENT |
SMT.RENUKADEVI DESHPANDE | : | MEMBER |
SRI.H.JANARDHAN | : | MEMBER |
COMPLAINANT | - Shri.Sachin D Patil
-
Aged about 41 years. - Smt.Amitha Patil,
W/o. sachin D Patel, Aged about 40 years. Both are R/at No.A-101, Vaishnavi Paradise, 47th Cross, -
Near Sangam Circle, Bengaluru 560 011. |
(Sri Chandra Naik, T. Adv.) |
|
OPPOSITE PARTY | - M/s Goodhome Realty Limited
A company registered under the provision of Indian Companies act at Peninsula Spenta, Mathuradas Mills compound Senapathi Bapat Marg, Lower Parel Mumbai, Maharashtra 400 013 Rep. by its Director Smt.Dinesh Roopchand Jain. Also at No.46/2, 17th Main Road, Behind Bengaluru Central Mall, J.P.Nagar, 2nd phase, Bengaluru 560 078. (M/s Sastry and Co., Adv.) - Mr.Dinesh Roopchand Jain
Director, M/s Goodhome Realty Limited A company registered under the provision of Indian Companies act at Peninsula Spenta, Mathuradas Mills compound Senapathi Bapat Marg, Lower Parel Mumbai, Maharashtra 400 013 - Mr.Deepak Harishchandra Summanwar (Additional Director)
M/s Goodhome Realty Limited A company registered under the provision of Indian Companies act at Peninsula Spenta, Mathuradas Mills compound Senapathi Bapat Marg, Lower Parel Mumbai, Maharashtra 400 013 - Juthika Jairam Palav (Director)
M/s Goodhome Realty Limited A company registered under the provision of Indian Companies act at Peninsula Spenta, Mathuradas Mills compound Senapathi Bapat Marg, Lower Parel Mumbai, Maharashtra 400 013 - Mr.Chandrashekhar Shrikrishna Ogale (Additional Director)
M/s Goodhome Realty Limited A company registered under the provision of Indian Companies act at Peninsula Spenta, Mathuradas Mills compound Senapathi Bapat Marg, Lower Parel Mumbai, Maharashtra 400 013 |
(OP2 to 5 are Exparte) |
ORDER
SRI.K.S.BILAGI, PRESIDENT
- This joint complaint has been filed by husband and wife against opposite party for the following reliefs
- Direct the opposite party to refund the complainants the sum of Rs.56,00,000/- collected from the complainant together with interest at 24% p.a., from the date of respective payments till the date of realization.
- Direct the OPs to pay a sum of Rs.5,00,000/- towards, travel expenses, mental agony and physical stress and strain suffered by the complainants for the deficiency of service on the part of the OP
- Such other reliefs as this Hon’ble Forum deems fit.
2. The brief facts of the complaint are as follows:
The Complainants were interested to purchase an apartment from the OPs 1 to 5 for sale consideration of Rs.6,70,03,160/-. The complainants paid Rs.11,00,000/- by submitting booking form on 08.06.2019 and another Rs.45,00,000/- on subsequent dates. The complainants have paid in all Rs.56,00,000/- to the OPs.
3. On 25.12.2019 the OPs demanded the complainants to pay 100% of balance consideration. OPs unilaterally forfeited Rs.56,00,000/- and directed to pay additional balance of Rs.7,51,900/-. The letter of the OP dated 31.03.2020 is illegal. The complainant by issuing notice dated 18.01.2021 called upon the OPs to withdraw the cancellation notice and refund of Rs.56,00,000/- with interest at 24% p.a., with damages of Rs.5,00,000/-. The OPs failed to show any progress in the construction. Hence this complaint.
4. In response to the notice, the OP1 alone appears and files version. Despite service of notice OP2 to 5 failed to appear and they have been placed exparte.
5. OP1 contends that the complainants have opproach this commission with unclean hands. The complainants have suppressed the material facts. OP admits receipt of booking form and payment of Rs.56,00,000/-. The complainants failed to comply their undertaking, accordingly OP1 issued pre-cancellation notice to the complainants as per the agreed terms. The forfeiture of Rs.56,00,000/.- by cancelling the transaction is legally correct. There is no deficiency of service on the part of the OP1. OP1 requests to dismiss the complaint.
6. The complainants files affidavit evidence of complainant No.1 and rely on 13 documents. The OP1 has filed his affidavit evidence and 09 documents came to be marked.
7. Heard the arguments of the advocates. Perused records.
8. The following points arise for our consideration is as under:-
- Whether there is deficiency of service on the part of the OP?
- Whether the complainant is entitled to the reliefs sought for?
- What order?
9. Our answer to the above points are as under:
Point No.1:- Affirmative in part.
Point no.2:- Affirmative in part.
Point No.3:-As per the final order.
REASONS
10. Point Nos.1 and 2:. Even though complainants and OP1 have reiterated the facts pleaded in the complaint and version in their affidavit evidence, the documents produced by the complainants and OP1 are not in dispute.
11. At the first instance we would like to refer the admitted facts. Complainants being husband and wife had submitted Ex.P1 booking form dated 08.06.2019 with the OP for allotment of apartment. This booking form contains terms and conditions. To appreciate the contention of either of parties, it is relevant to refer the terms and conditions NO.1 and 6. Which read thus;
Booking is subject to realization of the cheque and payment of balance booking amount payable within 10 days from the date of booking.
This booking is subject to the terms and conditions of such agreement/s which shall be executed on payment of booking amount.
12. It is relevant to note that these terms and conditions are signed by the complainants only. The OP1 has not signed this form, but page No.18 indicates that three persons namely Saurav Verma, Sanjeev Singh and Sanjeev Singh singed this document. This document indicates that agreed value of the flat was Rs.6,35,19,000/-. It further indicates that the complainants were supposed to pay 1.75% as application fee and they were supposed to pay 8.25% on 26th June 2019 i.e., Rs.51,82,093/-. The OP addressed a letter to the complainants on 8th June 2019 that the sales team of OP1 will assist the complainant. Ex.P3 is the another letter of OP1 to the complainants on 10th June 2019, wherein the OP1 admits receipt of Rs.11,00,000/- by means of cheque dated 08.06.2019. It means on the date of submission of booking form the complainants made the payment of Rs.11,00,000/- as stated in para 18 of the document. Ex.P4 is another letter of OP1 dated 12.02.2020 clearly indicates that complainant made payments of Rs.56,00,000/-. But this letter does not indicate the date of payment of Rs.45,00,000/- by the complainants to OP1.
13. This case is proceeded by Ex.P5 notice dated 18.01.2021under which complainant called upon the OPs to refund Rs.56,00,000/- with interest and compensation of Rs.5,00,000/- . After receipt of legal notice and postal acknowledgement as per Ex.P6, the OPs had issued Ex.P8 reply. Ex.P9 is the bank statement of the complainant which indicates that the complainants made the payment of Rs.11,00,00/- on 11.06.2019 to OP1. It further indicates that the complainants paid Rs.4,00,000/- on 29.06.2019, Rs.5,00,000/- on 29.06.2019, Rs.1,00,000/- on 02.07.2019, Rs.15,00,000/- on 03.07.2019 and Rs.2,00,000/- on 04.07.2019. Even Ex.P9 does not indicate further payment of Rs.45,00,000/-, the date of further payment made by the complainants to OP1. But it is admitted fact that the complainants made payment of Rs.56,00,000/-. As per page 18 of Ex.P1, the complainants were supposed to make payment of Rs.51,82,093/- on or before 20th June 2019 and further payment of Rs.94,38,000/- on or before 15th July 2019.
14. Once again by way of repeation, of terms and conditions of booking form are taken into consideration. According to the first terms and conditions, the booking amount payable from the date of its payment. As indicated above Rs.11,00,000/- was made on the date of booking i.e., on 08.06.2019. Clause 6 of the terms and conditions of the booking form indicates that this booking is subject to terms and conditions of such agreement but no agreement has been executed between the complainants and OPs. Therefore OP was not right in forfeiting Rs.56,00,000/-
15. The complainants also relys Ex.P10 to P13. It is one of the contention of the complainants that the OP1 has sold the agreed flat to the third party. This complaint came to be filed on 19.03.2021. Ex.P10 is the certificate u/s 65B of Indian Evidence Act. Ex.P11 is the copy of the registered sale deed executed by OP1 in favour of Mr.Piyush Agrawal and Mrs. Pooja Agrawal on 02.07.2021 for a sale consideration of Rs.5,71,86,840/- in respect of flat No.1001 of 10th Floor, C Wing. It is admitted facts that the complainants had submitted the booking form in respect of the same apartment. During the pendency of this case, the OPs have sold the same. Ex.P12 is the form of declaration submitted by the purchaser Mr.Piyush Agrawal and Pooja Agrawal in respect of the same apartment. Ex.P13 is the bunch of emails.
16. The OP1 reiterated the facts pleaded in the version in the affidavit evidence and relies eight documents. Ex.R1 is the certificate u/s 65B of the Indian evidence Act. Ex.R2 is the email dated May 11th, 2019 of complainant NO.1 requesting the OP1 for registration in synergy reality. Ex.R2 is the email of OP1 to the complainants which is not in dispute. Ex.R4 and P1 are one and the same document. Even though as per the terms and conditions of condition No.9 of booking form delivery date indicates subject to force measure. But the OP1 has not pleaded the theory of force measure. Ex.R5 is the exchange of communication between the complainants and OP1. OP issued Ex.R6 email to the complainants about the balance amount payable. According to the OP they issued pre-cancellation intimation to the complainant on 25.12.2019 calling the complainants to clear 1005 balance payment within 15 days. Even though OP1 issued final cancellation letter dated 31.01.2020, but the OP never entered into an agreement as per clause 6 of the terms and conditions of the booking form. Therefore OPs were not right in cancelling the booking and forfeiting the amount. It is admitted fact that in response to Ex.R7 legal notice, the OP1 issued Ex.R8 reply. When there is no written agreement between the parties, the OPs were not right in forfeiting Rs.56,00,000/- by issuing free/final cancellation letter. Such act of the OPs amounts to deficiency of service. Therefore complainants are entitle to refund of Rs.56,00,000/- from the OPs.
17. The complainants seek interest at the rate of 24% p.a., on Rs.56,00,000/- with compensation of Rs.5,00,000/-, but there is no privity of contract between the complainants and OPs with regard to payment of interest at 24%. The amount of Rs.56,00,000/- paid by the complainants is lying with the OP1 since June 2009 and July 2019.
18. In view of the decision of Hon’ble supreme Court of India reported in 2022(2)CPR(1) in the matter between Experian developers Pvt. Ltd., -vs- Sushma Ashok Shiroor, it is proper to award interest at 9% p.a., on Rs.56,00,000/- from the date of payments till realization as compensation. Under such circumstances complainants are not entitle for compensation.
19. Point no.3:-. In view of the discussions referred above, the OPs are liable to refund Rs.56,00,000/- with interest at 9% p.a., from the date of payment till realization in the form of compensation. OPs are also liable to pay Rs.25,000/- towards cost of litigation. The complaint requires to be allowed in part. Accordingly, we proceed to pass the following;
O R D E R
- The complaint is allowed in part.
- The OPs shall pay Rs.56,00,000/- with interest at 9% p.a., from the date of respective payments till realization with cost of Rs.25,000/- towards litigation expenses to the complainant.
- The OPs shall comply this order within 60 days from this date, failing which the OP shall pay interest at 11% p.a. on Rs.56,00,000/- after expiry of 60 days from this date till payment.
- Furnish the copy of this order to both the parties and return extra copies of pleadings and documents.
(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 29th day of July, 2022)
(Renukadevi Deshpande) MEMBER | (H.Janardhan) MEMBER | (K.S.Bilagi) PRESIDENT |
Documents produced by the Complainant-P.W.1 are as follows:
1. | Ex.P1: Copy of the booking form dated 08.06.2019 |
2. | Ex.P2: Copy of the letter of OP1 dated 08.06.2019 |
3. | Ex.P3: Copy of the letter of OP dated 10.06.2019 |
4. | Ex.P4:Copy of cancellation letter issued by OP dated 12.02.2020 |
5. | Ex.P5: Copy of our legal notice dated 18.01.2021 |
6 | Ex.P6: Bunch of postal acknowledgement |
7 | Ex.P7: Bunch of postal receipts |
8 | Ex.P8: Copy of reply dated 08.02.2021 |
9 | Ex.P9: Copy of my bank statement |
10 | Ex.P10: Certificate u/s 65B |
11 | Ex.P11: Copy of sale deed dated 02.07.2021 |
12 | Ex.P12: Copy of form of declaration in Form03 |
13 | Ex.P13: copy of bunch of emails at page No.20 to 27 |
Documents produced by the representative of opposite party – R.W.1 :
1. | Ex.R1: Certificate u/s 65B of Evidence Act |
2. | Ex.R2: Copy of email dated 11.05.2019 |
3. | Ex.R3: Print out of booking form of sale |
4. | Ex.R4: Print out of welcome letter dated 08.07.2019 |
5. | Ex.R5: Print out pre cancellation at page No.13 to 20 |
6. | Ex.R6: Print out of fee cancellation notice and final cancellation notice |
7. | Ex.R7 & 8: Legal notice to OP1 and our reply |
8. | Ex.R9: Copy of postal track |
(Renukadevi Deshpande) MEMBER | (H.Janardhan) MEMBER | (K.S.Bilagi) PRESIDENT |