Date of Filing:18.06.2009<br /> Date of Order: 21.12.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 21ST DAY OF DECEMBER 2009<br /> <br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 1416 OF 2009<br /> <br /> Amthul Mohsin<br /> C/o. Farruq Ameen<br /> E-5 WMS Compound<br /> BSNL Telecom Quarters<br /> Jayanagar V Block<br /> Bangalore 560 041 Complainant<br /> V/S<br /> M/s Green Valley Builders<br /> No. 82, K.V. Layout 30th Cross<br /> 4th Block East, Jayanagar<br /> Bangalore 560 011 Opposite Party<br /> <br /> ORDER<br /> By the President Sri S.S. Nagarale<br /> <br /> This is a complaint filed by the complainant stating that she has booked a flat with opposite party and paid in all Rs. 12,00,000/-. The total cost of flat was Rs. 36,00,000/-. Due to some personal reasons she requested for cancellation of allotment of flat and requested the opposite party for refund of the amount paid. On the request of the complainant, opposite party refunded Rs. 11,02,560/- through cheque. Opposite party company has not executed any agreement. Complainant had issued notice to issue balance amount of Rs. 97,440/- for which opposite party has given vague reply. Complainant is a retired official and invested her hard earned money. Opposite party unnecessarily harassing the complainant.<br /> 2. Notice issued to opposite party. Opposite party put in his appearance through advocate. Defence version filed admitting that the complainant has paid Rs. 12,00,000/- for booking a flat. The opposite party has paid VAT and service tax of Rs. 72,720/-. As a good gesture opposite party did not forfeit any amount from Rs. 12,00,000/-. However, deducted expenditure of Rs. 97,440/- incurred by the opposite party on account of payment of VAT, service tax and alterations carried out. Accordingly, opposite party paid back sum of Rs. 11,02,560/- by way of cheque in full and final settlement. Therefore, the opposite party requested to dismiss the complaint.<br /> 3. Affidavit evidences of complainant and opposite party are filed. Respective parties have filed documents.<br /> 4. I have gone through the pleadings, affidavits and documents.<br /> 5. The points for consideration are:<br /> 1. Whether the complainant is entitled for refund of Rs. 97,440/-?<br /> 2. Whether the complainant has proved deficiency of service on the part of opposite party?<br /> <br /> 6. It is admitted fact that the complainant had booked flat with the opposite party. The total cost of the flat was Rs. 36,00,000/-. Out of that it is admitted fact that complainant has paid Rs. 12,00,000/- to the opposite party. Complainant due to her personal reasons requested for cancellation of allotment of flat and requested the opposite party to refund Rs. 12,00,000/- and on her request the opposite party company refunded Rs. 11,02,560/- by way of cheque. This is also an admitted fact that complainant wants refund of balance amount of Rs. 97,440/-. To this opposite party has taken defence that the opposite party has paid VAT and service tax. After deducting the said amount the opposite party has refunded Rs. 11,02,560/- through cheque. Therefore, the opposite party requested to dismiss the complaint. The opposite party has produced Form VAT 120 composition tax return under the VAT Act, 2003. In respect of this document VAT of Rs. 4,000/- is shown against the name of complainant Amthul Mohsin. The opposite party produced challan to show that the amount has been deposited to the Commercial Tax Department. Including amount of complainant and other members total amount of Rs. 18,000/- was deposited to the Commercial Tax Department. The opposite party has produced another form VAT 120. In this document Rs. 8,000/- is shown towards VAT against name of Amthul Mohsin. The opposite party has produced another form VAT 120. In this form Rs. 36,000/- is shown against the name of the complainant towards VAT at 4%. The opposite party has produced another document which goes to show that Rs. 2,060/- is paid towards service tax against the name of complainant and another document is produced by opposite party to show that Rs. 18,540/- has been paid as service tax against name of complainant Amthul Mohsin. The opposite party has also produced tax payers counter foil. In this way the total VAT and service tax paid by the opposite party against the name of complainant comes to Rs. 68,600/-. The opposite party has deducted Rs. 97,440/- out of Rs. 12,00,000/- received from the complainant. Undoubtedly, the opposite party has paid Rs. 68,600/- towards Vat and service tax. The opposite party has to refund still Rs. 28,840/- to the complainant. There is absolutely no reason on the part of opposite party to retain this amount. The opposite party is relying on the letter dated 07.01.2009 wherein it is stated that amount of Rs. 11,02,560/- is paid through cheque and there is no further claims and any amount due. This letter is admittedly not executed by complainant. The letter dated 07.01.2009 is drafted and written by the opposite party himself. Therefore, that letter is not binding on the complainant. The opposite party without any reasons cannot withhold Rs. 28,840/- which legally payable to the complainant. The defence of the opposite party that it has paid VAT and service tax is accepted but the total amount paid towards service and VAT tax comes to Rs. 68,600/-. Therefore, it is just, fair and reasonable on the part of the opposite party to refund Rs. 28,840/- to the complainant immediately without any objections. Since, the opposite party has not refunded the entire amount due or repayable to the complainant this amounts to deficiency in service. Complainant being the ‘Consumer’ under the Consumer Protection Act her interests should be protected. The Consumer Protection Act is enacted to safe guard the better interests of the consumers. Complainant submitted that she is a retired official and invested her hard earned money and requested for passing orders directing the opposite party to refund the balance amount. There is substantial merit and substance in the submissions made by the complainant. In the result I proceed to pass the following:<br /> ORDER<br /> 7. The complaint is allowed. The opposite party is directed to refund Rs. 28,840/- to the complainant. The complainant is also entitled for 9% interest p.a. on the above amount from the date of filing of complaint till payment / realisation. The opposite party is directed to pay costs of Rs. 1,000/- to the complainant.<br /> 8. The opposite party is directed to comply the above order within 30 days from the date of this order and send the amount to the complainant directly by way of pay order / D.D. with intimation to this forum.<br /> 9. Send the copy of this Order to both the parties free of costs immediately. <br /> 10. Pronounced in the Open Forum on this 21ST DAY OF DECEMBER 2009. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> MEMBER MEMBER<br />