BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
C.C.No.96 OF 2011
Between:
Mr.A.Pavan Kumar
Flat No.406, SMR Majestic
Sikh Road, Bowenpally,
Secunderabad
Complainant
A N D
M/s Lanco Hills Technology Park Pvt. Ltd.,
# 565, Phase-III, Road No.92,
Jubilee Hills, Hyderabad
rep. by its Director, Company Affairs
Mr.V.Sreenivas and Director Mr.Pochender
Opposite party
Counsel for the Complainants M/s K.Visweswara Rao
Counsel for the opposite party M/s N.Manohar
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
THURSDAY THE TWENTIETH DAY OF DECEMBER
TWO THOUSAND TWELVE
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The complaint is filed seeking for return of the amount `18,00,000/- with interest and for `2,00,000/- towards compensation together with costs of `20,000/-.
2. The averments of the complaint are that the complainant in order to purchase flat No. 6LH2101 in 21st floor, Tower 6LH situated at Sy.No.201, Manikonda, Hyderabad paid a total sum of `18,00,000/- on 6.7.2007 and 14.08.2007. The total sale consideration of the flat was `1,23,37,460/-. The complainant opted for shifting to flat no.6LH11503 for which the opposite party company acknowledged its approval. The opposite party informed the complainant that the agreement of sale was ready for execution and as the opposite party had not made construction and the prospectus of the project to the satisfaction of the complainant and the complainant was decided to back up from making further instruction.
3. The complainant informed his opinion to the opposite party company that there was no probable completion of the project. The opposite party terminated the allotment of the flat in the month of May 2008. The complainant requested the opposite party several times with a request to refund the amount. The opposite party assured the complainant that after deduction of cancellation charges the balance amount of rs.18 lakhs would be refunded to the complainant. The opposite party did not refund the amount and the complainant addressed email on 18.8.2009, 15.09.2009, and 22.12.2009 with a request for refund of the amount for which there was no response. The complainant got issued notice through his advocate on 9.11.2009 for which there was no response from the opposite party. Hence, the complainant filed the complaint.
4. The opposite party had filed counter contending that the complainant visited the project site and after satisfying himself with the whole project undertaken by the opposite party he opted for purchase of the flat bearing no.6LH 2101 in 21st floor Tower 6LH situated at Manikonda Hyderabad. It is admitted that the complainant paid a sum of `2.5 lakh on 6.7.2007 and `16,00,619/- on 14.08.2007 towards part sale consideration of the flat.
5. The opposite party issued letter of termination on 31.5.2008 referring to several reminders and mails demanding pending instalments and demanded the complainant to clear the overdue payments and informed him that the allotment would be cancelled without any further notice. The complaint is barred by limitation as the last payment was made on 14.08.2007 and the complaint is filed in the year 2011. The complainant requested for cancellation after termination of the allotment on 31.05.2008. There was no deficiency in service on the part of the opposite party.
6. The complainant has filed his affidavit and the documents Exs.A1 to A11. On behalf of the opposite party company its Director, S.Venkata Rama Reddy filed his affidavit. No documents has been filed on behalf of the opposite party.
7. The points for consideration are:
1) Whether the complainant is entitled to the refund of the amount paid to the opposite party?
2) Whether the opposite party committed deficiency in service?
3) To what relief?
8. POINTS NO.1 AND 2: The complainant paid an amount of `2.50,000/- through cheque bearing No.370570 dated 6.7.2007 for booking of flat no. 6LH2101 in 21st floor, Tower 6LH situated Manikonda, Hyderabad. The receipt issued by the opposite party on 9.7.2007 evidences payment of the amount of Rs.2,50,000/- by the complainant. The opposite party company issued allotment letter on 25.7.2007 referring to the application dated 6.7.2007 submitted by the complainant for provisional allotment of apartment and acknowledged the sum of `2,50,000/- paid by the complainant. It is mentioned in the allotment letter that the amount paid by the complainant does not include corpus fund of `50/- per sft and maintenance fees of `24/- per sft for one year. Thereafter, the complainant paid a sum of `16,00,619/- through cheque bearing No.954583 dated 14.8.2007. Thus the complainant paid a sum of `2,50,000/- plus `16,00619/- totalling to `18,50,619 as part consideration to the complainant. The contention of the opposite parties that the complainant is not filed within the period of limitation has no hold water as the cancellation letter was submitted on 21.01.2009 on which the opposite party endorsement and the complaint is filed on 9.2.2010 which is well within the period of limitation.
9. The opposite party demanded for balance amount of `25,13,531/- towards the instalment amount payable on or before 15.4.2008. The aforementioned amount is mentioned as the balance amount of the first instalment. Thereafter, the opposite party addressed another letter dated 31.5.2008 with a request for payment of the particular instalment amount of `12,94,254/- and the complainant was informed that if the overdue amount is not paid, the allotment would be cancelled without any further notice on or after 10.6.2008.
10. The complainant sent reply mail to the employee of the opposite party company Lakhsmi MS informing her that he did not entered into any agreement with the opposite party; his allotment was terminated by the opposite party in the month of May 2008; he requested for refund of rs.18 lakhs in view of termination of the agreement; he was informed that he has to personally visit the opposite party office to receive back the amount; he signed the relevant documents for cancellation of the allotment in the month of December 2008; the official of the opposite party company informed the complainant that he does not work for the opposite party company and he was advised to speak to Anita and Satish who promised him that the complainant would receive back his money by the middle of May 2009.
11. The complainant addressed another mail to the employee of the opposite party company requesting for permission to meet the GM of the opposite party company for settlement of his dues. The copy of cancellation letter dated 21.1.2009 reads as under:
Due to certain personal reasons i/we are unable to continue with the said booking and therefore request you to kindly cancel my booking without deductions.
I/We hereby declare, that I/we are relinquishing all our rights on the booking of apartment 1505/6LH
We request you to kindly refund the amount submitted towards my booking as per the terms and conditions of Agreement of Sale.
12. On the cancellation, the opposite party endorsed that a sum of `25,000/- would be deducted from the amount paid by the complainant. As the opposite party failed to honour its commitment to refund the amount after deducting a sum of `25,000/-. The complainant in all fairness has requested for refund of the amount as per the terms and conditions of the agreement. The complainant got issued notice on 9.11.2009 referring to the assurance made by the official of the opposite party company that a sum of `18 lakh would be refunded to him. The relevant paragraph of the notice reads as under:
Our client states that our client was informed by your Company that the Agreement of sale is ready for execution, but as our client was not fully satisfied with the construction and the prospects of the Project as assured by your company personnel and the same was brought to the knowledge of your company personnel on which your company personnel advised to back up as such, our client decided to back up from making further investments on the project due to which Agreement of Sale was not entered. Our client states that as such, your company has terminated our client’s allotment in the month of May 2008 and our client states our client has also intimated to your company with regard to the cancellation of the same. Our client states that thereafter our client has been in regular touch with your personnel Ms Laxmi, Shama, Satish, Anita and others through Mails and also by personally visiting your office several times and our client was time and again assured by your personnel that after deduction of the cancellation charges, our client would be refunded the balance amount of rS.187 lakhs. Our client states that basing on the assurances of your company, our client has made several commitments and our client had to endure severe hardship, loss, mental agony, embarrassment and humiliation as our client could not fulfil the said commitments and despite the same being brought to the Notice of your company personnel, they have been callously, negligently and irresponsibly dodging the matter on one pretext or the other from the month of December 2008, which clearly amounts to deficiency of service by your Company.
13. The opposite party company had assured the complainant that in the light of cancellation of allotment opted for, by him as also in view of its terminating the allotment, made an endorsement assuring the complainant that the amount of Rs.18 lakh would be refunded to him. As against what was assured to the complainant, the opposite party company cannot resort to choose alternative remedy to avoid refund of the amount. The opposite party company is estopped from taking any recourse in any manner to avoid payment of refund of the amount to the complainant in terms of its assurance. The opposite party is liable to refund the amount of Rs.18 lakh with interest @ 9% per annum from the date of filing of the complaint.
14. In the result the complaint is allowed directing the opposite party to refund the amount `18 lakhs with interest @ 9% per annum from the date of filing of the complaint till payment together with costs of `5,000/-. Time for compliance four weeks.
MEMBER
MEMBER
Dt.20.12.2012
KMK*
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant for opposite party
NIL NIL
EXHIBITS MARKED
For complainant
Ex. A1 Receipt dated 09.07.2007
Ex. A2 Allotment letter dated 25.07.2007
Ex. A3 Receipt dated 25.07.2007
Ex. A4 Receipt dated 14.08.2007
Ex. A5 Letter from the opposite party dated 24.03.2008
Ex. A6 Letter from the opposite party dated 31.05.2008
Ex. A7 E-mail correspondence
Ex. A8 Cancellation confirmation dated 21.01.2011
Ex.A9 Legal Notice dated 09.11.2011
Ex.A10 Certificate of posting receipt dated 09.11.2011
Ex.A11 Acknowledgement dated 17.09.2011
For opposite party
NIL
MEMBER
MEMBER
