Karnataka

StateCommission

A/1647/2012

M/s. DLF Southern Homes Pvt. Ltd. - Complainant(s)

Versus

Nisheeth Adhikari - Opp.Party(s)

M.S. Raghavendra Prasad

22 Aug 2022

ORDER

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE

 

DATED THIS THE 22^ND DAY OF AUGUST 2022

 

PRESENT

 

SRI. RAVI SHANKAR                         : JUDICIAL MEMBER

SMT. SUNITA C. BAGEWADI              : MEMBER

 

Appeal No. 1647/2012

 

M/s. DLF Southern Homes Pvt. Ltd. Office at 1st Floor, Thapar Niketan, Brunton Road, Bangalore 560025 Rep. by its Authorised Signatory Mrs. Revathy G. (By Sri. M.S. Raghavendra Prasad) V/s	….Appellant
1.  Nisheeth Adhikari      S/o. D.N. Adhikari       2.  Mrs. Bharti Adhikari,      W/o. D.N. Adhikari   Both are R/o. 704, Brigade Gardenia, RBI Layout, JP Nagar, Bangalore 560078   (By Sri. Udaya Shankar)	..…Respondents

O R D E R

 

BY SMT. SUNITA C. BAGEWADI, MEMBER

The OP preferred this appeal against the order dated 20.07.2012 passed in C.C.No.1139/2012 on the file I Additional District Consumer Disputes Redressal Forum, Bangalore.

2. The brief facts of the case are that on 12.03.2011 the complainant Nos. 1 & 2 based on various representation and advertisements made by the OP, made an application for allotment and booked an apartment in “Westend Heights” at New town, DLF BTM extension, Begur Hobli, Bangalore.  The OP executive collected the booking amount of Rs.3,07,740/- vide cheque bearing No.153147 dated 14.03.2011.  It is alleged by the complainants that on repeatedly asking for a copy of application form, the same was emailed on September, which was also only in parts.  The complainant was clear from the beginning that he wanted a down payment plan.  The Complainant No.1 informed the marketing persons of OP that he needed at least 4 months time to arrange the money as he planned to pay in lump sum by taking a bank loan and OP agreed for the same.  Further the complainant No. 1 received a mail on 04.05.2011 from OP demanding that installment payment of Rs.8,95,889/- was due and the due date was on 24.05.2011.  The complainant thereafter kept on sending mails with requests to send copy of agreement of sale and accurate total cost of apartment.  None of the officials of the OP have responded to solve the grievance of the complainants.  The complainants were fed off with the way the OP was conducting its business and process which showed that they were not interested in anything else except collect money from the potential flat purchaser who has only signed the application form.  On 23.06.2011 the complainant actually gave an email notice cancelling the booking and seeking refund of the booking money and refund the amount of Rs.3,07,740/- from the OP.  Inspite of the complainant’s email the OP went on writing to the complainant on 29.06.2011 and 30.06.2011 the OP sent a mail stating that they have imposed delay charges on the total amount payable because the complainant had not paid till 30.06.2011.  Thereafter by an email dated 06.07.2011 for the rebates asked and mutual agreement not to impose delay interest, since, the mistake was from OP, the OP announced revised prices for the apartment which the complainant did not agree to.  When repeated phone calls and emails to the OP was made for refund of booking amount, made up to September 2001, the OP informed the complainant that as per Clause 21 of the application form they would be forfeiting the advance paid by the complainants.  On 15.09.2011 the OP sent a letter to the complainant cancelling the booking and stating that the complainant’s booking amount was forfeited and booking of apartment was cancelled.  The complainant who had paid the booking amount of Rs.3,07,740/- to OP, till date, neither got exact total amount of the apartment nor was any agreement executed and neither he has been refunded the amount paid by him to the OP.  The OP having not provided proper details of the costs of the apartment and also trying to forfeit the advance given to the OP is indulging in unfair trade practice and cheating their customers.  Hence, there is deficiency of service on OP’s side and the complainant being not interested to continue with the allotment of apartment seeks repayment of the entire amount of Rs.3,07,740/- with interest at 18% from the date of receipt of payment to till date. Hence, the complaint.
3.  OP on issuance of notice appeared through his counsel and filed version denying the allegations made by the complainants. 
4. On trial the District Commission allowed the complaint and directed OP to pay Rs.2,46,192/- within 30 days from the date of order, failing which to pay interest at the rate of 12% p.a. along with costs of Rs.2,000/-.
5. Being aggrieved by the said order OP is in appeal.
6. Advocate for appellant filed written arguments on 15.01.2021.  Heard arguments from respondent.
7. Perused the appeal memo and order passed by the District Commission. It is an admitted fact that respondents booked an apartment by paying Rs.3,07,740/- on 14.03.2011 and signed the booking form.  It is also an admitted that the appellant has sent a portion i.e., page 1 to 5 of booking form as there was 18 pages without sign of any party.  It is also admitted fact that there is no any agreement/contract between both parties and it is also admitted fact that appellant resold the apartment to another person for higher price.
8. The allegations of the respondents are that while booking of the apartment they have ticked regarding mode of payment as installments.  However, right from day one respondents were writing to the appellant stating that if they pay lumpsum amount as down payment what will be the rebate they will be getting and also to send copy of agreement of sale and accurate total cost of the apartment.  However, appellant not replied the same, but, sent demand notes for instalments inclusive of service tax.  Hence, respondents have sent letter on 23.06.2011 for cancelling the booking of the apartment within three months from the booking and sought refund of the entire amount paid by them to the appellant. 
9. Per contra, appellant informed the respondents that as per Clause 21 of the application form they forfeited the advance paid by the respondents and cancelled the booking of the apartment and sent letter on 15.09.2011 regarding that.  But, still the amount is remained with the appellant.  If the booking is already cancelled and there is no any contract/agreement between the appellant and respondents, terms and conditions are not applicable to both parties.  After cancellation of the booking it is evident that appellant sold the apartment to another person for higher price and also not returned the amount paid by the respondents to the appellant till today which amounts to unfair trade practice and deficiency in service on the part of the appellant.
10. Perused the order.  Respondents have sent letter for cancellation of apartment.  Accordingly, appellant also cancelled the apartment and sold apartment to other person for higher price.  There is no loss caused to the appellant.  Hence, appellant is liable to return the amount with interest to the respondents.  Appellant cannot keep the amount paid by the respondents with him without any reason, but, District Commission has awarded Rs.2,46,192/- deducting of 20% out of Rs.3,07,740/- towards expenditure/loss caused to OP which was not challenged by the respondents and also not argued on the same.  Hence, it seems that respondents are satisfied with the order passed by the District Commission.  Hence, considering the facts, discussion made here we are of the opinion that order passed by the District Commission is just and proper.  No interference is required.  Accordingly, we proceed to pass the following:

ORDER

The appeal is hereby dismissed.

Amount in deposit is directed to be transferred to the District Commission for disbursement to the complainant.

Send copy of this order to both parties as well as concerned District Commission.

 

MEMBER                                   JUDICIAL MEMBER

 

CV*