D.O.F. 10.11.2010
D.O.O.03.01.2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K. Gopalan : President
Smt. K.P. Preethakumari : Member
Smt. M.D. Jessy : Member
Dated this the 3rd day of January, 2012.
C.C.No.265/2010
M. Abdul Salam,
‘Masaka’, Salam Plaza, : Complainant
Talap, Kannur
(Rep. by Adv. M. Kishore Kumar)
1. M/s. PVS Apartments
Represented by its Branch Manager,
A. Satheesh Kumar
KA 397/A, B, C, NH 17,
Kannothumchal P.O.,
Chovva, Kannur. : Opposite Parties
2. M/s. PVS Apartments,
Represented by its Managing Partner,
Corporate office, KTC building,
YMCA road, Calicut 673 001
O R D E R
Sri. K. Gopalan, President
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing opposite parties to pay ` 1,00,000 as compensation, to make arrangements for Bank loan, to accept monthly instalments, to execute the purchase agreement with respect to Flat No. II C and the cost of this proceedings.
The case of the complainant in nutshell are as follows : 1st opposite party approached complainant and offered to sell a residential flat developed under the name and style ‘PVS Fortune’ at Kannothumchal, Kannur. According to his representation complainant can book the flat by payment of ` 1,00,000 as advance and the complainant need to pay the balance amount by equal instalments of 20,000 for 26 months. He has also made assurance to arrange a loan of Union Bank of India. The complainant paid ` 1,00,000 to 1st opposite party on 22.09.09 and booked Flat No.IIC at PVS Fortune at Kannothumchal. A temperory receipt was issued and undertook to execute agreement for purchase within one month. But agreement was not executed and instalment of ` 20,000 per month had not been accepted. Loan arrangements had also not been made as assured. Complainant received two letter from 1st opposite party dated 28.10.09 and 20.11.09 directing him to pay ` 6,85,500. This demand was in contrary to the terms and conditions of opposite parties. Complainant sent lawyer notice 30.09.2010 to 1st opposite party directing them to make arrangements to accept instalment amount, to arrange bank loan and to execute purchase agreement. No reply sent by 1st opposite party. Hence no other option but to file this complaint.
Pursuant to the notice opposite parties made appearance and filed version denying the allegations of complaiant as follows : The complainant approached the opposite party and opted an apartment having an area of 1595 Sq. Ft. in the 11th floor and opted car parking facility as well. Opposite party then told him that the cost of the flat would be ` 2200 per Sq. Ft. and car park cost would be ` 1,50,000 together with electricity deposit, KWA deposit, Regulation expenses and other miscellaneous expenses. It was further told that 15% of the total cost should be paid as booking amount and remaining amount will be paid in 29 months instalments. After agreeing to those terms complainant had paid an amount of ` 1 lakh as tocken advance by way of cheque dated 22.09.2009 and assured to comply the terms without fail. Upon the assurance opposite party received the amount ` 1 lakh. After paying the token advance complainant had not paid any amount neither the balance booking amount nor the instalments undertaken to pay. Thereafter 1st opposite party had given letters dated 28.10.09, 20.11.09, 05.12.09, 16.02.10, 09.03.10 demanding him to pay the balance booking amount and the due monthly instalments. Apart from this opposite party had made numerous phone calls but the complainant did not properly attended the same. Thereafter complainant issued a letter dated 19.03.10 to 1st opposite party requesting to refund the amount of ` 1 lakh with interest. After receiving it opposite party informed the complainant that he can collect the amount from the office of 1st opposite party. But complaint did not turned up for receiving the amount. Complainant then sent a lawyer notice on 30.09.2010 incorporating false allegations and claims. On receipt of notice opposite party contacted the complainant over phone and asked him to collect the amount from the office of 1st opposite party at the earliest. The complainant being agreed to collect the amount from the office of 1st opposite party and no reply was sent. The opposite party is not liable to arrange bank loan and to accept the monthly instalments and to execute the purchase agreement with respect to flat No.11 C, since the complainant willfully defaulted in making the payment promptly. Complaint is not entitled for any remedy. There is no deficiency in service on the part of opposite party.
On the above pleadings the following issues have been taken for consideration.
1. Whether there is any deficiency in service on the part of opposite parties?
2. Whether the complainant is entitled for the relief as prayed in the complaint?
3. Relief and cost.
The evidence consists of oral testimony of PW1 and Ext.A1 to A5 marked on the side of complainant. No evidence adduced on the side of opposite party.
Issues 1 to 3 :
Admittedly complainant paid ` 1,00,000 to 1st opposite parties on 22.09.2009 for booking the flat. Complainant’s case is that he paid ` 1,00,000 as per the representation made by 1st opposite party that the complainant can book a flat by payment of ` 1,00,000 as advance and the complaint need to pay the balance amount by equal instalment of ` 20,000 per month for 26 months. 1st opposite party also made assurance to arrange a loan of Union Bank of India. Opposite party on the other hand contended that complainant approached opposite party for an apartment and opted an apartment having an area of 1595 Sq. Ft. (no. 11 C) in the 11th Floor and a car parking facility. The opposite party then told to the complainant that the cost of the flat would be ` 2200 per Sq. Ft. and car park cost would be ` 1,50,000 apart from electricity, KWA deposit and registration charges etc. It was also told that 15% of the total cost should be paid as the booking amount and the remaining amount shall be paid in 29 instalments. It is after fully understanding and accepting the terms complainant has paid an amount of ` 1,00,000 as token advance. But complainant had not paid any amount thereafter. Opposite party had given several letters but complainant did not made any payment. The complainant sent letter to refund the amount. After receiving the letter opposite party had duly informed the complainant that they were ready to refund the amount and to collect the amount from the office of the 1st opposite party. Complainant did not turned up. But sent a lawyer notice demanding to refund the amount and after receiving the same opposite party had contacted the complainant and reiterated the readiness to refund the amount and the complainant agreed to collect the amount from the office of 1st opposite party. So no reply sent.
Complainant adduced evidence by means of chief affidavit in tune with the pleadings. He has stated that 1st opposite party has approached the complainant and persuaded him to purchase a flat. He told complainant that flat could be booked by paying ` 1,00,000 and the rest of the amount could be managed to pay 26 instalments of ` 20,000. It is also assured that loan from Union Bank of India will be arranged to pay the balance amount. Upon the assurance of 1st opposite party complainant paid ` 1,00,000 and booked 11 C number flat. But instead of constituting agreement after receiving ` 1,00,000 opposite party issued a temporary receipt. Ext.A1 is the temporary receipt issued for PVS apartments for ` 1,00,000. It is a fact that opposite party had received ` 1,00,000. But it is also a fact that no agreement was executed by the parties. Except the evidence adduced by complainant there is nothing that facilitate to understand what are the terms upon which opposite party has received the amount. Opposite party has not produced any evidence. Ext.A2 is the letter by opposite party to complainant requesting to make remittance balance booking advance of 15% and also to make payment of first instalment. Ext A3 dated 20.11.09 another letter asking complainant to do the needful for the remittance of the amount of ` 6,85,500 on or before 22nd November, 2009. Any how it is wonderful to see that a letter is written on 20.11.09 to make arrangements to pay a huge amount of ` 6,85,500 on 22nd November, 2009. The length of two days time to remit a huge amount is not merely seems to be unreasonable but it looks an extraordinary business tactics so as to make an impression of perfect dealings. It is very clear that the purpose of the letter is not intended to have the payment on 22nd November. If it was intended so, it should have been issued few days before. Ext.A4 is the lawyer notice. Lawyer notice stated that one of the representatives of opposite parties had approached the complainant and offered to sell a flat and made believe him that he could book a flat by payment of `1,00,000 as advance and he need to pay `20,000 per month for 26 months and for the balance amount promise was made to arrange a loan of Union Bank. It is further stated that upon the above stated assurance complainant paid `1,00,000 and booked a flat by NO. 11C at PVS Fortune on 22.09.09. The representative issued him a temporary receipt and undertook to execute agreement for purchase of flat within one month. It is also specifically alleged in the notice that opposite party had neither executed the agreement nor accepted 20,000 per month. It is further alleged that opposite party failed to arrange the loan as promised. Ext.A4 called upon to make arrangements to accept the money in instalment as well as to arrange bank loan and to execute the purchase agreement. Ext.A5 proves that complainant has sent the legal notice. Opposite party also admitted that they have received the lawyer notice. But opposite party did not sent reply. Opposite party answered in a way that they contacted the complainant and informed the complainant that the opposite party is ready to refund the paid amount. What opposite party has stated in his version is thus: “After receipt of the said notice as well the opposite party had contacted the complainant over phone and reiterated their stand that they were ready to refund the amount and for which the complainant had assured that he will collect the amount from the office of the 1st opposite party at the earliest. Basing on the said assurance the opposite party had not issued any reply.”
So the contention raised by the opposite party is that they had not issued any reply since they contacted complainant over phone. But there is no evidence for the same. Opposite party did not adduce any evidence to that effect. PW1/ complainant was elaborately cross examined for opposite parties. But no question put to him to confirm the phone call. Thus it is not believable that 1st opposite party had responded to Ext. A4 lawyer notice. The nature of allegation of the complainant shows that a written reply is required to discharge the legal obligation. The allegation of the complainant was that he was not permitted to remit the amount. The opposite party was not ready to receive the amount. Ext.A4 was dated 30.09.2010. Complainant paid `1,00,000 on 22.09.2009. Opposite party has the case that after paying `1,00,000 complainant had not paid any amount neither the balance booking amount nor instalments undertaken to pay. So he issued letters dated 28.10.09, 20.11.09, 05.12.09, 16.02.10, 09.03.10 demanding to pay balance booking amount and the due monthly instalments. They have also contended that apart from there sellers they had made numerous phone calls but the complainant did not properly attended the same. Under such circumstances what is the meaning in saying that reply of legal notice was not sent because of the reason that all the matters were talked over telephone. It cannot be believed. A man of ordinary prudence can’t digest it as true. Complainant adduced evidence by way of chief affidavit that it is false to say that opposite party has sent the above letter and so also made the phone calls. Since the lawyer notice touches the very crux of the entire subject matter ‘non-reply’ of the same especially in the light of absence of evidence on the part of opposite party can only be treated as deficiency in service.
Complainant alleged that opposite party neither executed the agreement nor accepted ` 20,000 per month. The further averment of the complainant is that the two letters issued by opposite party on 28.10.09, 20.11.09 directing to pay ` 6,85,500 was contrary to representation already made and the same was cheating.
The opposite parties did not adduce any evidence to disprove the case of the complainant. None of their material contention has been proved with supporting evidence. That itself makes evident that opposite party has no genuine contentions and has received `1,00,000 from the complainant towards advance. As per the evidence of complainant it can be seen that complainant has been ready to execute his part of obligation but opposite party did not allow him to do so. The legal notice itself stands as a best proof of readiness of complainant to perform his part of obligation and non-reply of notice proves that opposite party purposefully prevented the complainant from fulfilling the obligation as agreed which the act definitely tantamount to unfair trade practice. Hence we are of considered opinion that there is deficiency in service on the part of opposite party for which they are answerable by way of compensation.
Opposite party enjoyed the benefit of the amount of ` 1,00,000 without taking into consideration the purpose for which it was paid. Hence the opposite parties are liable to refund the amount with interest at the rate of 12 % per annum. It has been already found that there is deficiency in service on the part of opposite party. But considering the facts and circumstances of the case there is no meaning in directing the opposite party to execute the purchase agreement with the complainant with respect to the flat. Hence we are of the opinion that the complainant is entitled for a sum of ` 25,000 as compensation to meet the liability for the unfair trade practice that amounts to deficiency in service on the part of opposite parties.
In the light of above discussion we hold that opposite party is liable to refund the sum of `1,00,000 with interest at the rate of 12% from the date of filing the complaint and to pay an amount of `25,000 as compensation to meet the liability of unfair trade practice committed by the opposite parties together with ` 1000 as cost of this litigation. Hence issues No.1 to 3 are found in favour of complainant and order passed accordingly.
In the result, the complaint is allowed, directing the opposite parties to refund the sum of `1,00,000 (Rupees One Lakh only) paid by the complainant towards advance and to pay an amount of `25,000 (Rupees Twenty five thousand only) as compensation to meet the liability for the deficiency in service by committing unfair trade practice, together with `1000 (Rupees One thousand only) as cost of this litigation, within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order under the provisions of Consumer Protection Act.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Receipt issued by OP.
A2. Letter issued by OP.
A3. Letter issued by OP.
A4. Lawyer notice.
A5(a) & (b). Acknowledgment cards.
Exhibits for the opposite parties
Nil
Exhibits for the Court
Nil
Witness examined for the complainant
PW1. Complainant
Witness examined for opposite party
Nil
Witness examined for Court
Nil
/forwarded by order/
SENIOR SUPERINTENDENT
