BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 22/03/2012

Date of Order : 29/11/2013

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 181/2012

Between

And

O R D E R

V.K. Beena Kumari, Member.

1. The facts leading to this complaint are as follows :-

The complainant, the Managing Director of Paulmary Media Solutions Private Limited approached the opposite parties, who are sellers of apartments in Airport Suits, near Nedumbassery Airport, for purchasing an apartment for his NRI friend Sri. Jalaludin. The 2^nd opposite party the marketing executive of the company assured the complainant that the apartment No. 8 H lying vacant in the 8^th floor of the Airport Suits, Block No. VII Nedumbassery will be made available to the complainant and the complainant paid Rs. 1,00,000/- as initial payment towards costs of the apartment No. 8H in the Airport Suites. The 2^nd opposite party also assured the complainant to arrange bank loan and that the amount of Rs. 1 lakh will be refunded if the complainant could not procure the loan amount. Later, the opposite parties informed the complainant that the bank was reluctant to offer huge amount of Rs. 20 lakhs as loan. The complainant tried to arrange the required finance, but it was not materialized. The complainant, therefore requested the opposite parties to return the money already paid of Rs. 1 lakh. But the said amount was not returned despite several requests of the complainant and now the opposite parties have allotted the apartment to another customer. It is alleged that the above acts of the opposite parties caused serious financial loss, mental agony, discomfort and humiliation to the complainant that the above acts of the opposite parties amounted to deficiency in service and unfair trade practice. Hence, this complaint seeking refund of Rs. 1 lakh with interest from 26-07-2010 and such other amount which the Forum thinks fit towards compensation for the mental agony and inconvenience caused along with costs of the proceedings.

2. The version of the 1^st and 3^rd opposite parties is as follows :-

The opposite parties in their version stated that the 2^nd opposite party was never authorised to assure any person who took apartments to arrange loan from any bank, that the amount of Rs. 1 lakh paid by the complainant was towards the booking charges of the apartment, which is not refundable. Neither the complainant nor his NRI friend could arrange the loan, the act of the complainant had caused huge loss to the opposite parties and none of the acts of the opposite party would constitute deficiency in service or unfair trade practice, therefore, it is prayed that the complaint may be dismissed as there arose no cause of action.

3. The notice of the 2^nd opposite party was returned unserved, but they chose to remain absent. The complainant was examined as PW1 and his wife was examined as PW2. Exts. A1 to A5 were marked on the part of the complainant. The witness of the 1^st and 3^rd opposite parties was examined as DW1 and Exts. B1 to B10 marked on their side. Counsel for both parties was heard.

4. The only point to be decided in this case is whether the complainant is entitled to refund of Rs. 1 lakh?

5. The complainant paid Rs. 1,00,000/- as initial payment towards the cost of the apartment No. 8H on 26-07-2010 as evidenced by Ext. A1 issued by the opposite parties to the complainant. Thereafter, the complainant signed Ext. B1 application form which contained the terms and conditions. Subsequently, Ext. A3 allotment letter dated 03-09-2010 was issued to the complainant by the opposite parties through e-mail. The complainant deposed before the Forum as PW1 that the 2^nd opposite party induced the complainant to pay Rs. 1 lakh as part payment towards the cost of the apartment. The 2^nd opposite party also told that if the initial payment is less, the bank would be reluctant to grant loan for the remaining Rs. 20 lakhs. The 2^nd opposite party assured that if the complainant could not take the apartment for any reason, the advance of Rs. 1 lakh would be refunded to the complainant. PW2 wife of the complainant also had given consistent statement before this Forum. PW2 further deposed that after payment of the amount, she was told that the amount of Rs. 1 lakh is not refundable. Ext. A5 letter sent by the opposite parties to the complainant clearly states that the opposite parties had tried to assist the complainant in the best possible way with regard to the bank loan. DW1 deposed that he has no direct knowledge about the transactions relating to the case that in Ext. B1 terms and conditions, nothing is stated about forfeiture of earnest money, that it is not specifically stated that the amount of Rs. 1 lakh paid by the complainant is non-refundable. In Ext. A1 receipt it is not specifically stated that the amount is 'booking charges not refundable'. In the circumstances, the evidences tendered by PW1 and PW2 remain unchallenged, the contention of the opposite parties that the amount of Rs. 1 lakh is not refundable, that the opposite parties had never assured the complainant to arrange the loan from the bank are rejected as incorrect and illegal. We are only to find that the amount of Rs. 1 lakh was actually received by the opposite party as part payment of the cost of apartment. We are also to find that the act of the opposite parties in refusing to return the amount of Rs. 1 lakh paid by the complainant towards part payment of the cost of apartment amounts to unfair trade practice and the complainant is entitled to refund of the above amount with interest. Since the grievance of the complainant is sufficiently met with the above order, no further amount awarded towards compensation. Costs is allowed, since the case was unnecessarily dragged to this Forum.

6. In the result, we partly allow the complaint and direct as follows :-

1. The opposite parties shall jointly and severally refund Rs. 1 lakh (Rupees One lakh only) to the complainant with interest @ 12% p.a. from the date of payment till realisation.

2. The opposite parties shall jointly and severally pay Rs. 1,000/- (Rupees One thousand only) towards costs of the proceedings.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 29^th day of November 2013.

Sd/- V.K. Beena Kumari, Member. Sd/- A. Rajesh, President.

Sd/- Sheen Jose, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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