KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL NO.522/2011

                             JUDGMENT DATED: 28.02.2012

PRESENT:

JUSTICE SHRI. K.R. UDAYABHANU              :  PRESIDENT

Sahara India Commercial Corporation Ltd.,

Subsequently changed as Sahara Prime-

City Limited, 45/1801, Ponnurunni East, NH 47,: APPELLANT

By Pass Road, Vytilla, Ernakulam,

PIN-682 019, Rpd by the Assistant Manager-Jijo.

(By Adv:Sri.K.V.Jayadeep Menon)

          Vs.

1.      Anna Benny, W/o Benny Jose,

FG 3, Palladium Apartments,

Elamakkara Road,

Ernakulam District, PIN-682026.

                                                                   : RESPONDENTS

2.      Benny Jose, FG 3,

Palladium Apartments,

Elamakkara Road,

Ernakulam District, PIN-682026.

                                       JUDGMENT

JUSTICE SHRI.K.R. UDAYABHANU: PRESIDENT

Appellant is the opposite party/builder in CC.590/09 in the file of CDRF, Ernakulam.  The appellant is under orders to refund Rs.10,000/- with interest at 12% from the date of receipt of the amount and also to pay Rs.5000/- as compensation.

2.      The case of the complainants who are the wife and husband is that they had reserved a flat by paying Rs.2.lakhs on 10.12.2007 in the project of the opposite parties. On 29.3.2008 they received the intimation of allotment of the flat and was directed to pay Rs.5,70,700/- towards the first instalment.  The complainants insisted for signing the contract before affecting payment.  The terms of the draft agreement was found not acceptable and as the same contained certain anomalies.  The complainant wanted the same to be rectified.  At last on 7.7.2008 the complainants requested for refund of the advance amount but only a sum of Rs.1,90,000/- was refunded after deducting Rs.10,000/-.  The complaint is filed for getting refund of the same and compensation.

3.      The opposite parties have contended that as per the terms of the agreement in case of cancellation 10% of the total price of the unit is not liable to be refunded.

4.      The evidence adduced consisted of the testimony of PW1, DW1, Exts.A1 to A13 and B1.

5.      The opposite parties/appellants has relied on the decision of the National Commission in M/s Sahara India Commercial Corporation Limited Vs. P.Gajendra Chari in Revision Petition-497/07 dated:22.4.2010 wherein the legality of a similar clause was upheld.  The CDRF has distinguished the above decision in the preliminary order on the ground that there was no concluded contract herein as is the case in the decision cited.   Further we find that in M/s Sahara India Commercial Corporation Limited’s case (supra) the allottee therein suo-motu sought for cancellation on account of financial difficulties it is not the same in the instant case wherein the complainant has sought for clarifications of the terms of the agreement and verification of the title of the opposite parties.  The complainant has sent a number of letters in this regard as evident from the copies of the letters produced.  On the other hand, the opposite parties have insisted for signing on the dotted line.  It is the case of the complainant that the opposite parties unilaterally cancelled the booking vide letter dated:5.8.2008 which is Ext.A11.  It is thereafter the complainants requested for refund of the amount.  In the circumstances we find that the fact of the decision cited appears entirely different.  More over after about 3 months of payment of the booking amount the disputes have cropped up and hence there can be no difficulties faced by the opposite parties.  In the circumstances we find that the opposite parties are not entitled to appropriate Rs.10,000/- only on the ground that there is such a clause in Ext.A4.  In the circumstances we find there is no interference in the order of the Forum is called for.  All the same the direction to pay compensation of Rs.5000/- is set aside.  The Forum has directed to pay interest at 12%.   The direction to pay interest at 8% is reduced to 9%.  The opposite parties/appellants will make the payment within 3 months from the date of receipt of this order.

In the result the appeal is allowed in part as above.

The office will forward the LCR along with a copy of this order.

JUSTICE K.R. UDAYABHANU:  PRESIDENT

VL.