DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 14th day of February, 2023
Filed on: 20/11/2017
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia.T.N Member
CC NO.461/2017
Between
COMPLAINANT
Suresh D. Mallia, S/o. late L. Devadasa Malllia, House No. 4/859, North Cherlai, Kochi 682002.
(Rep. by Adv. Sajan Mannali, S/o. K.K. Viswanathan Mannali, Cochin – 5)
VS
OPPOSITE PARTIES
1. Galaxy Homes Pvt. Ltd., Registered Office, Galaxy Square, Rajaji Road, Junction, M.G. Road, Kochi – 35. Rep. by its Director P.A. Jinas
2. P.A. Jinas, Managing Director, Galaxy Homes Pvt. Ltd., Registered Office, Galaxy Square, Rajaji Road, Junction, M.G. Road, Kochi – 35.
(OP No. 1&2 Rep. by Adv. P.K. Ibrahim, The House of Lawyers, Velambath Building, Kombara Junction, Market Road, Kochi -18)
FINAL ORDER
V. Ramachandran, Member:
The complainant states that he was in search of an apartment around Ernakulam and when he came to know about the apartment being constructed by the opposite parties through advertisement, the complainant approached the opposite parties for the purchase of a flat. The details of which were given in the brochure published by the opposite parties. The complainant thus entered into an agreement on 10/05/2017 with the opposite parties for the purchase a flat in Galaxy Emerald at Elamkulam. The total cost fixed for the said apartment was Rs.30,80,000/-. The complainant had paid an advance amount of Rs.10,00,000/- to the opposite parties. Thereafter the complainant had tried to make available a loan for the remaining portion of payment. The opposite parties had demanded the complainant for 23 numbers of undated cheques for an amount of Rs.22,44,000/- along with other amounts. It is informed to the complainant that these cheques shall not be produced in Bank for encashment without the confirmation of the complainant. The complainant states that the complainant could not understand how the opposite parties can demand for undated cheques for the security from the complainant, when the said demand does not form a part of the agreement executed between the opposite parties and the complainant. The complainant also states that he cannot under the reason for the demand of undated cheques when the complainant is ready and willing to pay directly the balance amount for the purchase of the apartment through his banker as per the terms of agreement with the opposite parties. Therefore the complainant was not in a position to accept the demand of the opposite parties and therefore he has demanded to return the amount of advance Rs.10 lakhs paid by him. But the opposite parties had not returned the amount to the complainant. Aggrieved by this the complainant filed a petition before this Commission praying to issue direction to the opposite parties to return the amount of Rs.10 lakhs along with 18% interest from 10/05/2017 onwards and also seeking other reliefs.
Upon notice from this Commission opposite parties appeared and filed their version.
In the version, the opposite parties contended that the complainant had not been sustained to any deficiency of service or unfair trade practice from the side of the opposite parties. Besides highlighting their profile the opposite parties stated that the total amount of the flat is Rs.35,80,000/- and not Rs.30,80,000/- as stated by the complainant. Further the opposite parties agreed that the complainant had paid an amount of Rs.10 lakhs to the opposite parties. It is also stated that as per agreement condition the complainant is duty bound to give the balance amount also to the opposite parties. In order to make the payment the complainant approached the opposite parties informing that he requires loan from the Bank to finance his future instalment payment and sought for the help of the opposite parties to arrange a bank loan and opposite parties had given full assistance to the complainant and made arrangement to get the Sale Deed of the flat executed in favour of the complainant. The complainant could deposit the Title Deed to create equitable mortgage as security for the loan and disbursement of the loan amount. For this purpose, clear information was given to the complainant that the complainant had to furnish cheques for the balance amount outstanding as security. Since the Title Deed has to be executed in favour of the complainant when there is more than 70% of amount is remaining unpaid. The complainant without conceding to the request of the opposite parties had asked for refund of the advance amount paid by the complainant. He had also sent a lawyer notice to the opposite parties.
The complainant is duty bound to obey the agreement condition for sale dated 10/05/2017in which “if in any case the second party requires sourcing for the future payments said in the construction agreement executed with first party and if security provided by the second party is acceptable to the first party, on the sole discretion of the first party the sale can be executed”. Since this forms as a part of the agreement condition the complainant has to obey this condition but he had not complied with. Hence the opposite parties are not liable or responsible to pay the amount back.
The complainant produced 12 documents which are marked as Exbt. A1 to A12 and the opposite parties produced one document and which is marked as Exbt. B1. The complainant was examined in box and deposition of the complainant recorded as PW1. The opposite party is cross examined through his Power of Attorney holder by the complainant and deposition recorded as DW1. Exbt. A1series is copies of plan of the apartment, Exbt. A2 is copy of the receipt of the booking dated 07/05/2017, Exbt. A3 is the copy of receipt dated 10/05/2017, Exbt. A4 is the copy of the receipt dated 10/05/2017, Exbt. A5 is the copy of the agreement, Exbt. A6 is the copy of the agreement, Exbt. A7 is the copy of the e-mail communication between the parties, Exbt. A8 is the copy of lawyer notice sent to the opposite parties, Exbt. A9 is the copy of the lawyer notice sent to the opposite parties, Exbt. A10 is the copy of the order in C.C.461/2017 dated 19/08/2017, Exbt. A11 is the copy of the order in Appeal No. 631/2017 dated 23/10/2017, Exbt. A12 is the copy of the reply notice received from the opposite parties. Exbt. B1 is Power of Attorney.
The opposite party filed the argument note in which is contended that ‘there are no violation of terms and conditions of the agreement. As per the Clause No. 6 of the agreement for sale dated 10/05/2017 entered into between the parties, it is clearly agreed that “if in any case the second party required sourcing for the future payments said in the construction agreement executed with First Partly and if security provided by the second party is acceptable to the First Party, on the sole discretion of the First Party the sale deed can be executed.” These terms are part of the agreement and here is no illegality. The complainant is raising untenable, illegal and baseless contentions and allegations against the opposite parties. The opposite party has not made any illegal demands from the opposite parties. There is no deficiency of service on the part of the opposite party. The complainant is not entitled to the reliefs sought in the complaint. The complainant is attributing the violation of terms of agreement which does not fall within the purview of consumer dispute. There is also no deficiency of service as the service has not been concluded. Furthermore, there is no cause of action for this complaint therefore it is only liable to be dismissed.’
After going through all the above documents and on analysis of the history of the case the Commission examined the following points.
1. Whether the complainant is sustained to any sort of deficiency of service, or unfair trade practice from the side of the opposite party?
2. Whether the complainant is eligible to get any relief from the opposite party?
3. Cost of the proceedings if any?
On going through the facts submitted by the complainant in his complaint and also on the basis of records and evidence produced by the complainant and the opposite parties it is seen that the complainant and the opposite parties had entered into an agreement for the purchase and sale of an apartment as per Exbt. A5 and A6 and the complainant had paid and the opposite parties had received an amount of Rs.8 lakhs on 10/05/2017 as per receipt issued by the opposite parties to the complainant and also received an amount of Rs.10,000/- from the complainant as booking fee on 07/05/2017 and an amount of Rs.1,90,000/- on 10/05/2017 against agreement amount and thus a total of Rs.10 lakhs had been paid by the complainant to the opposite parties. Even though there is Clause in the agreement condition that the opposite parties can ask for security from the 2nd party accepted by the 1st party for sourcing for future payment of construction, the non-refund of the amount in the case of non-buying of the apartment by the customer is an untenable condition and demanding a bunch of undated cheques amounts to unfair trade practice and the resultant outcome of which is boarding at the level of nothing other than deficiency of service. Moreover, the opposite parties have not produced any documents governing the conditions of return/refund of amounts in case of non-compliance of with the conditions of future payments by the buyers. Hence out of doubt, it can be seen that the complainant had undergone the deficiency of service and unfair trade practice from the side of the opposite parties. There is no case for the opposite parties that they had not received Rs.10 lakhs from the complainant. Hence point No. (1) is found in favour of the complainant. Since Point No. (1) found in favour of the complainant, Point No. (2) and (3) are also decided accordingly. Therefore, this Commission issued orders as follows:
1. The opposite parties shall pay an amount of Rs.10,00,000/- (Rupees ten lakh only) to the complainant with 5.5% interest from 10/05/2017 onwards till the date of realization.
2. Opposite parties shall pay an amount of Rs.50,000/- (Rupees fifty thousand only) to the complainant as compensation for the mental agony, hardships and other sufferings caused to him. This amount of compensation shall attract interest @5.5% from the date of receipt of a copy of this order by the opposite parties till the date of realization of amount.
3. The Opposite parties shall also pay the complainant Rs.10,000/- (Rupees ten thousand only) towards the cost of the proceedings.
The Opposite parties shall jointly and severally be liable for payment of the above-mentioned amount which shall be complied with by the Opposite Parties within 30 days from the date of the receipt of a copy of this order.
Pronounced in the open Commission on this the 14th day of February, 2023,
Sd/-
V. Ramachandran, Member
Sd/-
D.B.Binu, President
Sd/-
Sreevidhia.T.N, Member
Forwarded/by Order
Assistant Registrar
APPENDIX
Complainant’s evidence:
Exbt. A1: Copies of plan of the apartment
Exbt. A2: Copy of the receipt of the booking dated 07/05/2017
Exbt. A3: Copy of receipt dated 10/05/2017
Exbt. A4: Copy of the receipt dated 10/05/2017
Exbt. A6: Copy of the agreement
Exbt. A7: Copy of the e-mail communication between the parties
Exbt. A8: Copy of lawyer notice sent to the opposite parties
Exbt. A9: Copy of the lawyer notice sent to the opposite parties
Exbt. A10: Copy of the order in C.C.461/2017
Exbt. A11: Copy of the order in Appeal No. 631/2017 dated 23/10/2017
Exbt. A12: Copy of the reply notice received from the opposite parties.
Opposite parties’ evidence
Exbt. B1: Power of Attorney.
Despatch date:
By hand: By post
kp/
CC No. 461/2017
Order Date: 14/02/2023
