IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.
Present: HON’BLE Dr.JUSTICE. S. TAMILVANAN, :: PRESIDENT
THIRU.K. BASKARAN, JUDICIAL MEMBER
TMT.Dr.S.M.LATHA MEHESWARI MEMBER
F.A.No.89/2013
[Against the order passed in C.C.No.110/2011, dated 25.11.2012 on the file of the District Forum, Chennai (North)]
THURSDAY, THE 3rd DAY OF JANUARY, 2019.
M/s.Emaar MGF Land Ltd.,
Rep. by its Chairman Mr.H.E.Mohamed Ali Alabor,
Old No.7-A, New No.75, New Vaidyanathan Street,
Behind Apollo Hospital,
Tondiarpet, Chennai - 81. :: Appellant / Opposite party.
Vs.
Mrs.Haseeba Fayaz,
Flat No.403, Arihant Majestic Tower,
Inner Ring Road,
Koyambedu, Chennai - 101. :: Respondent/ Complainant
For Appellant / opposite party : M/s.Gowtham Kumar, Advocates.
For Respondent/ complainant : M/s.Aridas, Advocates.
This appeal coming before us for final hearing on 19.12.2018 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following:-
ORDER
THIRU.K. BASKARAN, JUDICIAL MEMBER
1. This appeal has been preferred by the opposite party under section 15 read with section 17 (1) (a) (ii) of the Consumer Protection Act 1986, against the order dated 25.11.20145 passed by the learned District Consumer Disputes Redresssal Forum, Chennai (North) in C.C.No.110/2011.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the District Forum.
3. The opposite party who suffered an order in the hands of the learned District Consumer Disputes Redressal Forum, Chennai (North) (hereinafter referred to as District Forum), has preferred this appeal before this Commission.
4. The factual matrix giving rise to this appeal is as follows;-
That the complainant had filed a complaint before the learned District Consumer Disputes Redressal Forum, Chennai (North) seeking refund of Rs.4,33,894/- with interest and Rs.10 Lakhs as compensation besides litigation cost of Rs.20,000/- from the opposite party alleging, interalia, that she had submitted a application for allotment of a flat remitting a sum of Rs.4,33,894/- on 22.12.2009 and the opposite party had asked the complaint to submit her Expression of Interest and on such submission, she was issued a provisional allotment letter allotting flat No.T 21 – D1 – 701 and thereafter on 22.01.2010 the complainant had paid another sum of Rs.4,33,894/- ; that the opposite party had not commenced construction of the project even after lapse of more than 10 months and hence she had sent a letter to the opposite party on 27.10.2010 requesting them to refund the amount of Rs.8,67,788/- paid by her for the purchase of the flat; that on 18.12.2011 the opposite party had refunded only Rs.4,33,894/- ; that inspite of several requests to refund the balance amount of Rs.4,33,894/- the opposite party had not refunded the same which amounted to deficiency in service and hence the complaint.
The claim of the complainant was resisted by the opposite parties setting up a defence that as per the terms and conditions of the agreement between the parties the Earnest Money Deposit made by the complainant would be forfeited in the event of the complainant choosing to cancel the booking; that the complainant was very well aware that the opposite party had to obtain a statutory approval before commencing the project work and after obtaining such approval the construction work was commenced and continuing but the complainant had even before the said approval unilaterally cancelled her booking and hence she had rendered herself liable for earnest money being forfeited and accordingly the earnest money equalent to 10% of the cost of the flat i.e. Rs.4,33,894/- deposited by the complainant was lawfully forfeited by the opposite party and the balance amount was paid to the complainant and hence there was no question of deficiency in service on the part of the opposite party and hence the complaint deserved dismissal.
Based on the pleadings of the respective parties the learned District Forum had framed two points and answered both points in favour of the complainant and allowed the complaint in part directing the opposite party to refund a sum of Rs.4,33,894/- with interest @ 9% p.a. from 27.10.2010 till payment and to pay Rs.50,000/- as compensation and Rs.5,000/- as costs within 6 weeks from the date of receipt of a copy of this order failing which the amount awarded would carry interest @ 9% p.a. till payment; that the opposite party feeling aggrieved over the order has come before us.
5. Point for Consideration in this Appeal is as follows:-
Whether the appeal has to be allowed and the complaint has to be dismissed?
6. Before the learned District Forum, the complainant had filed the proof affidavit and exhibits Ex.A1 to Ex.A7 were marked. On the side of the opposite party, the proof affidavit of opposite party was filed and no exhibits were marked.
7. Point:- The simple case of the complainant is that she had remitted 20% of the cost of the flat to the opposite party amounting to Rs.8,67,788/- and there was no sign of commencement of the project even after lapse of nearly one year after such payment and hence she had requested the opposite party to refund the entire amount paid by her but the opposite party had refunded only Rs.4,33,894/- and forfeited equal amount of Rs.4,33,894/- which would amount to deficiency in service.
8. The simple defence of the opposite party is that as per the terms and conditions of the agreement for providing service the opposite party was entitled to forfeit earnest money deposited by the complainant in the event of the complainant choosing to cancel the booking midway and that as per the very same terms and conditions of the agreement the opposite party had to obtain the approval from the statutory authority before commencing the construction. The learned District Forum has, on the appreciation of the materials available on record, held that the terms and conditions printed under Ex.A2 were in very small font size and hence it might not be possible for the complainant to have read and understood the printed matter and hence there was no meeting of minds between the parties as regard the right of forfeiture and hence the act of the opposite party in forfeiting 10% of the price of the flat under the guise of the said terms and condition was not lawful which would amount to deficiency in service and has further held that the opposite party had not even commenced the construction of the project even after lapse of 10 months from the date of payment of heavy amount by the complainant towards booking of the flat and hence the complainant was right in seeking the refund of the amount paid by her on the ground of non-commencement of the construction work and hence forfeiture of 10% of the value of the flat would amount to deficiency in service.
9. From the materials available on records it can be seen that the opposite party had advertised the launch of the project and invited for booking the units by paying certain percentage of cost of flat from the prospective buyers without obtaining the statutory approvals from the concerned authorities. Under these circumstances, the opposite party is legally expected and supposed to commence the construction work within a reasonable time after having collected hefty sums of money from poor flat buyers like the complainant.
10. A perusal of Ex.A2 application for registration along with the terms and conditions would show that a sum equalent to 10% of the total cost of sale price of the unit shall be considered as earnest money deposit paid by the applicant and in the event of the applicant choosing to cancel the booking, the opposite party would have every right to resell the unit and the car parking slot to any 3rd party and that the opposite party is empowered to forfeit the earnest money deposit and other non-refundable amounts paid by the applicants and at the same time clause 24 of Ex.A2 agreement would state that in the event of the project being abandoned or abnormally delayed the applicants would not be entitled to prefer any claim whatsoever except asking refund of the amount paid by the applicants. Hence, the terms and conditions printed in Ex.A2 application for registration are against the interest of the applicants and tilted in favour of the builder only. No uniform penalty provision is incorporated. But stringent penalty by way of forfeiture is imposed on the prospective buyers in the event of them cancelling the booking but at the same time when the opposite party abandoned the project or there was abnormal delay in the construction of the project the applicants are entitled to seek for refund of the amount paid by them only without any right for seeking any other relief. Hence we are of the view that this kind of agreement containing uneven penal provisions to the parties to the agreement cannot be enforced by one party to the detriment of the other party. Hence, the act of the opposite party in forfeiting Rs.4,33,894/- repaying the 10% of the total cost of the unit could not be setting up lawful and legal.
11. In our case the complainant had not cancelled the booking immediately after booking but she had patiently waited for nearly 10 months after having parted with a hefty sum of Rs.8,67,788/- only to find that the construction work of the project had not even commenced and it was only thereafter by way of letter under Ex.A6 dated 27.07.2010 the complainant had requested to refund all the amount paid by her. It has to be seen that even for this letter under Ex.A6 there was no reply from the opposite party setting forth the reason as to why the project was not commenced and as to when the project would likely to commence and as to when the possession of the flat would be handed over to the buyers like the complainant. Hence, since the date of booking the complainant had been put in the dark regarding the stage construction and the reason for the non-commencement of construction etc., Left with no other option the complainant had lawfully cancelled her booking and requested to refund Rs.8,67,788/- which in our view, she was entitled to and the refusal on the part of the opposite party taking shelter under the unenforceable terms and conditions incorporated in Ex.A2 agreement would amount to deficiency in service as has been rightly held by the learned District Forum.
12. Further, we do not find any ground to alter the relief granted by the learned District Forum. Hence, we are of the view that the appellant has not made out any ground to interfere with the impugned order.
13. Hence, we hold that the learned District Forum’s order dated 25.10.2012 made in C.C.No.110/2011 cannot be set aside and the complaint cannot be dismissed and we answer this point accordingly.
In the result, this appeal is dismissed with cost to the Respondent/complainant quantified at Rs.10,000/- (Rupees Ten Thousand only)
S.M.LATHA MAHESWARI K. BASKARAN, S. TAMILVANAN,
MEMBER JUDICIAL MEMBER PRESIDENT
INDEX; - YES/No
Bsd/SCDRC/Chennai/JM Orders/
