Karnataka

Bangalore 4th Additional

CC/1166/2016

Mr. Vikash Kumar Srivastava, - Complainant(s)

Versus

M/s. Maxworth Realty India Limited, - Opp.Party(s)

29 Dec 2018

ORDER

Complaint filed on: 24.08.2016

                                                      Disposed on: 29.12.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.1166/2016

DATED THIS THE 29^TH DECEMBER OF 2018

 

PRESENT

 

 

SRI.H.Y.VASANTH KUMAR, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Mr.Vikash Kumar Srivastava S/o Sri.Vijay Kumar Srivastava, Aged about 31 years,

R/at no.1116, 12^th Block, Janapriya Heavens,

Allalsandra,

Bengaluru-65.

 

By Adv.Sri.H.N.M.Prasad  

 

V/s

Opposite party/s:-    

 

M/s.Maxworth Realty India ltd., A Company incorporated under Companies Act of 1956,

Having its Corporate office at no.12/2, KMP House,

Yamunabai Road,

Madhavanagara,

Bengaluru-01.

Rep. by its Managing Director

 

By Adv.Sri.G.S.Prasannakumar   

 

 

 

  

ORDER

 

Under section 14 of consumer protection Act. 1986.

 

SRI.H.Y.VASANTH KUMAR, PRESIDENT 

 

            The Complainant has prayed for direction against the Op for refund of Rs.6,52,000/- with interest from 06.06.16 with compensation amount of Rs.1 lakh, by alleging the deficiency in service in not returning the advance sale consideration amount paid towards the proposed flat.      

 

          2. The case of the Complainant in brief is that, he booked two BHK flat at C block bearing no.1001 (10^th floor) at the rate of 3,000/- per sq.ft for total amount of Rs.32,59,625/-. Later he cancelled the agreement due to medical emergency vide letter dtd.03.10.15 requesting to refund the paid advance amount. The Complainant reminded for refund of amount on 24.10.15 and the Op through endorsement dtd.22.05.16 agreed to refund the advance amount on or before 06.06.16. Thereafter, the Op on one or the other pretext, when dragging the matter, he got issued legal notice dtd.22.07.16. But no response was received even after it served on Op and hence this complaint is filed.

 

          3. The Op in his version has contended that, as per the terms & conditions of the booking form, the Complainant becomes liable to pay 30% of the total sale consideration amount which becomes to Rs.9,77,887/- and he has not paid the said 30% of the total sale consideration amount. For verification of the documents also, he had to pay 25% of the total sale consideration amount, which was conveyed at the time of issuing booking form. There is no deficiency on his part. The Complainant being defaulter has made wrong allegations against him. All developmental works were over and now he is ready to pay the principle amount after deducting 15% of the advance amount towards travel and legal expenses as per the condition no.11. He does not become liable to pay interest. The Complainant himself has admitted his personal inconvenience in not paying the further amount and hence, he should not claim deficiency in service against the Op. The Complainant was not ready to accept the offered amount after deducting 15% amount and hence, the complaint becomes liable to be dismissed.

 

          4. The Complainant and the Opposite Party filed their affidavit evidences relying Ex-A1 to A9 and Ex-B1 to B2 documents respectively. Written arguments were filed by both sides. Arguments were heard.                    

 

                   

          5. The consumer disputes that arise for consideration are as follows:

 

1. Whether the complainant establishes the alleged deficiency in service by the Op in deducting 15% on the advance amount of Rs.6,52,000/- after he cancelled the booking form ?
2. Whether the Complainant is entitled to get relief as prayed for ?
3. To what order the parties are entitled ?

 

6. Answers to the above consumer disputes are as under:

1) Affirmative.

2) Partly Affirmative.

3) As per final order – for the following      

 

REASONS

 

          7. Consumer Dispute No.1: The undisputed facts reveal that, the Complainant paid Rs.6,52,000/- after booking two BHK flat no.1001 of ‘C’ block measuring 865 sq.ft at ‘Max Worth City’ of the Op, as supported by booking form/Ex-A1/B1 dtd.02.11.13, and the cheques/Ex-A3, A5 & A6 annexed with receipts. Both of them entered in to memorandum of understanding/Ex-A2 dtd.13.08.14 about the booked flat.  

 

          8. It is also undisputed that, at the later stage, the Complainant cancelled the booking flat vide Ex-B1/letter endorsed on 06.06.15, on the grounds of medical emergency and requested the Op to refund the paid amount. The Complainant reminded the Op through letter/Ex-A7 dtd.03.10.15 endorsed on 24.10.15. Thereafter, the Complainant got issued legal notice/Ex-A8 dtd.22.07.16 which was served on Op as per Ex-A9/postal acknowledgement.

 

          9. The Op though has not issued reply notice, but has contended in his version that, the amount offered by him after deduction of 15% of the booking amount was not accepted by the Complainant. On the back of Ex-A1/B1/booking form, there are 11 terms & conditions. The term no.7 says that “Refund of booking amount will be done after 30 working days from the date of cancellation”. The term no.11 says that “Cancellation without a valid reason 15% of booking amount will be deducted towards service and transport charges.”

 

          10. The ground of medical emergency mentioned by the Complainant in his letters is not denied by the Op. The Op has not stated what compelled him to deduct 15%, if that ground is not accepted and without objecting about the said ground, how he can deduct 15%.

 

          11. The complainant paid Rs.2,00,000+2,00,000 +2,45,000+7,000 on different dates i,e, on 01-11-13, 24-03-14, 12-05-14 and on 12-05-14. Vide Ex-A7 the OP was requested to return said amount and the OP endorsed thereon on 22-05-16 that he would return before 06-06-16. The above transactions clearly show that the Op utilized the entire Rs.6,52,000/- for complete two years before agreeing to return it. The Op being the builder, knowing the value of the timely payments should have understood the value of the said amount for two years atleast after his acceptance of completion of major construction work. At any stretch of imagination, the interest if calculated on that amount for two years it exceeds his alleged right of 15% proposed deduction. As per the term no.7, the Op ought to have returned after one month of calculation. Ex-B1 shows he received the request on 06.06.15. Instead of paying the amount on 06.07.15 dragged the matter for one year for which his liability is nowhere stated to pay the interest thereon. Thereby it is clear that, the critical position of the Complainant was utilized by the Op to gain illegally and unlawfully having domination over the situation. Such attitude of the Op definitely amounts to deficiency in service and harassment of the consumer.

 

          12. The Op has relayed on two reported decisions on the point of pecuniary jurisdiction contending that, the value of the flat was exceeding Rs.30 lakhs. The consumer dispute is regarding the admitted refundable amount paid towards the booking form and it is not about the entire flat. The subject matter of the dispute is only Rs.6,52,000/- paid amount and not on the value of the flat, even as admitted by the Op about his liability to refund Rs.6,52,000/-. Hence, the above decisions cannot be made applicable. In the result, the Complainant has established the consumer dispute no.1 in his favour. Accordingly it is answered in the affirmative.

 

13.Consumer Dispute No.2 & 3: The complainant becomes entitled to recover the advance booking amount of Rs.6,52,000/- as promised by the Op. The Op instead of paying within 06.07.15 dragged till 06.06.16 and thereby there is deficiency in service which makes him liable to pay damages/compensation to the complainant as he was dragged to the court to recover the said amount. The interest claimed at the rate of 18% becomes exorbitant and hence the said rate is reduced. In the result, the complainant deserves to get the following:

ORDER

 

          The CC.No.1166/2016 filed by the Complainant is allowed with litigation cost of Rs.10,000/-.

 

          2. The Op is directed to return Rs.6,52,000/- to the complainant with interest at 12% p.a. from the date of complaint till realization, within 30 days from the date of this order, in default, the Op has to pay interest on the refund amount at 15% p.a. thereafter.

 

3. The Op is also directed to pay compensation of Rs.25,000/- to the complainant.

 

          Supply free copy of this order to both the parties. 

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 29^th December of 2018).

 

 

 

 

(ROOPA.N.R)     MEMBER

(VASANTH KUMAR.H.Y)  PRESIDENT

                                                                        

Copies of Documents marked on behalf of Complainant:

 

Ex-A1	Booking form dtd.02.11.13
Ex-A2	Original Memorandum of understanding dtd.13.08.14
Ex-A3 to A6	Cheques and original Receipts
Ex-A7	Original Letter dtd.03.10.15
Ex-A8	Legal notice dtd.22.07.16
Ex-A9	Original Postal acknowledgement

 

Copies of Documents marked on behalf of Opposite party

 

Ex-B1	Cancellation letter dtd.06.06.15
Ex-B2	Booking form dtd.12.11.13

 

 

 

 

(ROOPA.N.R)     MEMBER

(VASANTH KUMAR.H.Y)  PRESIDENT