DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 31st day of July 2023
Filed on: 05/08/2015
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia.T.N Member
C C. No. 533/2015
COMPLAINANT
N.Krishnaraj, S/o.P.K.Natarajan, residing at 305, ORLANDO, Jnanatha Road, Manjummal, Ernakulam, Kochi-683 501
(By Adv.V.V.Surendran, P.M.Padmanabhan, Calicut Law Chambers, St.Benedict Road, (west End), Ernakulam-682 018)
Vs.
OPPOSITE PARTIES
- M/s.Shwas Homes Pvt.Ltd., Ground Floor, Shwas Mystic Heights, Kaniyampuzha Road, Eroor P.O., Vyttila, Kochi-682 306, Rep. by Managing Director.
- The Manager, M/s.Shwas Homes Pvt. Ltd., Ground Floor, Shwas Mystic Heights, Kaniyampuzha Road, Eroor P.O., Vyttila, Kochi-682 306
(ops rep. by Adv. Adv.George Cherian Karippaparambil, HB -48, Panampilly Nagar, Kochi-682 036)
F I N A L O R D E R
Sreevidhia T.N., Member
- A brief statement of facts of this complaint is as stated below:
The complainant is a native of Tamil Nadu and doing professional business in Kerala. The complainant has decided to purchase a house in Kerala. Being attracted by the impressive brochure, booklets and the persuasive dialogue of the marketing personals of the opposite party especially Mr.Sandeep R, the complainant was persuaded to book a villa marketed by them. At his request on 24.08.2013, he signed an application for booking a villa valued at Rs.59,97,000/- and issued cheque No. 092756 for Rs.200000/- drawn on Axis Bank Ltd. favouring Schwas Homes Pvt. Ltd and handed over to Sandeep.
Thereafter seeing few issues in the front Aquacity Multistoried structures and noticing certain aspects, the complainant wanted some more clarification which Mr.Sandeep could not give readily. Sensing bad on his conduct complainant had cancelled the booking by SMS to Mr.Sandeep. Immediately, Mr.Sandeep called the complainant and clarified the issues and promised to satisfy the standards expected. Mr.Sandeep had sent an e-mail to the complainant dated 24.08.2013. Therefore the complainant withdraws the cancellation and arranged to honour the cheque. The opposite party had received the amount and issued a receipt dated 27/08/2013 and allotment letter to complainant. Thereafter the complainant had remitted another Two lakhs by cheque dated 24/10/2013 drawn on ICICI bank to opposite party and the opposite party had issued receipt dated 24/10/2013.After the second payment the complainant had noticed IS code violation from the part of opposite party. The complainant has also noticed wide clippings with negative comments posted by earlier clients of the opposite party. The complainant had understood the poor quality of the buildings in every respect. The complainant had tried to contact the responsible persons of the opposite party so that he may get a better quality construction. After the second payment the complainant had noticed that the material quality of the construction was very poor. Time stipulated for execution of return agreement also lapsed. The complainant had no other option but to cancel the booking and for that purpose he had issued an email to the opposite parties dated 02/01/2014. The complainant had intimated his bank details to the opposite parties for remitting the amount. Thereafter he had also sent registered letters to the opposite parties regarding the cancellation of the apartment. But there was no response from the opposite party. Therefore the complainant caused to send a lawyer notice to the opposite parties demanding Rs.4,00,000/- together with interest and compensation. The opposite parties sent a reply notice to the complainant stating untenable contentions. The complainant states that he is entitled to get the advance amount of Rs.4,00,000/- together with interest at 18% per annum from the date of payment. The complainant also seeks a compensation of Rs.2,00,000/-
- NOTICE
Notices were issued to the opposite parties from this Commission on 03/09/2015. Upon notice opposite parties 1 and 2 appeared and filed their joined version.
- VERSION
This consumer complaint is not maintainable either in law or on facts of the case against the opposite parties. There is no subsisting contract between the complainant and the opposite parties. The allotment of plot no 67 B in Palm Bay project in Aqua City was cancelled due to non-payment in spite of repeated demands and the booking amount was forfeited as per the terms and conditions contained in the application form dated 24/08/2013. The averment that complainant has booked this plot no 67 B for settling in Kerala after his retirement is incorrect and hence denied. Complainant is having other flats, plots, houses in Kerala and in his native places at Tamil Nadu. Complainant is not a consumer as defined under The Consumer Protection Act, 1986.
Complainant has booked plot no 67 B, 4 cents of land with 1700 Sq ft Villa, for an amount of Rs.59,97,000/- on 24/08/2013 by paying Rs. 2,00,000/- as the booking amount. Complainant made a further payment of Rs.2,00,000/- towards booking amount on 24/10/2013. In the application form the terms and conditions has been specifically incorporated. Clause 3 of the terms and conditions reads as follows “The booking amount will not be refunded to the party in case of cancellation and the balance amount will be refunded after re-allotting the said unit to a new client”. Therefore, the booking amount of Rs.4 lakhs is non-refundable. As per the payment schedule appended with the application form it is made known to the complainant that the agreement can be entered in to only on payment of 20% of the payment and not on payment of the booking amount of Rs 4 lakhs. Hence the entire contrary allegations in paragraphs 3 and 4 of the consumer complaint are false and hence denied. In spite of repeated demands complainant has not paid 20% of the contract amount above the booking amount, since the complainant being a defaulter, opposite parties could not execute the agreement in terms of the Application form with the appended payment schedule. Hence the entire contrary allegations in paragraph 5 are absolutely false and hence denied by the opposite parties.
The further averment that the representative of the first opposite party Mr Sandeep. R has confirmed the refund as per the letter it is absolutely false and hence denied. There is no promise from the part of the opposite parties for refund of the booking amount, which is also clearly stipulated in the application form. First opposite party contented that they have suffered huge losses due to the illegal nonpayment whereby the first opposite party has lost the prospective purchasers from 24/08/2013 and their payment for plot No 67 B in Palm Bay Project in Aqua City township of the first opposite party. Complainant is liable to pay Rs 5 lakhs as compensation to the first opposite party. Hence the entire contrary allegations in paragraph 6 of the consumer complaint are false and are denied by the opposite parties. Complainant is not entitled for refund of the non-refundable booking amount of Rs. 4 lakhs or any lesser sum or any interest due thereon. Complainant is not a consumer as defined in the Consumer Protection Act, 1986. Complainant has no cause of action against the opposite parties. None of the prayers in the complaint are allowable.
- EVIDENCE
The evidence in this case consists of the proof affidavit filed by the complainant and the documentary evidence which were marked as Exhibit A1 to A9. The complainant is cross examined by opposite party’s counsel as PW1. The opposite parties filed 3 documents which are marked as Exhibit B1 to B3. The opposite parties also filed proof affidavit.
Heard both parties.
5) POINTS TO BE ANALYSED IN THIS CASE ARE AS FOLLOWS:
1. Whether any deficiency in service or unfair trade practice is proved from the side of opposite parties towards the complainant?
2. If so ,reliefs and costs?
- For the sake of convenience we have considered issue Nos.1 and 2 jointly. The case of the complainant is that he had booked a villa valued at Rs.59,97,000/- marketed by the opposite parties and issued cheque for Rs.2,00,000/- drawn on Axis bank Ltd favouring Shawas homes Ltd. Thereafter seeing few issues in the multi-storied structures the complainant had cancelled the booking by SMS. Immediately one marketing personnel of the opposite parties clarified the issues and promised to satisfy the standards expected. Therefore the complainant withdrew the cancellation and arranged to honour the cheques. Then the complainant had remitted another two lakhs by cheque. After the second payment the complainant had noticed some issues in the front Aqua city multi-storied structures and then the complainant cancelled the booking. The complaint is filed to get Rs.4,00,000/- along with compensation and cost of proceedings. Exhibit. A1 is an email sent by Mr.Sandeep R, Marketing manager of opposite party on 24/08/2013. As per clause (b) of the Exhibit A1, the booking amount will be refunded completely without any deduction if the clients cancelled booking. Exbt. A2 is an email sent by the complainant to the opposite party on 25/08/2013 requesting to send the allotment confirmation letter. Exbt. A3 is the receipt given by the opposite party regarding the encashment of the cheque for Rs.2,00,000/- issued by the complainant .Exbt. A4 is the allotment letter issued by the opposite parties to the complainant dated 02/09/2013. Exbt. A5 is also a receipt issued by opposite parties to the complainant regarding the acceptance of Rs.2,00,000/-. Exbt.A6 is an e-mail sent by the complainant to Mr.Sandeep on 02.01.2014, intimating the cancellation of the apartment. The complainant’s bank account details are also intimated to the opposite party in this e-mail. Exbt A8 is a legal notice sent by the complainant through Adv.Liju V Stephen to the opposite parties. Exbt. A9 is the reply notice sent by the opposite party stating that there was no default on the opposite party’s part in carrying out the construction and hence the opposite parties are not liable to refund the amount and in default of agreement opposite party had to suffer a loss of Rs.5,00,000/-.
The opposite party produced 3 documents. Exbt.B1 is the application form signed between the parties dated 24.08.2013 including the terms and conditions. The opposite party contented that they are not liable to return the advance amount on cancellation of booking as per the terms and conditions. Exbt.B2 is the mail sent by complainant to opposite party regarding the cancellation of the apartment on 08/10/2014.Exbt B3 is the payment schedule of 67 B apartment.
We have thoroughly analyzed the facts of the case, version filed by the opposite parties and evidence filed by both sides. The opposite parties admit in their version that they have received an amount of Rs.4,00,000/- from the complainant as booking amount. The opposite party contented that the allotment of plot No.67 B in Aqua city was cancelled due to non-payment inspite of repeated demands made by the opposite parties and since the booking amount forfeited as per the terms and conditions contained in the application form dated 24/08/2013. But the opposite parties have not produced any evidence to prove that they have made repeated demands to the complainant to pay the balance amount and to prove that the complainant is a defaulter. The complainant had requested to the opposite party for cancellation of the apartment no.67 B as proved by Exbt.A6 and Exbt.A7. But the opposite parties are not willing to refund the amount to the complainant.
Eventhough the application form including the Terms and conditions are signed by the complainant and on 24.08.2013, the Marketing Manager of the opposite party Mr.Sandeep had subsequently sent an e-mail to the complainant on 24.08.2013 23:47 ensuring that the booking amount will be refunded completely without deductions. Hence the complainant withdraw the cancellation and sent an email to the opposite party and had arranged to honour the cheque. Then the opposite party encashed the cheque and issued receipt dated 27.08.2013 and allotment letter to the complainant. From the above, it is evident that the opposite party had areed to the complainant to refund the full amount without deduction. Subsequent encashment of the cheque amounts to unfair trade practice and therefore the opposite party is duty bound to refund the amount to the complainant. The complainant is entitled to get the amount paid by him though he has signed in the conditions in the application form laid down by the opposite party. The complainant had decided to cancel the booking of the apartment after signing the terms and conditions in the application form. It was then that the opposite party sent the mail to the complainant. The complainant decided to go ahead with the purchase of the apartment because the opposite party informed him via email that he would return the booking amount without deduction. Although clause (3) of the terms and conditions in the application form are signed by the complainant, subsequently opposite party had sent an E-mail to the complainant stating that the booking amount will be refunded. The above action of the opposite parties ie., the promise to return the amount nullifies the terms and conditions in the agreement.
From the available evidence and documents in this case it is quite unfair from the part of opposite party that they are not ready to refund the booking amount to the complainant eventhough the complainant had requested for cancellation. The complainant had booked this apartment 67 B, 4 cents of land with 1700 sq.ft villa for an amount of Rs.59,97,000/-. Out of this 59,97,000/- complainant had paid only Rs.2,00,000/-as booking amount to the opposite parties on 25.08.2013. The complainant had also paid Rs.2,00,000/- to the opposite party on 24.10.2013. On 02.01.2014 itself complainant had requested for cancellation of the apartment. Hence the complainant filed the application for cancellation in due course. The argument of the opposite party that the agreement has not been signed by the complainant and the complainant has defaulted by not paying the 20% is not tenable. The Commission is of the firm opinion that deficiency in service and unfair trade practice is proved from the side of opposite parties towards the complainant.
In the result following orders are issued.
(1). The opposite parties shall refund Rs.4,00,000/- to the complainant as per Exbt A1 Email.
(2). The opposite parties shall also pay a compensation of Rs.50,000/- to the complainant.
(3). The opposite parties shall pay Rs.5,000/- as cost of proceedings to the complainant.
(4). The liability of the opposite parties shall be jointly and severally.
If the above order is not complied within 30 days the amount ordered (1) and (2) above shall attract interest 6% per annum from the date of order till the date of realization.
Pronounced in the Open Commission on this 31st day of July 2023.
Sd/-
Sreevidhia T.N., Member
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Forwarded by order
Assistant Registrar
APPENDIX
Complainant’s Evidence
Exbt. A1:: Copy of an email sent by Mr.Sandeep R, Marketing Manager of
opposite party to the complainant on 24/08/2013.
Exbt.A2 : copy of reply letter sent by the complainant to the opposite party on 25.08.2013
Exbt.A3 :: Receipt dated 27.08.2013 issued by the opposite party to the complainant.
Exbt.A4: Allotment letter
Exbt.A5 :; Temporary receipt dated 24.10.2013 issued by the opposite party to the complainant.
Exbt.A6; g-mail dated 02.01.2014 sent by the complainant to the opposite party
Exbt.A7 :; copy of gmail sent by the complainant to the oppose party dated 25.08.2013.
Exbt.A8 :: copy of lawyer notice sent by the complainant dated 24.02.2015.
Exbt.A9 :: copy of reply notice sent by the opposite party dated 06.06.2015.
Opposite party’s Exhibits:
Exbt.B1: Application form issued by the opposite party
Exbt.B2 :: copy of gmail dated 08.10.2014
Exbt.B3 :: copy of payment schedule
Deposition
PW1 : Krishna Raj.
C.C.No.533/2015
Order dated 31.07.2023
