Date of filing:  06.11.2021                                                          Date of Disposal: 30.05.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,      BENGALURU – 560 027.

DATED THIS THE 30^TH DAY OF MAY, 2023

CONSUMER COMPLAINT NO.423/2021

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

1) Smt. Loveleen Kaur Sasan,

Aged About 30 years,

W/o. Sri Koushik.K,

2) Sri. Koushik.K,

Aged About 32 Years,

S/o. Krishnamurthy.V,

Both residing at No.121,

BSK 1^st Stage, Second Block,

(Rep by Sri. Madhusudhan.N.K, Advocate)

- V/s -

1) PROMONT HOLLTOP PRIVATE LIMITED,

Registered Office at E-Block,

Voltas Compound, T.B. Kadam Marg,

Chinchpokli, Mumbai-400033.

Represented by Director.

(Rep. by Sri. Sanjay Nair, Advocate)

2) PROMONT HILLTOP PRIVATE LIMITED,

Regional Office – South India,

“A” Wing Corniche Al-Latheef,

No.25, Cunningham Road,

Represented by its Director.

(Rep. by Sri. Sanjay Nair, Advocate)

//JUDGEMENT//

BY SRI. SHIVARAMA K, PRESIDENT

01.    The complainants have filed this complaint under section 35 of the Consumer Protection Act, 2019 seeking for a direction to the opposite party to pay a total sum of Rs.23,90,000/- towards deficiency in service, damages and litigation charges, etc.,. 

02.    It is not in dispute that, in the year 2012 opposite party had launched a residential project in the complex Hill Top in Bangalore.  Further it is not in dispute that, opposite party had completed the construction of all the towers and has received the occupancy certificate for towers Almora and Elana on 23.08.2016 and for towers Altura and Altezza on 23.08.2017.  Further to purchase a residential 4 BHK apartment in the Tower Almora or Alteeza on 01.11.2020 the complainant approached the opposite party.  Further it is not in dispute that, the complainant was informed that there were no residential 4 BHK apartment and that only 3 BHK was available in Tower Elena.  Further on 04.11.2020 the complainant proceeded to book 3 BHK apartment and had paid initial booking amount of Rs.20,00,000/- for unit No.1803 at Tower Elena.  Further it is not in dispute that, in the month of December-2020 opposite party informed the complainant with regard to the availability of an apartment No.1902 in Tower Alteeza.  Further the complainants cancelled the apartment No.1803 in Elena and confirmed their booking for apartment No.1902 in Tower Alteeza for a total sale consideration of Rs.1,94,19,400/-.  Further amount of Rs.20,00,000/- was transferred to the aforesaid unit.  Further as per the request of the opposite party the complainant had filled the required forms sent by the opposite party.

03.    It is the further case of the complainant that, the application form given by opposite party is wholly one-sided and unjustified thereby constitutes an unfair trade.  Further the complainants had no other option but to sign the dotted line on the application form framed by the opposite party.  Further there was no description of schedule B property in the application form.  Further the 2^nd complainant’s wife was expecting their 2^nd child in the month of July 2021 and on 17.03.2021 the 2^nd complainant requested the opposite party to upgrade the unit No.1301 in Tower 4, a 4 BHK in Almora instead of a 3 BHK in Alteeza which had booked earlier.  Further there was no response and in the month of April and May-2021 2^nd complainant and some of his family members were diagnosed with Covid-19 and it was a very traumatic.  Further the 2^nd complainant requested the opposite party for an update regarding the developments, but there was no response.  

04.    It is the further case of the complainants that, while things stood thus, complainants were shocked to receive the cancellation letter dated: 12.08.2021 with the reference to a demand letter dated: 13.04.2021.  The 2^nd complainant had replied to the cancellation letter through email on 17.08.2021 and sought for an ethical solution.  Hence the cancelling the allotment and forfeiting the entire amount of Rs.20,00,000/- tantamounts to deficiency in service and also amounts to unfair trade practice.  Hence the complaint came to be filed.

05.    It is the further case of the opposite parties that, it has relinquished its right out of the larger property measuring 61,964 Sq. ft. towards parks and open spaces and 19,657 sq. ft. towards road access.  Hence on the said relinquishment of its rights out of the larger property opposite party has become the absolute owner in possession of the remaining land.  The opposite party had issued allotment letter dated: 21.11.2020 to the complainants confirming the allotment of residential apartment No.1803 in Elana, in the Promont being constructed on the schedule property.  Further complainant No.2 was also added as the co-applicant with respect to the booking of residential apartment No.1902, Altezza.  Further opposite party had obtained commencement certificate on 11.01.2013.  Further the complainant had agreed to pay the balance being 90% of the total consideration by April-2021.  Further the complainant sought for an alternative residential apartment from residential apartment No.1902 Altezza to Residential apartment No.12A01, Almora in the scheme of opposite party in March-2021, but the complainant failed to conclude the application process for the residential apartment No. 12A01, Almora.  Further the complainants sought for the booking to be made in the name of their company citing that, it would aid them in the process of loan.  Further the complainants did not produce necessary documents for the booking to be made in favour of the company of the complainants.

06.    It is the further case of the opposite parties that, the complainants were required to make payments towards schedule apartment as per the payment schedule.  Accordingly the demand letter dated: 13.04.2021 and a reminder letter dated: 05.08.2021 seeking payment of the balance amount was sent to the complainants by the opposite party, but the complainants did not make any payments.  Further the complainants have failed to make payment of the outstanding balance even after repeated reminders and ultimately the opposite party was constrained to issue cancellation letter dated: 12.08.2021 for the non-payment of outstanding dues.  Hence it is sought to dismiss the complaint.

07.    To prove the case, the complainant (PW1) has filed affidavit in the form of her evidence in chief and got marked EX.P.1 to EX.P.6 documents.  The Authorized Representative of opposite party No. 1 & 2 (RW-1) has filed affidavit in the form of his evidence in chief and got marked EX.R.1 & EX.R.8 documents.

08.    Counsel for complainants has filed written arguments and counsel for opposite parties has filed written arguments with citations.

09.    The points that would arise for consideration are as under:-

  (1) Whether there is deficiency of service on the part of the opposite parties?

  (2) Whether the complainants are entitle for the 

      relief sought ?

      (3) What order ?

10.    Our findings on the aforesaid points are as follows:-

POINT NO.1:-  In affirmative

POINT NO.2:-  Partly affirmative

POINT NO.3:-  As per the final order

 for the following:

REASONS

11.    POINT NO.1:-  PW.1 and RW.1 have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief. 

12.    It is not in dispute that, it was agreed in between the parties that, the total consideration was Rs.1,94,19,400/-.  Further the complainants have paid Rs.20,00,000/- as advance consideration.  It is the contention of the learned counsel for the opposite parties that, the complainants have failed to make payment towards the schedule property and go on changing the flat.  Further in-spite of demand letter dated: 13.04.2021 and a reminder letter dated: 05.08.2021 calling upon the complainants to make payment of the balance amount towards the schedule apartment the complainants never came forward to do the needful and the opposite party was constrained to issue cancellation letter dated: 12.08.2021 vide EX.P.5 in relation to the schedule apartment in terms of letter of allotment.  Hence there is no deficiency of service on the part of opposite parties. 

13.    It is the contention of the learned counsel for the complainants that, no such demand letter and reminder letter referred by the opposite parties been issued to the complainants and without following the terms and conditions under the letter of allotment abruptly the opposite party has issued cancellation letter vide EX.P.5.

14.    Admittedly the opposite party did not produce the demand letter dated: 13.04.2021 and the reminder letter dated: 05.08.2021.  In EX.P.5 the above said letters been referred, but since the opposite parties did not produce those letters, it could be inferred that, the said letters were not been issued by the opposite parties.  In EX.P.5 letter it was sought to hand-over the original allotment payment receipts and all other correspondences addressed by the opposite party to the complainants and as per cancellation policy the amount of INR 19,18,000/- was forfeited and would not be refunded.  The opposite party did not dispute the email correspondence in between the complainants and the opposite parties vide EX.R.2.  EX.R.2 email correspondence was sent by the opposite party to the complainant after EX.P.5 cancellation letter was issued.  In EX.R.2 the complainants were urged by the opposite party to initiate the payment towards Almora 12A01 apartment and to provide all the required documents for completing the application formalities.  Further in case the complainants wish to cancel the booking, the forfeiture charges could be applicable i.e., 15% of the total consideration.  Further in the email sent by the complainants to the opposite party on 17.08.2021 the complainants have informed to the opposite party that the reminder letter being said to have sent on 05.08.2021 has not been received by the complainant.  By virtue of the contents of email correspondence vide EX.R.2 it is not clear as to whether the opposite party cancelled the application of the complainants vide EX.P.5 or still the opposite party seeks to continue the payment from the complainants.  EX.P.5 and EX.P.6 are one and the same.

15.    It is the further contention of the learned counsel for the complainants that, as per the terms and conditions stated in the application form vide EX.P.3 the opposite party upon non-receipt of payment within the due date shall issue a notice to the allottee to pay the amounts due within 45 days of the date of notice.  Further the allottee shall be liable to pay the due amount with interest accrued thereon as prescribed under Clause (b) hereunder.  The opposite party did not prove that, it has issued notice calling upon the complainants to pay the due amount within 45 days.  Hence the opposite party did not follow the conditions stipulated in the application form vide EX.P.3 given by the complainant while remitting Rs.20,00,000/- advance payment.  Hence we feel the letter of cancellation with the forfeiture of the advance amount was not issued as per the terms and conditions stipulated in EX.P.3 application form.

16.    It is the further contention of the learned counsel for the opposite party that, in terms and conditions and stipulation of EX.P.3 booking form forfeiture of 15% of the sale price has been made.  The condition 6.(b) of the stipulation states as under:-

6.(b) (1) The allotee shall be entitled to cancel the allotment and upon such cancellation PROMONT HILLTOP shall refund the monies paid by the Allotee without interest subject to forfeiture of application money or actual amount paid whichever is higher subject to a maximum of 15% of the sales price. 

15.    Contrary to that, it is the contention of the learned counsel for the complainants that, such condition is an unfair trade practice and an unilateral one.  No doubt the applicant has signed the booking form.  In this case if 15% of the amount paid is forfeited, nothing is to be refunded to the complainants.  Since the opposite party without following the stipulation stated above has issued EX.P.5 cancellation letter, we feel it is an unfair trade practice within the meaning of section 2(1)(47) of Consumer Protection Act, 2019.  Further since the opposite party did not act upon as per the conditions of the application form, it amounts to deficiency of service within the meaning of section 2(11) of Consumer Protection Act, 2019.

16.    It is the further contention of the learned counsel for the opposite party that, it is the right of the opposite party to forfeit the maximum of 15% of the said price and the said amount need not be refunded.  In support of the contention, the counsel relies the judgment rendered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, reported in 2015 SCC Online NCDRC 1613, between DLF Limited Vs. Bhagwathi Narula.  In the said judgment it is observed that, “reasonable amount can be forfeited as earnest money in the event of default on the part of the purchaser”.  Further the amount paid in advance at the time of contract would only considered earnest money.  Further counsel also relies the judgment rendered by Hon’ble National Consumer Disputes Redressal Commission reported in 2017 SCC Online NCDRC 1641, between Kavita Sikka Vs. Oasis Landmark LLP & Another.  In the said judgment it is observed that, “it is evident from the records and pleadings of the complainant that, the complainant was fully aware of the fact that, as per Clause 2.5 of the agreement 20% of the cost of property plus applicable taxes shall be treated as earnest money”.  Further as per the said clause the opposite party would be entitled to forfeit the entire money on cancellation of booking and cannot plead ignorance of fact.

17.    In the case on hand, it is already stated above that, no doubt while signing the application form the complainants had knowledge about the forfeiture clause.   On perusal of EX.P.3 clause 6.(b) the option was given to the allottee for cancelation  of the allotment and at that time the opposite party can exercise to forfeit the maximum of 15% of the sale price.  Further as per Clause 6.(b)(iii) the opposite party can exercise the said right of cancellation by issuing a notice of 45 days.  The opposite party did not issue such notice.  Further in Clause-6(ii) it is stated that, on the default of payment by the allottee, the opposite party is entitled to cancel the allotment before registration of the agreement or deed of conveyance and in that event also maximum of 15% of sale price could be forfeited.  In the case on hand, it was not the cancellation from the side of the allottee.  Hence, any fault could not be attributed against the complainants.  In the cited judgment it is said that, in the event of default on the part of purchaser forfeiture of earnest money could be done.  Hence the facts of the case in the cited judgments is entirely different from the facts of the case in hand and the same is not applicable to the case in hand.  For the above said reasons, we feel there is deficiency of service on the part of opposite parties.  Accordingly we answer this point in affirmative.

18.    POINT NO.2:-     The complainants claimed for the return of Rs.20,00,000/- paid with interest at the rate of 12% per annum.  In the application form vide EX.P.3 it is mentioned that, Rs.20,00,000/- has been paid by the complainants and the complainant has also produced EX.P.2 deposit of the Pay-in-slip.  On perusal of the same, it appears that, Rs.20,00,000/- has been remitted to the opposite party on 04.11.2020.  Since the opposite party without following the stipulation as per EX.P.2 had got cancelled the application of the complainant to have a flat and the act of opposite party amounts to unfair trade practice and there is deficiency in service on the part of the opposite party.  The opposite party shall refund the said amount of Rs.20,00,000/-.  We feel the interest claimed at the rate of 12% per annum is an exorbitant one.  We feel interest at the rate of 9% per annum from 04.11.2020 till realization on the amount of Rs.20,00,000/- could be imposed.  The complainant claimed a sum of Rs.1,00,000/- towards mental agony.  We feel since the complainant has changed his mind to have the apartment from unit No.803 to 1902 and from 1902 to unit No.12A-01 the complainant is entitled for a sum of Rs.20,000/- towards mental agony.  Further the act of opposite parties made the complainants to approach this Commission for the relief in question and to make several correspondences.  Hence the complainant is entitled for a sum of Rs.10,000/- towards litigation cost.  Accordingly we answer this point party in affirmative.

19.    POINT NO.3:- In view of the discussion made above, we proceed to pass the following:-

ORDER

The complaint is allowed in part.

The opposite party No.1 & 2 are jointly and severally liable to pay a sum of Rs.20,00,000/- to the complainants with interest at the rate of 9% per annum from 04.11.2020 till realization and a sum of Rs.20,000/- towards mental agony and damages and a sum of Rs.10,000/- towards litigation cost. 

The opposite party No.1 & 2 shall comply the order within 30 days.   In case, the opposite party No.1 & 2 fail to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 30^th Day of MAY 2023)                                             

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    

            MEMBER               MEMBER              PRESIDENT

//ANNEXURE//

Witness examined for the complainant side:

Sri. Koushik.K, the complainant (PW-1) has filed affidavit in the form of his evidence in chief.

Documents got marked for complainant side:

1. Certificate U/s.65(B) of Indian Evidence Act – EX.P.1.
2. Copy of the receipt – EX.P.2.
3. Copy of the application form – EX.P.3
4. Computer downloaded email – EXP.4.
5. Computer downloaded cancellation letter dt.12.08.2021 with its appendix – EX.P.5.
6. Original cancelation letter dt.12.08.2021 with postal cover – EX.P.6.

Witness examined for the opposite party side: 

Sri. Paul Lukachen, Service Manager, in opposite party (RW-1) has filed affidavit in the form of his evidence in chief.

Documents got marked for the Opposite Party side:

1. Certificate U/s.65(B) of Indian Evidence Act – EX.R.1.
2. Computer downloaded email  - EX.R.2.
3. Copy of application form dt.04.11.2020 – EX.R.3.
4. Copy of allotment letter dt.24.11.2020 – EX.R.4.
5. Copy of application for allotment dt.18.01.2021 – EX.R.5.
6. Copy of allotment letter dt.05.02.2021 – EX.R.6.
7. Copy of occupancy certificate – EX.R.7.
8. Copy of letter of authorization dt.02.03.2021 – EX.R.8.

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    

            MEMBER               MEMBER              PRESIDENT