Date of Filing:04.01.2022

Date of Disposal:30.05.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

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

ORDER

SRI RAMACHANDRA.M.S,PRESIDENT

1. The complainants files a complaint with this Commission under Section 35 of the Consumer Protection Act of 2019 for deficiency of service and such other reliefs.

2.  The following are the complaint's key facts:

This is case of the complainant that the complainant has approached OP company to purchase a flat from OP in layout to be formed by the OP company in the name and style of “Supertech the Valley”. Wherein  the OP has carried out the project of “Group Housing Scheme”. The complainant has applied for a flat  in the project by filling the application form and also paid booking amount of Rs.94,975/- in favour of RevitalRealtity Pvt. Ltd., payment is made through cheque on 30.11.2018.

3. It is case of complainant that the OP has intimated the complainant that as he has been successful in the lucky draw which is held on 27.02.2019. The OP offered an unit no.305 in Tower-C, measuring 551Sq.ft. for a total sale consideration of Rs.18,99,500/- and allotment letter is also issued  on 02.03.2019. Though on the same allotment letter the complainant was requested to make payment of Rs.3,79,900/- in favour of the OP company towards payment of 20% of the total sale consideration.

4.  The complainant further contended that due to financial obligations  he was unable to arrange the amount within a such short notice and the complainant informed OP to cancel the allotment through e-mail dt.15.04.2019 and also requested the OP to refund the sum of Rs.94,975/-, but the OP neither replied to the mail nor refunded the said amount to the complainant. Upon which the complainant made all his best efforts both through email and also personally visited OP company office and sought for the cancellation of the booking of flat and also requested to refund the said amount. All the effort of the complainant went in vain. Nothing is materializedas requested by the complainant. Even upon the receipt of legal notice the OP has not responded positively. The complainant was forced to initiate present complaint and sought for relief of refund of the said amount along with interest for which he is entitled.Aggrieved by the act of the OP the complainant was forced to file the present complaint.

5. Notice to OP-duly served, OP-1 remained absent and placed exparte.  OP-2 represented by counsel and filed written version and despite of sufficient opportunity the evidence of OP-2 is taken as not filed.

6. The complainant filed chief-examination affidavit along with relevant documents  as annexures produced in the complaint.

7. Heard arguments. The matter is reserved for order.

8. The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency in service on the part of the OP as alleged in the complaint and thereby prove that he is entitle for the relief sought?
2. What order?

9. The findings on the above points are as under:

Point No.1                :       Partly in Affirmative

Point No.2                :       As per final order

REASONS

10. POINT NO.1:-On perusal of the complainant chief examination affidavit by considering annexure documents produced in the complaint. It is clear that complainant has approached OP company to purchase a flat from OP in layout to be formed by the OP company in the name and style of “Supertech the Valley”. Wherein the OP has carried out the project  of“Group Housing Scheme”. The complainant has applied for a flat in the project by filling the application form and also paid booking amount of Rs.94,975/- in favour of RevitalRealtity Pvt. Ltd., payment is made through cheque on 30.11.2018.

11. It is case of the complainant that the OP has intimated the complainant that as he has been successful in the lucky draw which is held on 27.02.2019. The OP offered an unit no.305 in Tower-C, measuring 551Sq.ft. for a total sale consideration of Rs.18,99,500/- and allotment letter is also issued  on 02.03.2019. Though the same allotment letter the complainant was requested to make payment of Rs.3,79,900/- in favour of the OP company towards payment of 20% of the total sale consideration.

12. The complainant further contended that due to financial obligations  he was unable to arrange the amount within a such short notice and the complainant informed OP to cancel the allotment through e-mail dt.15.04.2019 and also requested the OP to refund the sum of Rs.94,975/-, but the OP neither replied to the mail nor refunded the said amount to the complainant. Upon which the complainant made all his best efforts both through email and also personally visited OP company office and sought for the cancellation of the booking of flat and also requested to refund the said amount. All the effort of the complainant went in vain. Nothing is materialized  asrequested by the complainant. Even upon the receipt of legal notice the OP has not responded positively. The complainant was forced to initiate present complaint and sought for relief of refund of the said amount along with interest for which he is entitled.

13. OP represented by counsel has filed version statement, wherein they denied entire complaint allegations and any deficiency of service on their part during the course of service to the complainant. Their specific contention is that as per terms and conditions of the agreement which is entered between the complainant and OP that deduction of 1% of the amount out of the said amount paid by the complainant. The terms and conditions clearly stipulates deduction of 1% of amount out of the paid amount if there any cancellation of agreement for purchase of flat. By harping upon the said terms and conditions the OP has clearly and categorically admitted to refund the said amount only by deducting 1% amount from the said amount. As per the written version at para-8 the OP has admitted to refund a sum of Rs.69,675/-. The OP is not admitted the total liability for the payment of said amount. By contending the same the OP has prayed for the dismissal of the complaint as there is no deficiency on their part.

14. The chief examination affidavit reiterated the complaint averments. From the perusal of the contention of both the parties it is crystal clear that there is transaction between the complainant and the OP Company. Wherein the complainant has agreed to purchase flat in the project of the OP. By agreeing to purchase the same the complainant has entered into agreement, wherein the OP has agreed to sale the flat to the complainant for total sale consideration of Rs.18,99,500/- and the complainant has made booking advance payment of Rs.94,973/- to the OP to purchase the flat. All these fact and events  are not at all disputed by the OP. On the other hand at para-8 of the version statement, the OP has admitted to refund a sum of Rs.69,675/- to the complainant out of the sum of Rs.97,973/-. This piece of admission to pay part liability by the OP companygoes to the root of the case. Wherein when the OP has admitted the part of liability to refund the amount, the question for consideration for deduction of 1% from the said deposit amount needs to be considered. The several rulings of the Hon’ble Appellate Authority and also Supreme Court of India  has laid down that any condition in the agreement if it is against principles of  natural justice and if the condition laid down by the party is one sided, arbitrary and if is not in the interest of justice  and such condition is not  binding on the party who ever enter into agreement. Here, the condition which is laid down by the OP company is to be held as against the principles of settled law and when it is arbitrary and one sided. Such conditions is not binding on either of the parties. When such being the case and by considering the terms of  OP, the commission is of the definite opinion that there is clear deficiency in service on the part of  OP, for which they are held liable to pay entire advance amount which is paid by the complainant along with other reliefs which is granted in the complaint.

15. In view of the above discussion, by considering the facts of the complaint averments and also by taking note of the annexure documents which are produced by the complainant, the complaint filed by the complainant deserves to be allowed for the above reasons.Accordingly,  the Point No.1 we answer partly in affirmative.

16. POINT NO.2:- In the result, we passed the following:

                             ORDER

1. Complaint is allowed in part.
2. The OP is   directed to refund Rs.94,975/- along with interest at the rate of 8% p.a. from the date of payment till payment is made  to the complainant.
3. The OP is   further directed to pay a sum of  Rs.10,000/- as compensation towards deficiency of service and Rs.5,000/- towards litigation   charges. OP fails to comply the order within 45 days from the date of order, compensation amount and cost of litigation shall carry interest at 6% p.a. for non-compliance of the order.
4. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 30^stMay 2023)

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)       

 MEMBER                                  MEMBER

Witness examined on behalf of the complainant by way of affidavit:Sri Rajesh Kumar-who being the complainant

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit:Nil

Documents produced by the OP: Nil

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*