Full Judgment
R. Lakshminarasimha Rao, Incharge President
The unsuccessful complainant is the appellant.
The complaint is filed by the appellant for a direction to the respondent to return the amounts paid by him amounting to Rs.5,00,000/- together with interest and compensation of Rs.1,50,000/- and costs.
The appellant submitted that the respondent is doing business of selling garments and textiles and also business in real estate under the name and style of S.V.Group and R.S.Brothers Projects. The appellant submitted that he approached the respondent for purchase of north facing flat No.229 of Venkadri in II block and paid Rs.5,00,000/- towards sale consideration. The appellant submitted that the respondent has to complete the construction and hand over possession of the allotted flat No.229, which is east facing and as the flat is not having vastu norms, the appellant dropped the idea of purchasing the flat and requested the respondent to return the sale consideration of Rs.5,00,000/-. The appellant submitted that as the respondent has not responded, he got issued notice on 22-8-2011 demanding refund of the amount and the respondent gave a reply that the appellant is entitled to refund of the amount after deducting of 20% of the amount which the appellants claim to be deficiency in service.
The respondent resisted the complaint. He contended that the appellant approached him to purchase of flat No.229 in Venkatdri II Block venture and initially paid Rs.50,000/- towards advance and thereafter paid Rs.4,50,000/- with inordinate delay. The respondent submitted that as per the terms of the booking, the appellant has to pay 25% of the amount as on the date of agreement and has not paid the remaining 25% of the amount. The respondent submitted that the appellant issued a cheque bearing No.718425 dt.13-10-2009 for Rs.1,50,000/- and another cheque for Rs.83,000/- which were dishonoured with endorsement insufficient funds and thereafter the respondent issued a letter dated 04-8-2011 for payment of balance amounts and the said letter was returned to the respondent. The respondent submitted that the allegation that the flat 229 is east facing and not according to vastu is incorrect and submitted that he raised funds to complete the flats and is entitled to forfeit 20% of the amount from Rs.5,00,000/- if the appellant seeks for refund of the amount.
The appellant filed his affidavit and relied on Exs.A1 to A12 and the respondent filed his affidavit and relied on Ex.B1.
The District Forum allowed the complaint on the premise of failure of the respondent to proceed with the construction of the Flat as agreed to be sold to the appellant. The District Forum awarded an amount of Rs.4,00,000/- with interest @9% p.a. thereon from 22.08.2011.
The complainant feeling dissatisfied by the order of the District Forum awarding a sum of Rs.4,00,000/- as against the amount he paid, Rs.5,00,000/- filed appeal contending that the appellant has not cancelled the agreement voluntarily and on account of the failure of the respondent, the contract was terminated as also that for the fault on the part of the respondent, the appellant cannot be penalized.
The point for consideration is whether the order of the District Forum suffers from mis-appreciation of facts or law?
The appellant submitted application under ExB1 for purchase of plot bearing number 229 and paid an amount of Rs.50,000/- towards advance and later the appellant paid a sum of Rs.4,50,000/- on various dates, viz., 06-6-2009 paid Rs.50,000/-, on 04-7-2009 paid Rs.1,00,000/- on 12-12-2010 paid Rs.87,000/-, on 10-10-2009 paid Rs.1,50,000/-, on 21-12-2009 paid Rs.83,000/- and on 12-12-2010 paid Rs.30,000/-. The terms of the application form are reproduced herein below:
i) flat once allotted cannot be changed
ii) Cancellation of flat leads to forfeiture of 20% of the amount paid. The balance will be paid after 3 months from the date of cancellation of the flat without any interest.
iii) Amount shall be paid in accordance with the terms and conditions of the agreement of sale.
iv) The possession of the flat shall be given only after 15 days from the date of obtaining no due certificate from the office.
v) Specification can be altered at extra cost
vi) Registration charges, Service charges and VAT will be borne by the customer.
The appellant got issued notice dated 22.08.2011 claiming refund of the amount on the premise of change in its facing and location of flat from the layout shown to him at the time of allotting the flat and on account of failure of the respondent to complete the construction of the flat within the stipulated period of one year from the date of application form. The District Forum has deducted an amount of Rs.1,00,000/- from out of the amount of Rs.5,00,000/- under forfeiture clause of the application form.
The learned counsel for the appellant has contended that the lapse on the part of the respondent cannot be made basis to penalize the appellant. The appellant has got issued notice dated 22.08.2011 that there has been discrepancy in the plan shown to him at the time of allotment of the flat and the one shown to him later. The notice reads as under:
œThat my client sates that due to non completion of the work at your end which you promised that possession of flat will be given in one year which is a major default from your side. Further at the time of initial deposit and allotment of flat No.229, you have shown a approved plan and now you have changed the plan which is totally contrary to the first shown plan. Due to which my client had already informed to you that the later plan is not convenient to him and even as per vasthu. Hence he requested for the refund of the amount paid by him. That inspite of lapse of time there is no response from your end.
That non refund of the amount to my client will amount to unfair trade practice and also deficiency in service on your part. Hope interest by taking it to consideration the genuine reasons stated by my client, he is entitled to get back the amount. Further your organization will take steps in refunding the amounts at the earliest. Inspite of receipt of this notice if no positive action comes forward my client will be left with no other option?
In its reply dated 4.11.2011 the respondent had not chosen to deny the assertion of the appellant as to discrepancy in the lay out in regard to facing of the flat and other reasons assigned therefor , by the appellant. The reply reads as follows:
œMy client states that client approached my client to purchase the flat bearing No.229 in the block named as Venkatadri and paid a sum of Rs.50,000/- as token advance. Your client later on paid a sum of Rs.4,50,000/- on various dates. Your client thus in all paid a sum of Rs.5,00,000/- towards advance. Your client agreed to pay 1/4th of the total agreed consideration within 30 days from the date of booking i.e. 09-06-2009. It was agreed between the parties that upon payment of 1/4th amount an agreement of sale will be executed. It is pertinent to state that your client signed an application in token of acceptance of terms and conditions. It is specifically mentioned in such application that cancellation of booking entitles forfeiture of 20% of the amount paid. Your client committed default in the payment of the upfront amount of 25% of the agreed consideration leave about the entire balance consideration.
My client states that my client in such circumstances addressed a letter dated 04-8-2011 to your client informing him that the work relating to subject flat was completed upto 75% and further demanding your client to clear dues before 15-8-2011. Inspite of demand made by my client, your client failed to pay the amount. It is incorrect to allege that my client agreed to deliver possession of flat within one year. It is also incorrect to allege that revised plan in any way materially affected the subject plot. It is pertinent to state your client is aware that flat agreed to be sold was as per the revised plan. It is incorrect to allege that flat as per revised plan is not as per Vaastu. Your client having committed default is trying to wriggle out of his obligation. My client is entitled to forfeit 20% of the amount paid. In other words my client forfeited Rs.1,00,000/- out of Rs.5,00,000/-. Your client is at liberty to approach my client and receive the amount of Rs.4,00,000/- under a proper receipt and acknowledgement?
In absence of denial of discrepancy in the layouts, and owing to its failure to complete construction of the flat within the agreed period of one year, the respondent cannot be heard to state that the appellant being a defaulter, it is entitled to forfeit 20% of the amount paid by the appellant. The claim for forfeiture of 20% of the amount received from the appellant is unsustainable more particularly so where there is variation in the layouts touching the root of the terms of the application form. The finding returned by the District Forum, as such in this regard is liable to be set aside. This Commission hold the appellant entitled to the entire amount paid to the respondent. The rest of the order is confirmed.
In the result, the appeal is allowed. The order of the District Forum is modified enhancing the amount to be refunded from Rs.4,00,000/- to Rs.5,00,000/-. Rest of the reliefs granted confirmed. The parties shall bear their own costs.