Smt. Nisha Gupta Vs. M/S. Lodha Healthy Construction and Developers Private Limited - Court Judgment

SooperKanoon Citationsooperkanoon.com/1107490
CourtAndhra Pradesh State Consumer Disputes Redressal Commission SCDRC Hyderabad
Decided OnMar-08-2013
Case NumberC.C.No. 59 of 2011
JudgeTHE HONOURABLE MR. R. LAKSHMINARASIMHA RAO, MEMBER & THE HONOURABLE MR. THOTA ASHOK KUMAR, MEMBER
AppellantSmt. Nisha Gupta
RespondentM/S. Lodha Healthy Construction and Developers Private Limited
Excerpt:
oral order: (r. lakshmi narasimha rao, member) 1. the complaint is filed seeking for refund of `59,91,410/- with interest 18% thereon and `2,00,0000/- towards compensation. 2. the averments of the complaint are the complainant being induced by the representatives of the opposite party-company entered into agreement with the opposite party to purchase flat no.900 in 9th floor, belmont at kukatpalli housing board, hyderabad for consideration of `2,21,02,639/-. at the time, the representatives of the opposite party company informed the complainant that she need not pay registration charges and other charges and the construction of the apartment would be completed within 18 months from the date of agreement. the complainant paid a total earnest money of `59,91,410/- through cheques from the month of december,2008 to march, 2009. 3. it is stated that the opposite party has not furnished copy of the agreement of sale to the complainant informing her that it is with their head office at mumbai and the opposite party has supplied copy of agreement dated 27.07.2009 to the complainant in the month of august,2009 and the complainant came to know that several terms of the agreement such as society charges, municipal taxes, registration charges etc., were not agreed upon. the complainant expressed her displeasure of the charges mentioned in the agreement of sale and the representatives of the opposite party assured her that she need not worry about them. 4. the opposite party has sent letters making one or the other demands and there was no proper response to the enquiry of the complainant. the complainant got issued notice dated 22.03.2010 and terminated the agreement of sale and demanded the opposite party to refund the earnest money of `51,94,910/- with interest @ 18% p.a. and the opposite party kept on issuing demand notices to the complainant. the opposite party has been indulging in unfair trade practice and it is liable to pay compensation under default clause of the agreement to the complainant. hence, the complaint. 5. the opposite party resisted the claim by filing written version and contended that it is constructing and developing the project “lodha belleza” at hyderabad and the complainant entered into agreement with it to purchase apartment no.900 admeasuring 4761 sft in the project on 14.12.2008 for total consideration of `2,34,24,075/-. the complainant paid an amount of `4,50,000/- through cheque at the time of submitting application form and she paid various amounts due and payable, `55,45,410/- up till 15th may,2009 and she did not make any payment in furtherance to the amount paid and she assured the opposite party that she will not commit any default and she would get the agreement of sale dated 27.07.2009 registered. as per the agreement, the date of possession is 30.06.2011 with grace period of 6 months. the representatives of the opposite party have not induced in any manner the complainant and the complainant has not issued any notice to the opposite party on 25.03.2010. 6. the opposite party issued letters dated 10.02.2010, 07.04.2010, 07.09.2010, and 07.10.2010 calling upon the complainant to pay the amount due payable in accordance with the payment schedule. on 6.11.2010 the opposite party addressed letter informing the complainant that if the complainant does not pay the amount due, the booking would be cancelled and there was no response from the complainant. the opposite party, as a good will gesture addressed letter dated 9.05.2011 informing the complainant that she can pay the amount due along with interest due on delayed payment and on 31.03.2011 the opposite party recorded cancellation of booking of the apartment in terms of the application form. 7. the complainant defaulted in making payment of the amount due as per the terms of the agreement and the complainant is liable to pay cancellation charges of 10% on the consideration value and she did not approach the opposite party to receive the amount of forfeiture and refund. as the complainant committed breach of the terms of the agreement consequent upon the cancellation of the agreement , the opposite party is entitled to and has forfeited the sum of `22,10,263/- being the 10% of the consideration value and issued cheque for the balance amount of `37,81,14/-. 8. the complainant suppressed material facts that the charges under the head other charges are clearly mentioned in the agreement of sale and the damage caused due to her default in making payment of the amount and that the opposite party has shown its willingness to pay the balance amount to the complainant after deducting charges towards forfeiture and she deliberately suppressed the terms and conditions of het agreement of sale and approached this commission with unclean hands. hence, prayed for dismissal of the complaint. 9. the complainant has filed her affidavit and the documents, exa1 to a4.   on behalf of the opposite party company, its authorized signatory filed his affidavit and the documents exs.b1 to b11. 10. the points for consideration are: i) whether the opposite parties committed deficiency in service in providing the amenities to the building? ii) to what relief? 11. point no1: it is beyond dispute between the parties that the complainant purchased the flat bearing number 900 admeasuring 4761 sft in the project on 14.12.2008 for total consideration of `2,34,24,075/-. the complainant paid an amount of `4,50,000/- through cheque at the time of submitting application form and she paid various amounts due and payable, `55,45,410/- up till 15th may,2009 and she did not make any payment in furtherance to the amount paid. the complainant entered into agreement with the opposite party on 27.07.2009 and in terms of the agreement the complainant has to make payment and the opposite party should complete construction of the flat and hand over it to the complainant. 12. the complainant contends that the representatives of the opposite party had misrepresented her about the charges mentioned in the agreement of sale. she has stated that she is not aware of certain terms and conditions mentioned in the agreement of sale. the complainant proceeded with the transaction basing on the agreement of sale and there is no evidence on record to substantiate her contention that her signature was obtained in the agreement of sale and she is not aware of the terms and conditions mentioned in the agreement of sale. 13. before entering into the agreement for sale the terms of which the complainant claims to have no knowledge, she submitted application form on 14.12.2008 by enclosing thereto cheque for `4,50,000/- and the opposite party issued “customer information sheet”. the application form contains terms and conditions of the contract as to allotment of flat , schedule of payment, cancellation of booking etc., whereas the customer information sheet contains payment schedule. the application form denotes the amount of `4,50,000/- as application money while the customer information sheet reflects the same amount as booking advance. the application form provides for treating the amount of `4,50,000/- as advance subject to acceptance of the application . thus, the amount of `4,50,000/- can be considered as earnest money and not the rest of money paid by the complainant. the complainant describes the entire amount she paid as earnest money which cannot be accepted in the light of payment schedule which runs over 17 installments payable in phased manner. 14. the complainant has to make payment in accordance with clause 6.0 of the application form and payment schedule mentioned in the customer information sheet till execution of agreement of sale. the delayed payment in terms of clause 6.0 of the agreement of sale carries interest @18% p.a.. clause 6.0 of the application form reads as under: “6.0. schedule of payments: the applicant/s shall be required to make payments in accordance with the schedule of payments stated in the said allotment letter and/or the said agreement (when executed). all over-due payments shall attract interest at 18% per annum, from the dates they fall due till the date of payment.” 15. the complainant made payment of installments till may,2009 and she stopped payment of the amount thereafter whereby the opposite party issued demand letters dated 10.02.2010, 07.04.2010, 07.09.2010, and 07.10.2010 calling upon the complainant to pay the amount due payable in accordance with the payment schedule mentioned in the customer information sheet and the agreement for sale. 16. on 6.11.2010 the opposite party addressed letter informing the complainant that if the complainant does not pay the amount due, the booking would be cancelled and there was no response from the complainant. the opposite party extended time through letter dated 9.05.2011 for the complainant to pay the amount due along with interest due on delayed payment and on 31.03.2011 the opposite party recorded cancellation of booking of the apartment in terms of the application form. 17. the complainant got issued notice on 22.03.2010 terminating the agreement of sale and demanded the opposite party to refund the amount paid by her. cancellation clause of the application form and agreement for sale comes into operation on cancellation of the allotment opted by the complainant. the cancellation clause mentioned at clause 9.0 of the application form read as under: 9.0 cancellation: if the applicant wishes to withdraw the application, the application money will not be refunded. if the applicant wishes to cancel the booking at any point after intimation of acceptance, cancellation charges of 10% of consideration value would be applicable. the applicant further declares that after reading and/or being explained and having understood the content of this clause (9.0), the applicant hereby agrees to abide the said clause (9.0) stipulated by the company out of free will and consent.” 18. what is mentioned in the application form in regard to the rights and liabilities of the parties on cancellation of the allotment is elaborately dealt with in the agreement of sale in clause 20 which reads as follows: “on the purchaser committing default in payment on due date of any amount due and payable by the purchaser/s to the builder/promoter under this agreement (including his/her proportionate share of taxes levied by concerned local authority and other outgoings) and/or on the purchaser committing breach of any of the terms and conditions herein contained, the builder/promoter shall be entitled at its option to terminate this agreement and in such event the purchaser shall have no right of any nature whatsoever either against and/or in respect of the said residential apartment or against the builder/promoter. provided always that the power of termination herein before contained shall not be exercised by the builder/promoter unless and until the builder/promoter shall have given to the purchaser (15) fifteen days prior notice in writing of its intention to terminate this agreement and of the breach or breaches of terms and conditions in respect of which it is intended to terminate the agreement and default shall have been made by the purchaser/s in remedying such breach or breaches within a period of 15 days after the giving of such notice: provided further that upon termination of this agreement as aforesaid, the builder/promoter shall refund in 12 equal monthly instalments commencing from the 13th month of such termination to the purchaser/s the amounts, which may till then have been paid by the purchaser to the builder/promoter in respect of the residential apartment after deducting therefrom towards liquidated damages ( and not as a penalty) 10% of the total price in respect of the residential apartment payable hereunder. the builder/promoter shall not be liable to pay to the purchaser any interest on the amount so refunded. ” 19. the opposite party has addressed letter dated 31.03.2011 subsequent to the notice dated 22.03.2010 whereunder complainant opted for cancellation of allotment and the opposite party through its letter expressed its readiness to refund the amount after deducting 10% of the value of the flat, `37,81,147/-. the complainant refused to receive the amount and claimed for refund of the entire amount without assigning any reason. the opposite party has filed copy of cheque dated 31.08.2012. 20. in the agreement of sale it is mentioned that on cancellation of the allotment, the amount payable to the complainant does not carry any interest. admittedly, the complainant paid the installments till may, 2009 and from the time till february, 2010 when the opposite party issued letter 10.02.2010 and thereafter on 07.04.2010, 07.09.2010, and 07.10.2010.again from october,2010 till may,2011 and from the time till march, 2012 the opposite party had not taken steps either to remind the complainant of the installments due or cancel the allotment. the opposite party has not chosen to cancel the allotment till the complainant terminated it by issuing notice on 22.03.2012. the failure of the opposite party on the aspect constitutes deficiency in service on its part and it is liable to pay an amount of `50,000/- towards compensation to the complainant. 21. in the result, the complaint is allowed directing the opposite party to refund the amount of `37,81,147/- and pay a sum of `50,000/- towards compensation together with costs of `5,000/-. time for compliance four weeks.
Judgment:

Oral Order: (R. Lakshmi Narasimha Rao, Member)

1. The complaint is filed seeking for refund of `59,91,410/- with interest 18% thereon and `2,00,0000/- towards compensation.

2. The averments of the complaint are the complainant being induced by the representatives of the opposite party-company entered into agreement with the opposite party to purchase Flat No.900 in 9th Floor, Belmont at Kukatpalli Housing Board, Hyderabad for consideration of `2,21,02,639/-. At the time, the representatives of the opposite party company informed the complainant that she need not pay registration charges and other charges and the construction of the apartment would be completed within 18 months from the date of agreement. The complainant paid a total earnest money of `59,91,410/- through cheques from the month of December,2008 to March, 2009.

3. It is stated that the opposite party has not furnished copy of the agreement of sale to the complainant informing her that it is with their head office at Mumbai and the opposite party has supplied copy of agreement dated 27.07.2009 to the complainant in the month of August,2009 and the complainant came to know that several terms of the agreement such as society charges, Municipal Taxes, registration charges etc., were not agreed upon. The complainant expressed her displeasure of the charges mentioned in the agreement of sale and the representatives of the opposite party assured her that she need not worry about them.

4. The opposite party has sent letters making one or the other demands and there was no proper response to the enquiry of the complainant. The complainant got issued notice dated 22.03.2010 and terminated the agreement of sale and demanded the opposite party to refund the earnest money of `51,94,910/- with interest @ 18% p.a. and the opposite party kept on issuing demand notices to the complainant. The opposite party has been indulging in unfair trade practice and it is liable to pay compensation under default clause of the agreement to the complainant. Hence, the complaint.

5. The opposite party resisted the claim by filing written version and contended that it is constructing and developing the project “Lodha Belleza” at Hyderabad and the complainant entered into agreement with it to purchase Apartment No.900 admeasuring 4761 sft in the project on 14.12.2008 for total consideration of `2,34,24,075/-. The complainant paid an amount of `4,50,000/- through cheque at the time of submitting application form and she paid various amounts due and payable, `55,45,410/- up till 15th May,2009 and she did not make any payment in furtherance to the amount paid and she assured the opposite party that she will not commit any default and she would get the agreement of sale dated 27.07.2009 registered. As per the agreement, the date of possession is 30.06.2011 with grace period of 6 months. The representatives of the opposite party have not induced in any manner the complainant and the complainant has not issued any notice to the opposite party on 25.03.2010.

6. The opposite party issued letters dated 10.02.2010, 07.04.2010, 07.09.2010, and 07.10.2010 calling upon the complainant to pay the amount due payable in accordance with the payment schedule. On 6.11.2010 the opposite party addressed letter informing the complainant that if the complainant does not pay the amount due, the booking would be cancelled and there was no response from the complainant. The opposite party, as a good will gesture addressed letter dated 9.05.2011 informing the complainant that she can pay the amount due along with interest due on delayed payment and on 31.03.2011 the opposite party recorded cancellation of booking of the apartment in terms of the application form.

7. The complainant defaulted in making payment of the amount due as per the terms of the agreement and the complainant is liable to pay cancellation charges of 10% on the consideration value and she did not approach the opposite party to receive the amount of forfeiture and refund. As the complainant committed breach of the terms of the agreement consequent upon the cancellation of the agreement , the opposite party is entitled to and has forfeited the sum of `22,10,263/- being the 10% of the consideration value and issued cheque for the balance amount of `37,81,14/-.

8. The complainant suppressed material facts that the charges under the head other charges are clearly mentioned in the agreement of sale and the damage caused due to her default in making payment of the amount and that the opposite party has shown its willingness to pay the balance amount to the complainant after deducting charges towards forfeiture and she deliberately suppressed the terms and conditions of het agreement of sale and approached this Commission with unclean hands. Hence, prayed for dismissal of the complaint.

9. The complainant has filed her affidavit and the documents, ExA1 to A4.   On behalf of the opposite party company, its Authorized Signatory filed his affidavit and the documents Exs.B1 to B11.

10. The points for consideration are:

i) Whether the opposite parties committed deficiency in service in providing the amenities to the building?

ii) To what relief?

11. POINT NO1: It is beyond dispute between the parties that the complainant purchased the Flat bearing number 900 admeasuring 4761 sft in the project on 14.12.2008 for total consideration of `2,34,24,075/-. The complainant paid an amount of `4,50,000/- through cheque at the time of submitting application form and she paid various amounts due and payable, `55,45,410/- up till 15th May,2009 and she did not make any payment in furtherance to the amount paid. The complainant entered into agreement with the opposite party on 27.07.2009 and in terms of the Agreement the complainant has to make payment and the opposite party should complete construction of the flat and hand over it to the complainant.

12. The complainant contends that the representatives of the opposite party had misrepresented her about the charges mentioned in the Agreement of Sale. She has stated that she is not aware of certain terms and conditions mentioned in the agreement of sale. The complainant proceeded with the transaction basing on the Agreement of Sale and there is no evidence on record to substantiate her contention that her signature was obtained in the Agreement of Sale and she is not aware of the terms and conditions mentioned in the Agreement of Sale.

13. Before entering into the Agreement for sale the terms of which the complainant claims to have no knowledge, she submitted application form on 14.12.2008 by enclosing thereto cheque for `4,50,000/- and the opposite party issued “Customer Information Sheet”. The Application Form contains terms and conditions of the contract as to allotment of Flat , schedule of payment, cancellation of booking etc., whereas the Customer Information Sheet contains payment schedule. The Application Form denotes the amount of `4,50,000/- as application money while the Customer Information Sheet reflects the same amount as booking advance. The application form provides for treating the amount of `4,50,000/- as advance subject to acceptance of the application . Thus, the amount of `4,50,000/- can be considered as earnest money and not the rest of money paid by the complainant. The complainant describes the entire amount she paid as earnest money which cannot be accepted in the light of payment schedule which runs over 17 installments payable in phased manner.

14. The complainant has to make payment in accordance with Clause 6.0 of the Application Form and payment schedule mentioned in the Customer Information Sheet till execution of Agreement of Sale. The delayed payment in terms of Clause 6.0 of the Agreement of Sale carries interest @18% p.a.. Clause 6.0 of the Application Form reads as under:

“6.0. Schedule of Payments: The Applicant/s shall be required to make payments in accordance with the Schedule of Payments stated in the said Allotment Letter and/or the said Agreement (when executed). All over-due payments shall attract interest at 18% per annum, from the dates they fall due till the date of payment.”

15. The complainant made payment of installments till May,2009 and she stopped payment of the amount thereafter whereby the opposite party issued demand letters dated 10.02.2010, 07.04.2010, 07.09.2010, and 07.10.2010 calling upon the complainant to pay the amount due payable in accordance with the payment schedule mentioned in the Customer Information Sheet and the Agreement for Sale.

16. On 6.11.2010 the opposite party addressed letter informing the complainant that if the complainant does not pay the amount due, the booking would be cancelled and there was no response from the complainant. The opposite party extended time through letter dated 9.05.2011 for the complainant to pay the amount due along with interest due on delayed payment and on 31.03.2011 the opposite party recorded cancellation of booking of the apartment in terms of the application form.

17. The complainant got issued notice on 22.03.2010 terminating the agreement of sale and demanded the opposite party to refund the amount paid by her. Cancellation Clause of the Application Form and Agreement for Sale comes into operation on cancellation of the allotment opted by the complainant. The cancellation Clause mentioned at Clause 9.0 of the Application Form read as under:

9.0 Cancellation: If the Applicant wishes to withdraw the application, the application money will not be refunded. If the Applicant wishes to cancel the booking at any point after intimation of acceptance, cancellation charges of 10% of consideration value would be applicable. The Applicant further declares that after reading and/or being explained and having understood the content of this Clause (9.0), the Applicant hereby agrees to abide the said Clause (9.0) stipulated by the Company out of free will and consent.”

18. What is mentioned in the Application Form in regard to the rights and liabilities of the parties on cancellation of the allotment is elaborately dealt with in the Agreement of Sale in Clause 20 which reads as follows:

“On the purchaser committing default in payment on due date of any amount due and payable by the Purchaser/s to the Builder/Promoter under this Agreement (including his/her proportionate share of taxes levied by concerned local authority and other outgoings) and/or on the Purchaser committing breach of any of the terms and conditions herein contained, the Builder/Promoter shall be entitled at its option to terminate this agreement and in such event the Purchaser shall have no right of any nature whatsoever either against and/or in respect of the said Residential Apartment or against the Builder/Promoter. Provided always that the Power of termination herein before contained shall not be exercised by the Builder/Promoter unless and until the Builder/Promoter shall have given to the Purchaser (15) fifteen days prior notice in writing of its intention to terminate this agreement and of the breach or breaches of terms and conditions in respect of which it is intended to terminate the agreement and default shall have been made by the Purchaser/s in remedying such breach or breaches within a period of 15 days after the giving of such notice: Provided further that upon termination of this agreement as aforesaid, the Builder/Promoter shall refund in 12 equal monthly instalments commencing from the 13th month of such termination to the Purchaser/s the amounts, which may till then have been paid by the Purchaser to the Builder/Promoter in respect of the Residential apartment after deducting therefrom towards Liquidated Damages ( and not as a penalty) 10% of the total price in respect of the Residential apartment payable hereunder. The Builder/Promoter shall not be liable to pay to the Purchaser any interest on the amount so refunded. ”

19. The opposite party has addressed letter dated 31.03.2011 subsequent to the notice dated 22.03.2010 whereunder complainant opted for cancellation of allotment and the opposite party through its letter expressed its readiness to refund the amount after deducting 10% of the value of the Flat, `37,81,147/-. The complainant refused to receive the amount and claimed for refund of the entire amount without assigning any reason. The opposite party has filed copy of cheque dated 31.08.2012.

20. In the agreement of sale it is mentioned that on cancellation of the allotment, the amount payable to the complainant does not carry any interest. Admittedly, the complainant paid the installments till May, 2009 and from the time till February, 2010 when the opposite party issued letter 10.02.2010 and thereafter on 07.04.2010, 07.09.2010, and 07.10.2010.Again from October,2010 till May,2011 and from the time till March, 2012 the opposite party had not taken steps either to remind the complainant of the installments due or cancel the allotment. The opposite party has not chosen to cancel the allotment till the complainant terminated it by issuing notice on 22.03.2012. The failure of the opposite party on the aspect constitutes deficiency in service on its part and it is liable to pay an amount of `50,000/- towards compensation to the complainant.

21. In the result, the complaint is allowed directing the opposite party to refund the amount of `37,81,147/- and pay a sum of `50,000/- towards compensation together with costs of `5,000/-. Time for compliance four weeks.