MSK Jaiswal President
This is an appeal filed by the Complainant feeling aggrieved by the orders dated 19.06.2015 of District Consumer Forum, Ranga Reddy made in CC No.48/2014 dismissing the complaint of the Complainant.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the Complainant, in brief, is that induced by the publicity made by the Opposite party which is a Government undertaking, engaged in construction of houses for middle and lower middle income groups about such residential flats and intended to buy one such flat in "Sahabhavane Township in Bandlaguda village. After being allotted a flat by conducting lottery by the Opposite party, Complainant paid Rs. 5,000/- towards processing fee besides application amount of Rs. 250/- as against the total cost of flat at Rs. 15,00,000/-. On 27.06.2008, he paid Rs. 2,00,000/- and another sum of Rs. 1,75,000/- on the same day. As the banks refused to sanction housing loan to retired persons, the Complainant could not pay the balance consideration and hence requested for refund of Rs. 3,75,000/- paid by him by way of written representation on 31.05.2013.
4. As against the same, on 07.11.2013, the Opposite party paid an amount of Rs. 2,25,000/- denying the balance amount without any reason. Therefore, he made representations on 11.12.2013 seeking refund of balance amount of Rs. 1,50,000/-. Since there was no response, he filed the present complaint seeking to direct the Opposite party to refund the amount of Rs. 1,55,000/ - along with interest @ 15% per annum; to pay interest @ 15% p.a. on Rs. 3,80,000/- from 27.06.2008 to 07.11.2013; to pay compensation of Rs. 50,000/- and costs of the complaint at Rs. 25,000/-.
5. Opposite party resisted the claim contending that as per allotment terms, the Complainant was required to pay the total amount. In spite of several notices and reminders, the Complainant failed to turn-up resulting in cancellation of allotment on 10.11.2010 construing that he has no interest in the flat, by forfeiting the amount deposited. The construction was being done on 'no profit no loss' and the costs are only tentative subject to further revision. Opposite party incurred heavy expenditure for notification, notices, publications and Complainant cannot apply or withdraw whenever he wishes and cannot demand refund of amount as per the terms provided thereof.
6. The complaint is time barred as the allotment was cancelled on 10.11.2010. By not paying the amount, the Complainant caused loss to them as the flat could not be sold to third party. Hence, there is no deficiency of service on their part and accordingly prayed to dismiss the complaint with costs.
7. During the course of enquiry, in order to prove his case, the Complainant filed his affidavit evidence as PW1 and the documents Ex.A1 to A8 and on behalf of the Opposite party, one M.Prabhakara Chary, its General Manager filed his affidavit evidence and the documents Ex.B1 to B6.
8. The District Forum after considering the material available on record, dismissed the complaint bearing CC No.48 of 2014 by orders dated 19.06.2015, as stated supra, at paragraph No. 1.
9. Aggrieved by the above orders, the Appellant/Complainant preferred this appeal contending that the forum below failed to consider the fact having refunded Rs. 2,25,000/-, the Respondent could not have retained the balance amount without any valid and cogent reason. It failed to consider the decision rendered by Hon'ble Supreme Court reported in AIR 1999 (6) SC 3027, AIR 1986 SC 1571 and 1986 (3) SC 165 and thereby erred in coming to a conclusion that the Appellant has not come to Court with clean hands. Hence, prayed to allow the appeal by setting aside the orders impugned and consequently allow the complaint as prayed for.
10. The point that arises for consideration is whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner? To what relief ?
11. The admitted facts are that the Appellant/Complainant was allotted the flat by the Opposite party in a lottery for a total consideration of Rs. 15,00,000/-. As per the terms and conditions, th thereof i.e., Rs. 3,75,000/- was deposited by the Appellant/Complainant with the Respondent/Opposite party. The balance amount was to be deposited within the stipulated time. The Appellant made efforts to secure the loan from the bank but since he could not do so, he has not made the payment of the balance amount as stipulated. The Respondent/Opposite party issued notices to the Appellant/Complainant calling upon him to make the payment, failing which, the allotment would be cancelled. Since the appellant admittedly has not paid the next instalment as required within time, the Respondent/Opposite party vide proceedings in Ex.A9 have cancelled the allotment in favour of the Appellant/Complainant and forfeited the entire amount of Rs. 3,75,000/- paid by the Appellant/Complainant. Subsequently, however, it appears that the Appellant/Complainant made representation to the authorities and considering the same, the Respondent/Opposite party authorities have forfeited a sum of Rs. 1,50,000/- and returned the sum of Rs. 2,25,000/- to the Appellant towards the costs paid by him.
12. Therefore, the question that arise for consideration is whether the Respondent/Opposite party is entitled to forfeit a sum of Rs. 1,50,000/- from out of the sale amount deposited by the Appellant/Complainant at the time when the flat was allotted to him.
13. From Ex.A6, there is no dispute about the fact that the allotment made to the Appellant/ Complainant was cancelled vide letter dated 10.11.2010 which was done due to non-fulfilling the conditions of the allotment made by the Respondent/Opposite party to the Appellant/ Complainant. The reasons for non-fulfilling the obligations are that the loan was not sanctioned to them.
14. The Appellant/Complainant started correspondence with the Respondent/Opposite party for refunding the amount expressing inability to secure the loan as is evident from Ex.A7. Subsequently, it appears, that the Respondent/Opposite party has called the Appellant/complainant to its office and paid only 60% of the amount and obtained Ex.B6 on a bond paper by and under which the Appellant/Complainant has agreed to forego the balance amount. Immediately, within 5 days thereafter, i.e., on 17.12.2013, the Appellant/Complainant has made a representation to the Respondent Corporation saying as to the circumstances in which he accepted the cheque and sought for payment of the balance amount.
15. Spontaneity with which such a request is made to the Respondent/Opposite party after having executed Ex.B7 in unambiguous terms that he received the entire amount in full satisfaction, smacks of certain amount of compelling circumstances prevailing on the mind of the Complainant to accept 60% only and expressing full satisfaction and since the Appellant/Complainant had no opportunity to ponder over the issue as to whether to accept the money or not ostensibly he accepted the money having no option except to accept the same. Lest, he apprehended that he may have to forfeit the entire amount.
16. The Opposite Party has forfeited 40% of the amount, this they can do provided provisions or authority for doing this, is properly documented. Even though we have carefully perused the entire material, nowhere could we find the statutory provision which enables the Opposite Party to deduct any amount. More particularly in a case of this nature, where transactions could not be fructified for inability of the Complainant in securing the loan. As per the Respondent/Opposite Party's terms and conditions, every other aspect is discussed for e.g: the said flats are not transferable for a period of five years from the date of allotment and multiple applications are not advisable. However, with regard to forfeiture, there is a complete absence.
17. Although the Respondent/Opposite Party have in their Ex.B1 clearly stated that terms and conditions are appended to this letter as annexure-II, they do not provide any clarification regarding forfeiture for failure to avail the loan facility. Having carefully scrutinized, the said waiver of their entitlement to claim the full refund was not without any reservations. The very fact that, in less than five days, the Appellant/Complainant raised the demand for the refund of the balance amount, goes to show that expectations were legitimate and that they can get the refund of the entire amount on proper reappreciation of the material. Had the acceptance of the partial amount under Ex.B6 been voluntary and out of free volition, the Appellant/Complainant would not have entered into correspondence with the Respondent/Opposite Party within five days thereafter.
18. The learned District Forum has failed to observe this aspect and relying upon Ex.B7, held that the Appellant/Complainant is not entitled to claim further amount.
19. Upon re-appraisal of the entire material on record, we do not find ourselves to be in agreement with the findings of the District Forum and the impugned order, therefore, cannot be sustained.
20. The learned counsel appearing for the Appellant/Complainant relied upon a decision of Hon'ble Supreme Court of India reported in United India Insurance v. Ajmer Singh Cotton and General Mills and Ors. Reference is made to para-6, wherein it was observed that "despite execution of the discharge voucher, the Consumer may be in position to satisfy the tribunal or the Commission under the Act that such a discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulently or exercise of undue influence or by mis-representation or the like". This equation is applicable to the present complaint.
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/>21. Admittedly, the amount is paid in respect of an immovable property viz., a flat, which still stands in the name of the Respondent/Opposite party. It is not as though that the Respondent/Opposite party is put to any loss if they return the entire amount to the Appellant/Complainant who is a retired person having invested the money with a fond hope of possessing the property but their dreams were shattered by the bank which refused to sanction the loan for which the Respondent/Opposite Party was a facilitator. 22. In the present case, the Appellant/Complainant made a representation to the authorities and they only returned a sum of Rs. 2,25,000/- and forfeited the balance amount of Rs. 1,50,000/-. In view of our observations and discussions it is only reasonable that the balance sum needs to be refunded to the Appellant/Complainant. 23. In the result, the appeal is allowed and the Respondent/Opposite Party is directed to refund the amount of Rs. 1,50,000/- within a period of four weeks from today, failing which the said amount shall carry interest 7% p.a. thereafter, till realization.