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2008(2) CPR 206
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH
K.C. Gupta,(Retd.) President; Major General S.P. Kapoor(Retd.) and Devinderjit Dhatt, Members
M/s Indswift Infrastructure and Development Ltd. —Appellant
versus
Ranjit Singh and Anr. —Respondents
Appeal No. 779 of 2007
Decided on 25.4.2008
Counsel for the Parties:
For the Appellant:Sh. Pankaj Chandgothia, Advocate.
For the Respondents:Sh. Gautam Diwan, Advocate.
IMPORTANT POINT
Non-refund of booking amount of flat when buyer withdrew the scheme without any fault on part of builder and booking terms stipulated amount to be non-refundable would not constitute deficiency in service.
Headnote:Consumer Protection Act, 1986—Sections 12 and 17—Housing —Deficiency in service—Complainant booked a flat under a project of appellant-Opp. Party and paid initial deposit of Rs. 50,000/- —Within a week complainant asked for refund of money after cancelling the booking of flat and opposite party refused to refund the amount on plea that it was non-refundable—District Forum allowed complaint and directed refund of amount with interest—Appeal—No merit in complainants’ contention that they were misled regarding location of site—In case buyer arbitrarily without any fault of seller withdrew from project, builder’s financial planning will get upset—Complainant could not be said to have proved any deficiency in service when the terms and conditions recorded in payment receipt stipulated the amount non-refundable —Impugned order was liable to be set aside.
Held: In this case, the complainants, of their free will, agreed to the conditions at Annexure C11 and also agreed that if subsequent payments were not made, the OP could resume the flat without notice and the deposited amount will stand forfeited. It is an admitted fact that the complainants had only paid a sum of Rs. 50,000 as the booking amount. It is also common knowledge that the builders take up construction projects with funds promised to be paid by the buyers and add on some funds/land site etc. of their own as well. For a project to be on time, it is important that the assured intake of funds from the buyers continues so that the construction work progresses smoothly and the genuine buyer does not suffer. In case, the buyer arbitrarily without any fault of the seller withdraws from the project, obviously, the builder’s financial planning will get upset and he will also be put to great financial hardship. Even though the Consumer Protection Act, 1986 is primarily for better projection of the interest of the consumers, yet it also operates on the principle of equity whereby it is assured that none of the parties is put at a disadvantageous position. In the present case, the complainants have failed to prove any deficiency in service on the part of the OP. They had voluntarily paid the booking amount to the OP and had agreed to conditions mentioned in Annexure C11. They, therefore, now cannot cause the OP financial harm by seeking refund of the booking amount, even though, the decision to back out of the project was purely that of the complainants without any fault of the OP and when the flats are almost nearing completion and the OP is ready to offer the same to the complainants at the advertised price. In this view of the matter, we are of the considered view that the impugned order does not stand legal scrutiny. It is clearly established from Annexure C2 that Unit No.1 on 3rd Floor of Type III Bed Room Flat having super area of 1483.635 Sq. feet and parking space worth Rs.1,00,000 stood allotted to the complainant for a total cost of Rs. 28,85,000 plus Rs.1,00,000. It is also clear from Annexure C10 that these flats were still to be constructed and the complainant had agreed to Construction of Linked Payment Plan and further, they had agreed to the terms and conditions listed at Annexure C11, which in the context of the booking amount cannot termed to be oppressive. In view of the above, volunteer surrender of flat after the booking by the complainants does not entitle them to refund of the booking amount. (Para 11)
Result: Appeal allowed.
Maj. Gen S. P. Kapoor, Member— This is an appeal against the order of District Consumer Disputes Redressal Forum-I, U.T., Chandigarh(for short hereinafter to be referred as District Forum) dated 5.10.2007 passed in complaint case No. 277 of 2006, Shri Ranjit Singh and another v. M/s Indswift Infrastructure and Developers Limited.
2. Briefly stated the averments made in the complaint are that the complainants pursuant to an advertisement(Annexure P1), applied for booking of a residential Unit No.1, Floor 3rd Type Super 3 Bedroom measuring Super Area 1483.365 Sq. ft. under the Project Regalia Towers, Zirakpur, Punjab of the OP and duly filled the application form(Annexure C2). The Complainants, it is averred, paid a sum of Rs. 50,000 in cash being the booking amount against Receipt No.159 dated 13.2.2006(Annexure C3). As per the complainants, on 18.2.2006, they visited the location of the OP and found it to be in a most aloof area and at a distance of about 2-3 Kms. away from Zirakpur Shimla Highway, which was approachable through a very narrow road. The complainants next averred that they, thereafter, immediately submitted an application for cancellation of booking of the residential unit vide letter Annexure C5 and requested the OP to refund the booking amount of Rs. 50,000, however, the OP vide its letter dated 24.2.2006(Annexure C6) flatly refused to refund the booking amount and stated the same to be not refundable. The complainants served a legal notice dated 13.3.2006 upon the OP, which was duly replied by the OP vide its letter dated 20.3.2006 calling the complainants to make the balance payment of the apartment allotted to them along with simple interest @18% per annum. The complainants have alleged the act of retaining their booking amount by the OP is a clear cut case of unfair trade practice on its part. As per the complainants, they have duly signed the alleged terms and conditions mentioned in the ‘Note’ [Annexure C11] attached with the payment plan in the capacity of intended allottee. It has been averred by the complainant that no agreement of sale was ever executed between him and the OP and the advertisement published in the newspaper ‘The Tribune’ dated 4.2.2006 was mere an invitation to offer. He next averred that the prescribed application form submitted along with booking amount was also mere an offer, which was later on withdrawn without any delay before its acceptance. Averring that as the offer of the complainants had never been accepted, therefore, there was no binding agreement between the complainants and OP. Alleging the act of retaining his booking amount to be against the provisions of law, the complainants have filed complaint seeking directions to the OP to refund the booking amount of Rs. 50,000 along with interest @ 18% per annum from the date of booking till the date of realization. The complainants have further sought direction to the OP to pay a sum of Rs.10,000 towards physical and mental harassment besides a sum of Rs. 11,000 as costs of litigation.
3. The version of the OP is that the complainants were not consumers under the definition of ‘consumer’ as contained in the Consumer Protection Act, 1986 as they had booked the property for speculation/profiteering purpose. The OP further pleaded that as on date, the booking/allotment stood cancelled and the amount of booking has been forfeited as the complainant failed to deposit the due installments. It is next pleaded that the advertisements and brochures published by the OP were very clear and unambiguous and the complainants booked the apartment after fully understanding the terms and conditions applicable and also after seeing the site. The OP asserted that the booking form itself contained all the details regarding booking, parking(covered) and the basic price of Rs. 28,85,000 along with payment plan B. As per the OP, the complainant have no concern with the office column of the booking form since these were meant for internal proce
