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Judgment
This first appeal has been filed under Section 19 of the Consumer Protection Act, 1986 against the impugned order dated 06.06.2014 passed in consumer complaint No. 24 of 2009 by Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Nagpur ( in short, ''the State Commission'') whereby the complaint was partly allowed.
The facts relevant for the disposal of the appeal are that the complainants, Mrs. Sanghmitra Naresh Lamsonge and Mr. Sachin Naresh Lamsonge had booked a flat bearing No. B /506 in Crown Type - II, housing Scheme to be developed by the OP for consideration of Rs.27,98,000/-. The complainants had paid 10% of the total cost towards booking of the said flat i.e. Rs.2,79,800/- on 10.4.2008. The opposite party informed the complainants that the financial institution will provide loan only if 15 % of the cost is deposited as margin money. Therefore, in order to avail the loan facility from the financial institution, the complainants paid 5% (Rs.1,39,896/-) more of the total cost. The complainants thus paid 15% i.e. Rs.4,19,700/- of the total cost of the consideration amount. On deposit of said amount, the opposite party executed agreement of sale with the complainants on 12.12.2008. The complainants also incurred further expense of Rs.84,660/- towards stamp duty, registration charges and incidental expenses. Consequently, the opposite party confirmed the registration of the booking for a unit in Sahara City Homes, Nagpur by letter dated 28.4.2008 and further informed the complainants that the balance amount towards the cost of the flat was to be paid in 38 monthly installments as per the payment schedule and in case of delay or default, additional interest of 1.5% shall be charged on the amount of default till the actual date of payment and in case of non-payment, after maximum of 3 reminders, to be given by the opposite party within forty five days, the booking shall stand automatically cancelled.
By letter dated 11.9.2008, the opposite party apprised the complainants that the financial institutions like Axis Bank Ltd., HDFC Ltd., IDBI Bank Ltd. and SBI have agreed to provide loan to the allottees of Sahara City Homes. In consequence thereof, the complainants by application dated 29.9.2008 applied for loan of Rs.22,35,000/- from SBI. The SBI sanctioned the loan in principle vide letter dated 28.4.2009. The complainants regularly visited the office of the opposite party and demanded necessary documents for procuring the loan but on 27.1.2009 when the complainants visited the office of OP, it was informed to him that their allotment was recommended for cancellation. Therefore, the complainants by letter dated 5.2.2009 requested the opposite party not to cancel the flat booking, since the sanction of loan was under process but, no heed was paid by the opposite party. Later on, the opposite party informed the complainants on 28.5.2009 about the cancellation of booking due to non-payment of dues within the stipulated period despite reminders dated 14.5.2009 and 26.5.2009.
Thereafter, vide letter dated 23.6.2009 the OP informed the complainants that the cancellation can be revived if the complainants desire to accept as per availability and on current prevailing prices.
Upon cancellation of the booking of the flat, the complainants sent a legal notice on 16.7.2009 calling upon the opposite parties to execute the sale deed in their favour after accepting the balance amount and on failure of which the opposite party to pay compensation of Rs. 5 lakh towards the loss incurred by the complainants. The opposite party did not take any cognizance, remained silent on the issue.
Therefore, alleging deficiency in service and unfair trade practice on the part of opposite parties, consumer complaint was filed by complainants before Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Nagpur (State Commission).
The State Commission after considering the pleadings and evidence adduced by the parties, partly allowed the complaint and directed the opposite parties to execute the sale deed in respect of the unit in question after accepting balance 85 % of the total cost of the unit as per agreement dated 12.12.2008 and the opposite parties were directed to hand over the vacant possession of the unit alongwith compensation of Rs.50,000/- towards physical and mental harassment and cost of Rs.10,000/- towards costs of proceedings.
Being aggrieved by the order dated 6.6.2014 passed by State Commission, the opposite parties filed the first appeal before this Commission.
We have heard the learned counsel for the parties and perused the relevant documents, including the agreement to sell entered between the parties. Learned counsel for the appellants submitted that the complainants had paid only Rs.4,19,700/- at the time of booking till 30.8.2008. Thereafter, they defaulted in making the payments. Three reminders were also sent to the complainants on 15.9.2008, 27.9.2008 and 16.10.2008. Thereafter, complainants approached the OPs and assured for timely payments in future. Counsel further submitted that as per clause 16 of the agreement, the registration charges were to be borne by the complainants; therefore, the complainants are not entitled to recover the said amount. The complainants have not made any payment after execution of the said agreement. Therefore, the OPs had left no option but to cancel the allotment of the complainants vide letter dated 24.4.2009 as per the terms of clause 17 of the agreement.
We have perused clause No. 17 of the agreement. It is reproduced as below:-
"(17) That the payment schedule is the essence of this agreement, failing which the allotment can be cancelled and the deposited amount in case of cancellation under the clause or otherwise shall be refunded as per the terms and conditions of the application form as well as the allotment letter/form."
It is pertinent to note that the OP has sent one letter dated 23.6.2009 to the complainants and demanded the money at the prevailing rate. The State Commission have given observations on the contents of the letter. It is reproduced as below:
"We also perused the contents of letter dated 23/6/2009 addressed to the complainant by the opposite party mentioning therein "due to defaults in payments, your unit has been cancelled. If you intend to revive your unit, the same may be revived (as per availability) on the current prevailing prices."
In our view, clause No. 17 itself was an arbitrary provision and not legally tenable. The OP has cancelled the unit with the intention to get enhanced price from the complainants. It was an admitted fact that the complainants'' loan was sanctioned by State Bank of India, which was also known to the OP. It is surprising to note that initially the OP wished to cancel the booking of the unit and thereafter, made an offer to revive the said booking at prevailing prices. It was obviously an unfair trade practice. In the present case, the complainants have already paid 15% of the total cost of the unit and the remaining 85% was to be paid as loan, which was sanctioned by the State Bank of India. In our view, the OP without any reason protracted the matter for six years since 2008. It itself was a deficiency in service.
On the basis of foregoing discussion, we do not find any fault with the well-reasoned order of the State Commission. There is no merit in the instant appeal, hence, dismissed. Parties to bear their own costs.