Tamil Nadu

North Chennai

120/2012

V.Rajeswari, - Complainant(s)

Versus

Alappar, Chairman, EMAAR Propertoes EMAAR MGF Land Ltd, - Opp.Party(s)

D.Kukar

16 Feb 2016

ORDER

 

 

                                                               Complaint presented on  :  23.04.2012

                                                                  Order pronounced on  :  16.02.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,         :      PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,            :     MEMBER II

 

TUESDAY  THE  16^th  DAY OF FEBRUARY 2016

 

C.C.NO.120/2012

 

 

V.Rajeswari,

W/O.M.Velappan,

No.C.14, Grahalakshmi Apartments,

640, T.H. Road, Chennai – 600 081.

                                                                                                 ..... Complainant

 

..Vs..

	1.ALAPPAR, Chairman, EMAAR Properties, EMAAR MGF Land Limited, E.C.House, No.28, Kasturba Gandhi Marg, New Delhi – 110 001.   Also at No.75, New Vaiyannathan St, Tondiarpet, Chennai – 600 081.   2.Shravan Gupta, Vice Chairman, EMAAR Properties, EMAAR MGF Land limited, E.C.House, No.28, Kasturba Gandhi Marg, New Delhi 110 001.     Also at No.75, New Vaiyannathan St, Tondiarpet, Chennai – 600 081.   3.Manager, EMAAR MGF Land Ltd., No.75, New Vaidyanathan St, Tondiarpet, Chennai – 600 081.
	...Opposite Parties

Date of complaint                                  17.05.2012

Counsel for Complainant                      :M/S. D.Kumar

Counsel for Opposite parties                   :K.Gowtham Kumar

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.SC., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant has booked a flat with the Opposite Parties in the Esplanade  project at Old No.7A New No.75, New Vaidyanathan Street, Tondiarpet, Chennai 81. The Complainant paid an advance amount of Rs.1,06,775/-, Rs.7,00,000/- and Rs.1,10,979/- through different cheque on various dates totaling to a sum of Rs.9,17,754/- in favour of Opposite Parties. Thereafter, the Complainant unable to mobilize the further amount for the purchase of the flat and hence she expressed her desire to cancel the booking and requested to refund the amount paid by her.  Even after several request made by the Complainant to refund the advance amount paid by him, the Opposite Parties did not come forward to refund the same. Hence the Complainant issued legal notice and however the Opposite Parties failed to reply to her notice. Even after that  the Complainant continuously requested the Opposite Parties to refund the amount of Rs.9,17,754/-, the Opposite Parties prepared a letter on 12.03.2012  and obtained her  signature by threatening the Complainant and refunded a sum of Rs.4,25,606/- instead of Rs.9,17,754/- and the Opposite Parties further said that the remaining amount of Rs.4,92,148/- forfeited by them.  The Complainant further states that the amount paid by the Complainant as a booking amount and therefore the forfeiture clause will not apply to this Complainant. Therefore the Opposite Parties committed Deficiency in Service by not refunding the entire booking amount and thereby caused mental agony to the Complainant and hence the Complainant filed this Complaint to refund the balance advance amount, compensation with costs.

2.WRITTEN VERSION OF THE 3^rd  OPPOSITE PARTY ADOPTED BY OPPOSITE PARTIES 1 & 2  IN BRIEF:

          The Opposite Parties submits that the Complaint is not maintainable in respect of alleged refund of the amounts paid by the Complainant. There is no cause of action arose for this Complaint as the Opposite Parties terminated the allotment and the Complainant received the amount as agreed by her. The dispute raised by the Complainant is purely civil in nature. The Complainant is guilty of  suppressio veri and suggestio falsi and has not put forth all the facts before this Hon’ble Forum. The Opposite Parties 1 & 2 have been unnecessarily made as parties in this Complaint and they have no connection with the grievances made by the Complainant. The Complainant had booked unit No.T10-A5-105 and paid advance amount on various dates. The allotment came to be cancelled only after a year and the Complainant did not show any assurance of making the payment. The other averments made in the Complaint are denied. There is no bonafide on the part of the Complainant, since none of the Opposite Parties have committed any deficiency. Hence the Opposite Parties prays to dismiss the Complaint.

3.POINTS FOR CONSIDERATION:

          1.Whether there is deficiency in service on the part of the opposite parties?

          2.Whether the complainant is entitled to any relief? If so to what relief?

4.POINT:1

           It is an admitted fact that the Complainant has booked a flat on the 1^st floor Unit No. T10-A5-105 with the Opposite Parties in the Esplanade  project at old No.7A New No.75, new vaidyanathan street, Tondiarpet, Chennai 81 and  the Complainant paid an advance amount of Rs.1,06,775/-, Rs.7,00,000/- and Rs.1,10,979/- through different cheque on various dates totaling to a sum of Rs.9,17,754/- in favour of Opposite Parties and thereafter, the Complainant unable to mobilize the further amount for the purchase of the flat and hence she expressed her desire to cancel the booking and requested to refund the amount paid by her.

          5. It is not in dispute that the Complainant paid a sum of Rs.9,17,754/- towards advance amount for the purchase of a flat from the Opposite Parties and subsequently the Complainant unable to mobilize the fund she wanted refund of the amount paid by her and the Opposite Parties after obtaining Ex.A7 letter from the Complainant they have refunded a sum of Rs. 4,25,606/- and retaining the remaining amount of Rs.4,92,148/- with them.

          6. The Complainant would contend that the Opposite Parties obtained her signature in Ex.A7 letter dated 12.03.2012  by coercion, fraud and undue influence and therefore such a letter has to be rejected in view of the judgment of the National Commission rendered in II (2015) CPJ 473 (NC) (SANJAY KUMAR SHARMA VS. PARSVNATH DEVELOPERS LTD.) and hence the Complainant is entitled for further refund of amount of Rs.4,92,148/- retained by the Opposite Parties.

7. The Opposite Parties would contend that the Complainant submitted  Ex.B1 application for booking the flat and  the  said application contains terms and conditions  and  as per the condition No.7 the Opposite Parties  entitled to forfeit  10% of the sale price and in view of such condition the Opposite Parties deducted the 10% of the amount of the sale price and refunded the balance amount of Rs.4,25,606/- to the Complainant and the Complainant after receiving said amount executed the letter dated 12.03.2012 without any protest and further in the said letter undertook that she will not initiate any legal proceedings and she has also issued a separate receipt for receiving the amount without any protest and therefore the allegation that the letter dated 12.03.2012 was obtained from the Complainant under coercion, fraud and undue influence is not sustainable and therefore the judgment of the National Commission referred by the Complainant is not applicable to the facts of the case in hand and the Complaint is liable to be dismissed.

8. It is relevant to extract the condition no.7 in  terms and condition of   Ex.B1 as follows:

7.The developer  upon conclusive allotment favouring the Applicant shall  within seven (?) working days provide the Allotment standard templates of ‘Agreement to self Undivided share in land’ ‘construction Agreement’ and ‘sale Deed for undivided share in the land’ along with a detailed sale price payment schedule. The allot tee(s) within thirty (30) days from the date of issue of the standard templates execute the agreement to sell undivided share in land and comply with the payment schedule mentioned therein. Failure to do so shall result in automatic cancellation of the allotment along with forfeiture of Ten (10%) percent of the sale price an account of damages for loss of business opportunity and administrative expenses.

As per the above condition the Opposite Parties are entitled to forfeit 10 % of the sale price of the flat. The Complainant admits her signature in Ex.A7 letter dated 12.03.2012 she also issued receipt for having received a sum of Rs.4,25,606/- towards full and final settlement  of her claim with Opposite Parties. While signing in the receipt for receiving amount as well as the letter dated 12.03.2012 she has not made any protest for receiving the amount of Rs.4,25,606/-. If the Complainant was forced to sign in the above said letter and receipt she could have made her protest by preferring a Complaint to the Police or issued a letter or legal notice to the Opposite Parties that her signature was obtained by coercion, fraud and undue influence. No such evidence is available to accept that the Complainant signature was obtained by coercion, fraud and undue influence and hence the judgment of the National Commission referred by the Complainant reported in II (2015) CPJ 473 (NC) is not applicable to the facts of the case in hand and further in view of the same it is held that the Complainant willingly signed in the letter dated 12.03.2012 and issued the receipt for receipt of Rs.4,25,606/-.

          9. The Complainant referred another judgment of the State Consumer Disputes Redressal Commission, Chennai rendered in FA No. 22/2011 dated 24.01.2012. The facts in the State Commission Judgment that there is no forfeiture clause in respect of booking fee and therefore the Commission confirmed the award passed by the district Forum with some modification. Whereas in the case in hand there is a forfeiture clause above referred is available in Ex.B1 terms and conditions and in view of the same the Opposite Parties forfeited 10% of the sale price from the booking amount is in accordance with terms and conditions and therefore by forfeiting a sum of Rs.4, 92,148/-  by the Opposite Parties  and retained with them is sustainable and further the Complainant is not entitled for the forfeited amount. In view above discussion the Opposite Parties 1 to 3 have not committed any Deficiency in Service.

          In the result the Complaint is dismissed. No costs.  

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 16^th day of February 2016.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated  19.01.2008	Cheque No.086525 for Rs.7,00,000/- drawn on Alahabad bank issued by the Complainant in favour of the Opposite Partie’s  Ltd.,
Ex,A2 dated  06.02.2008	Cheque No.086529 for Rs.1,10,979/- drawn Alahabad bank by the Complainant in favour of the Opposite Partie’s limited
Ex.A3 dated  07.06.2010	Legal notice issued by the Complainant’s counsel to the Opposite Parties .
Ex.A4 dated 12.06.2010	Acknowledgement card by the Opposite Parties to the Complainant’s counsel
Ex.A5 dated  22.09.2010	Requisition Letter sent by the Complainant to the 1st Opposite Party
Ex.A6 dated  22.09.2010	Requision Letter sent by the Complainant to the 2nd Opposite Party
Ex.A7 dated  12.03.2012	Self – made letter of Opposite Parties

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES:

Ex,B1 dated 25.11.2007	Application form submitted by the Complainant
Ex.B2 dated 23.01.2008	Letter from Opposite Party to Complainant
Ex.B3 dated   NIL	Reminder letter issued by the Opposite Parties
Ex.B4 dated 15.04.2010	Letter from Opposite Party to Complainant
Ex.B5 dated 26.04.2010	Letter from Opposite Party to Complainant

 

 

MEMBER – II                                                               PRESIDENT