Tamil Nadu

South Chennai

CC/131/2012

Sri P.Devendran - Complainant(s)

Versus

Alliance Project - Opp.Party(s)

R.Munuswamy

07 Sep 2017

ORDER

                                                                        Date of Filing :   12.06.2012

                                                                        Date of Order :   07.09.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

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

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO.131/2012

MONDAY THIS  7^TH   DAY OF SEPTEMBER 2017

 

1.Sri P. Devandran,

S/o. P.Desappan.

 

2. Mrs. D.Sudha,

W/o. D.Devendran,

Both are residing at

No.2/95, 2^nd Block,

Mugappair East,

Chennai 600 037.                                        .. Complainant

                                        ..Vs..

 

M/s. Alliance Projects,

Rep. by its P.O.A Mr.Suresh Boomi Reddy,

Jeevan Anand Building,

2^nd Floor, No.556, Anna Salai,

Teynampet,

Chennai 600 018.                                       .. Opposite party.

 

 

Counsel for Complainant         :    M/s. R.Munuswamy & others.  

Counsel for opposite party       :    M/s. A.Joseph Dorairaj  

ORDER

THIRU. M. MONY, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.4,00,000/- with interest at the rate of 24% p.a. and also to pay a sum of Rs.4,00,000/- as compensation for mental agony and also to pay cost of the complaint.

 1. The averment of the complaint in brief are as follows:

         The complainants submit that  the total cost of the undivided share and the construction is Rs.31,240,50/-.   The complainants stated that after seeing advertisement the complainants were highly impressed and booked an apartment in the opposite party’s project known as “Orchid Springs”  measuring 950 sq. ft. plinth area and 237.5 sq. ft. undivided share.   The complainant further state that on 21.12.2008 at the time of execution of the agreement, the complainant paid a sum of Rs.4,00,000/- as advance.   At the time of entering into the agreement the opposite party informed the complainant that they have applied for the approval and it will be granted within the short period and the construction will be started before 30.6.2009.   Further the complainant state that since there is no progress in the construction and there was inordinate delay in starting the work it will be clear that the opposite party  will never hand over the possession of the apartment within the stipulated time.  Despite of several demands and requests made by the complainants the opposite party did not respond anything about the same to the complainants.  The complainants further state that having promised and assured to commence the project in July 2009 the opposite party has failed to commence work.  

2.     Further the complainants state that the opposite party has issued notice dated 21.7.2011 to the complainants in and by which it said to have cancelled the said agreement of sale as well as agreement of construction and along with the letter it enclosed a cheque of Rs.2,99,724/- in favour of the complainants.  It was stated by the opposite party in the letter that it had deducted a sum of Rs.1,00,000/- as alleged cancellation charges.   Accordingly the complainants sent a notice to the opposite party on 21.8.2011 calling upon him to refund the balance of advance amount of Rs.1,00,000/-  with interest.   The opposite party sent reply dated 20.10.2011 and expressed their willingness to refund the balance amount of Rs.1,00,000/- but they have not paid the amount till date.   As such the act of the opposite party clearly amounts to gross deficiency in service and thereby caused harassment, mental agony  and hardship to the complainant.  Hence the complaint is filed.

3. The brief averments in Written Version of  the opposite party    are as follows:

        The opposite party state that the opposite party denies each and every allegation except those that are specifically admitted herein.  At the outset, the complainant has made the opposite party wrongly.   The opposite party submit that the opposite party have not given any promise or assurance to the complainants that he would commence and complete the construction of apartments within 30 months from the date of agreement and the same is denied.   It is very clear in the construction agreement dated 21.12.2008 at page 5 under the clause Completion and delivery of possession of the schedule “c” property will be delivered by the developer to the complainant on or before 24 months from the date of obtaining building sanction approvals and all other necessary approval with grace period of 6 months provided the complainants comply with the payment schedule and it is not within 30 months from the date of agreement as stated in the complaint.   

4.     Further the opposite party state that the opposite party have sent a letter dated 25.5.2010 to the complainants calling upon the complainant to pay the amount as per the agreement and schedule of payment, but there was no response from the complainants.  The opposite party also state that the opposite party obtained the approval from CMDA in the month of August 2010 and the opposite party have started the work immediately and the construction process is going on.   When there is a clear clause of Completion of Delivery of Possession in the agreement, the assurance of commencing the project by July 2009 would not arise at all.    The opposite party also state that at the time of payment of advance amount the complainants have to pay a sum of Rs.8,00,000/- towards initial payment.   But the complainants paid only a sum of Rs.4,00,000/-.   Even that too after so much of default in payments.   The various cheques issued by the complainants were dishonourned resulting cheque bounce and charges were debited to the complainant’s account.     Hence there is no deficiency in service on the part of the opposite party and therefore this complaint is liable to be dismissed.

5.      In order to prove the averments of the complaint, the complainants have filed proof affidavit as their evidence and documents Ex.A1 to Ex.A5 marked.  Proof affidavit of opposite party  filed and no document marked on the side of the opposite party.  

6.   The points for the consideration is:  

1. Whether  the complainant is entitled to a sum of Rs.4,00,000/- with interest at the rate of 24% p.a. as prayed for ?
2. Whether the complainant is entitled to a sum of Rs.4,00,000/- towards compensation for deficiency of service of the opposite party with cost  as prayed for ?

 

7. POINTS 1 & 2 : -

        Both parties filed their respective proof affidavit, written arguments etc. The counsel for the complainant advanced oral arguments also.  The opposite party has not advanced any oral arguments for long time.   Both parties admitted Ex.A1 Sale agreement and Ex.A2 construction agreement.   The total cost of the undivided share and the construction of building is Rs.31,240,50/-.   The learned counsel for the complainants contended that after seeing advertisement the complainants were highly impressed and booked an apartments in the opposite party’s project known as “Orchid Springs”  measuring 950 sq. ft. plinth area and 237.5 sq. ft. undivided share.   The complainant further contended that on 21.12.2008 at the time of execution of the agreement Ex.A1 & Ex.A2 the complainant paid a sum of Rs.4,00,000/- as advance.  At the time of entering into the agreement the opposite party informed the complainant that they have applied for the approval and it will be granted within a short period and the construction will be started before 30.6.2009.   But on a careful perusal of the agreement Ex.A1 it is seen that there is no specific date mentioned for commencing the construction, it is seen that 50% of the total cost shall be paid before the construction of foundation.  But it is very clear that the complainant paid only a sum of Rs.4,00,000/- before starting the construction work.   Further the learned counsel for the complainant contended that since there is no progress in the construction and there was inordinate delay in starting the work it will be clear that the opposite party will never hand over the possession of the apartment within the time stipulated.  On the other hand the opposite party was demanding the amount more and more repeatedly though the construction work has not been started by the opposite party hence the complainant has not paid any further amount.  So the opposite party without any notice foreclosed, the agreement and refunded a sum of Rs.3,00,000/- deducing a sum of Rs.1,00,000/- towards cancellation charges as per Ex.A3. Since the opposite party withheld a sum of Rs.1,00,000/- towards the cancellation charges and refused to pay the amount, the complainant was constrained to file this case after issuing legal notice Ex.A4.  The learned counsel for the complainant further contended that the opposite party is liable to pay a sum of  Rs.1,00,000/-  withheld  towards cancellation  charges   and   interest  for  Rs.4,00,000/-  for mental

agony caused due to deficiency of service.  But the complainant has not pleaded and proved such baseless  and commercial rate of interest and exorbitant amount compensation. 

8.     The opposite party pleaded and contended in the written arguments that at no point of time the opposite party assured the date of construction and handing over the possession of the apartment.  At the time of payment of advance amount the complainant has to pay a sum of Rs.8,00,000/- towards initial payment.   But the complainant paid only a sum of Rs.4,00,000/-.   The various cheques issued by the complainants were dishonourned resulting in cheque bounce payment.  The said charges was not paid by the complainant.   On August 2010 the opposite party obtained due approval from the authorities for construction and the work is in progress.  But the opposite party failed and neglected to produce any document to prove such approval and the progress of the work.   Further the opposite party contended that the complainant is a chronic defaulter in payment of amount towards construction and cost of undivided share therefore the opposite party cancelled the agreement and refunded a sum of Rs.3,00,000/- as per Ex.A3.   But as per Ex.A1 & Ex.A2 the opposite party issued due notice for such cancellation.   Equally the opposite party deducting a sum of Rs.1,00,000/- towards cancellation charges without  showing any progress in construction amounts to deficiency of service.  Further the contention of the opposite party is that the claim of exorbitant interest and compensation is unsustainable.   Considering the facts and circumstances of the case, this forum is of the considered view that the opposite party shall pay a sum of Rs.1,00,000/- with interest at the rate of 9% p.a. from the date of this complaint i.e. 12.6.2012 to till the date of this order i.e. 7.9.2017 with compensation of Rs.20,000/- towards mental agony with cost of  Rs.5,000/- and the points is answered accordingly.  

        In the result the complaint is allowed in part.  The opposite party shall pay a sum of Rs.1,00,000/-  (Rupees one lakh only) with interest at the rate of 9% p.a. from the date of this complaint i.e. 12.6.2012 to till the date of this order i.e. 7.9.2017 and also to pay compensation of Rs.20,000/- (Rupees twenty thousand only) towards mental agony with cost of  Rs.5,000/- (Rupees five thousand only) to the complainants.

The above  amount shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.       

  Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  7^th  day  of  September 2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants” side documents:

Ex.A1- 21.12.2008         - Copy of Agreement of sale.

Ex.A2- 21.12.2008         - Copy of construction agreement.

Ex.A3- 21.7.2011  - Copy of Notice of the opposite party.

Ex.A4- 21.8.2011  - Copy of notice issued by the complainants with A.D. card

Ex.A5- 20.10.2011         - Copy of reply notice by the opposite party.

 

 

Opposite parties’ side document: -   .. Nil..

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.