Tamil Nadu

South Chennai

19/2012

C.S.Sivanandan - Complainant(s)

Versus

Arihant Foundations and housing ltd - Opp.Party(s)

Party in person

03 May 2016

ORDER

                                                                        Date of Filing :   23.01.2012

                                                                        Date of Order :   03.05.2016.

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

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

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

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

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

 

C.C.NO.19/2012

TUESDAY THIS  3^RD  DAY OF MAY 2016

 

C.S.Sivanandan,

S/o. Late C.S.Pillai,

Palm Terrace,

No.11, South Mada Street,

Srinagar Colony,

Saidapet,

Chennai 600 015.                                                 ..Complainant

 

                                         ..Vs..

 

1.  Arihand Foundations and Housing Ltd.,

Rep. by its Director Mr.Bharat Shah,

No.3, Old No.25, Ganapathi Colony,

III Street, Off. Cenotaph Road,

Teynampet,

Chennai 600 018.

 

2. Escapade Real Estate Pvt. Ltd.,

Rep. by its Executive Director

Mr.A.Jayabhanu,

No.3, Old No.25, Ganapathi Colony,

III Street, Off : Cenotaph Road,

Teynampet, Chennai 600 018.                             ..Opposite parties   

 

 

For the Complainant                    :   Party in person.     

For the opposite parties               :   M/s. T.V.Sekar & another  

 

Complaint under section 12 of the Consumer Protection Act 1986.  The  complaint is filed seeking direction against the opposite parties to pay a sum of Rs.10,74,749/- being the extra amount and also to pay a sum of Rs.3,79,350/- towards interest and Rs.5,00,000/- as compensation to the complainant.  

ORDER

 

THIRU. B. RAMALINGAM PRESIDENT

1.The case of the complainant is briefly as follows:-  

 

        The complainant submit that the complainant has approached the opposite parties the building promoters for purchase of complaint mentioned Villa with other infrastructures for the cost of Rs.79,51,051/- (inclusive of registration charges) in the name of his son-in-law namely Sathish kumar and has paid Rs.7,00,000/- towards booking charges on 21.10.2009 to the opposite parties.   The complainant further submit that   the opposite parties have also agreed for the same and said to have promised to handover the possession of the Villa in the month June 2011 and both the parties have agreed that the balance amount has to be paid at the time of handing over possession.   On 13.01.2010 the complainant has paid a sum of Rs.8,40,000/- towards the said booking amount to the opposite parties.  However on the regular visit of the site by the complainant, found that the progress of the work was very slow, and he came to know that the Villa with the infrastructures will not be ready by June 2011 for delivery as such the complainant has cancelled the booking of the said Villa by sending e.mail dated 31.10.2010 and demanded refund of the above said amount paid by the complainant’s son-in-law from the opposite parties, in order to purchase flat in some other place for his son-in-law.    The opposite parties have also refunded an advance amount   a sum of Rs.7.5 lakhs on 01.04.2011 and another amount of Rs.7.9 lakhs on 09.05.2011 to the complainant. The cancellation of booking of flat was due to delay in progressing in construction of the Villa and the infrastructures thereon on the part of the opposite parties and the refund of the said amount was made to the complainant belatedly that too without interest and which caused the complainant and his son-in-law proposed purchaser to find out another flat to purchase on the higher cost and by the cancellation of the complaint mentioned flat the opposite parties have also benefited by selling the same for the enhanced cost as such the complainant and his son-in-law were caused suffering and hardship and mental agony.  As such the complainant has sought for claiming to pay a sum of Rs.10,74,749/- being the  extra amount  to be incurred by the complainant to purchase another flat as alternative and also claim a sum of Rs.3,50,000/- towards interest and also compensation of Rs.5,00,000/- against the opposite parties in the complaint.

Written Version of opposite parties are  in briefly as follows:

2.     The opposite parties denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.    The opposite parties submit that the complaint filed by the complainant without any power of attorney or authorization from the actual proposed purchaser namely Sathish Kumar is not maintainable.  The opposite parties also submit that  the construction work was under progress  and denied the allegations made by the complainant that the constructions work  would not be completed and delivery of the Villa will not be made as promised by the opposite parties in June 2011.  However complainant at his free will came for cancellation  of the booking of the said Villa on for their personal reason with good gesture and  have returned the  booking amount paid by the complainant.  As  such there is no deficiency of service on the part of the opposite parties.  The claim made by the complainant in complaint are all baseless and the complaint is liable to be dismissed.     

3.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A18 were marked on the side of the complainant.   Proof affidavit of  Opposite parties filed and no document was marked on the side of the  opposite parties.   

4.      The points that arise for consideration are as follows:-

1.   Whether the opposite parties has committed  deficiency of

 service  as alleged in the complaint?

 

2.   Whether the complainant is entitled for the relief sought for in

the complaint? If so to what extent ?

 

5.  POINTS  1 and 2 :

            Perused the complaint filed by the complainant, the written version filed by the opposite parties, proof affidavits filed by both the parties  and the documents Ex.A1 to A18 filed on the side of complainant    and considered the arguments of the both sides.

6.     There is no dispute in the case of both the parties that the complainant has approached the opposite parties the building promoters for purchase of complaint mentioned Villa with other infrastructures for the cost of Rs.79,51,051/- (inclusive of registration charges) in the name of his son-in-law namely Sathish kumar and has paid Rs.7,00,000/- towards booking charges on 21.10.2009 to the opposite parties.   The opposite parties have also agreed for the same and said to have promised to handover the possession of the Villa in the month June 2011 and both the parties have agreed that the balance amount has to be paid at the time of handing over possession.  Further on 13.01.2010 the complainant has paid a sum of Rs.8,40,000/- towards the said booking amount to the opposite parties, the receipts has been filed as Ex.A1 and Ex.A2.  However on the regular visit of the site by the complainant, found that the progress of the work was very slow, and he came to know that the Villa with the infrastructures will not be ready by June 2011 for delivery as such the complainant has cancelled the booking of the said Villa by sending e.mail dated 31.10.2010 and demanded refund of the above said  amount paid by the complainant’s son-in-law from the opposite parties, in order to purchase flat in some other place for his son-in-law.  The opposite parties have also returned the said advance amount / booking amount  a sum of Rs.7.05 lakhs on 01.04.2011 and another amount of Rs.7.90 lakhs on 09.05.2011 to the complainant accepting the cancellation of booking of the flat belatedly. 

7.     However the complainant has raised grievance that the cancellation of booking of flat was due to delay in progressing in construction of the Villa and the infrastructures thereon on the part of the opposite parties and the refund of the said amount was made to the complainant belatedly that too without interest and which caused the complainant and his son-in-law proposed purchaser to find out another flat to purchase on the higher cost and by the cancellation of the complaint mentioned flat the opposite parties have also benefited by selling the same for the enhanced cost as such the complainant and his son-in-law were caused suffering and hardship and mental agony and complainant has claimed  Rs.10,74,749/- being the  extra amount  to be incurred by the complainant to purchase another flat as alternative and also claim a sum of Rs.3,50,000/- towards interest and also compensation of Rs.5,00,000/- against the opposite parties in the complaint.

8.     Whereas the opposite parties had resisted the complaint stating that the complaint filed by the complainant without any power of attorney or authorization from the actual proposed purchaser namely Sathish Kumar is not maintainable.  The opposite parties have also contended that  the construction work was under progress  and denied the allegations made by the complainant that the constructions work  would not be completed and delivery of the Villa will not be made as promised by the opposite parties in June 2011.  However complainant at his free will came for cancellation of the booking of the said Villa on for their personal reason with good gesture they have returned the  booking amount paid by the complainant as such there is no deficiency of service on the part of the opposite parties.  The claim made by the complainant in complaint are all baseless and imaginary loss said to have been suffered by the complainant and the complaint is liable to be dismissed. 

9.     Considering the facts and circumstances of the case, as per the both side pleadings there is no written contract or agreement for the said purchase of the Villa by the Complainants’ son-in-law Sathish kumar from the opposite parties. Since the complainant is the father-in-law of the  actual  proposed  purchaser Sathish Kumar and the complainant from the beginning and till the cancellation and even after the cancellation have effectively contacting with the opposite parties in the said dealings, the complaint  being filed under the Consumer Protection Act  by the complainant on behalf of his son-in-law Sathish Kumar is permissible and it is not suffered any defects as contended by the opposite parties on the said ground.   

10.    As contended by the opposite parties the cancellation of booking of the said flat by the complainant is considered to be at the free will of the complainant on their personal reason is acceptable.  Because for the purchase of the Villa  the booking was made on 21.10.2009.  Though the proposal of handing over of possession of the Villa was in the June of 2011 before the said date of delivery the complainant  came forward  to cancel the Villa on 31.10.2010 itself.  As per the oral agreement  though the cost of the Villa Rs.79,51,051/- a meager amount of Rs.15,40,000/- alone was paid by the complainant’s side to the opposite parties whereas the remaining balance of the cost of the Villa was agreed to be paid only on the date of delivery of possession.  Considering the above facts and circumstances of the case, before eight months of the agreed date of delivery of the possession of the Villa, the complainant side came forward for cancellation, and the same was also been accepted by the opposite parties with the good gesture of the customer interest is acceptable.  Further at that time of cancellation as contended by the opposite parties they have already commenced the construction work of the Villa by spending substantial amount of their own with the booking amount paid by the complainants’ side.   Considering all the above facts of the case we are of the considered view that the contention made on the side of the opposite parties that the complainant has suffered loss and mental agony in purchasing another flat  on enhanced market rate are all not acceptable and are all appear to be imaginary, since there is no proof  on the side of complainant that they have purchased another flat in the name of Sathish Kumar on the enhanced market rate is acceptale.  Therefore the claim of compensation  made in the complaint in this regard as against the opposite parties  are not sustainable. 

11.    Therefore considering the above facts and circumstances, since the cancellation of booking of the flat was made on 31.10.2010  and the same was accepted by the opposite parties, they would have returned the said advance amount of Rs.15,40,000/- received from the complainant’s son-in-law Sathish kumar on the same date.  But the said amount was returned by the opposite parties in two parts i.e 7,50,000/- on 01.04.2011 and Rs.7,09,000/- on 09.05.2011.  Therefore we are of considered view that the opposite parties ought to have returned the said amount with interest at the rate of 12% p.a. from the date of cancellation to till the date of payment.  But they failed to pay the said interest amount.   To that extent the opposite parties have committed deficiency of service which caused monetary loss to the complainant, hence the opposite parties are liable to pay to the son-in-law of the complainant as compensation.  Accordingly,  the opposite parties are liable to pay a sum of Rs.37,500/- as interest  amount,  for the portion of the amount of  Rs.7,50,000/- paid on 01.04.2011 and a sum of Rs.47,400/- as interest  for the portion of the amount of Rs.7,90,000/-  paid  on 09.05.2011  totaling Rs.84,900/-.   Therefore we are of the considered view that the opposite parties are to be directed to pay the said sum of Rs.84,900/- towards interest for the amount refunded already to the complaint mentioned  Sathishkumar, the son-in-law of the complainant and also to pay a sum of Rs.3000/- as litigation charges.  Accordingly  the points 1 and 2 are answered.

        In the result, the complaint is partly allowed.  The opposite parties 1 and 2 are jointly and severally directed to pay a sum of Rs.84,900/- (Rupees Eighty four thousand and nine hundred only) towards interest for the amount refunded already, to the complaint mentioned  Sathish Kumar,   the son-in-law of the complainant, and also to pay a sum of Rs.3000/- as cost, within six weeks from the date of this order.  Failing which the said  amount of Rs.84,900/- will also carry interest at the rate of 9% p.a. from the date of this order to till the date of payment.          

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  3rd    day  of  May   2016.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1- 21.10.2009         - Copy of receipt issued by the 2^nd opposite party.

Ex.A2- 13.1.2010  - Copy of receipt issued by the 2^nd opposite party.

Ex.A3- 13.1.2010  - Copy of allotment letter issued by the 2^nd opposite party.

Ex.A4-      -         - Copy of emails sent by complainant to 1^st opposite party.

Ex.A5- 31.1.2011  - Copy of RPAD letter sent by complainant to 2^nd opposite

                             Party.

Ex.A6- 4.2.2011    - Copy of letter of 2^nd opposite party to complainant.

Ex.A7- 9.2.2011    - Copy of RPAD letter sent by complainant to 2^nd opposite

                             Party.

Ex.A8- 28.5.2011  - Copy of RPAD letter of complainant to 2^nd opposite party.

Ex.A9- 31.1.2011  - Copy of agreement between the complainant and DLF

                             For purchase of flat at OMR.

Ex.A10- 16.1.2010         - Copy of agreement between the Thanu Nataraja Pillai

                              And DLF for purchase of flat at OMR.

Ex.A11- 14.7.2011         - Copy of emails between Arjuna pai and 2^nd opposite party

                             and  2^nd opposite party to Arjuna pai.

Ex.A12- 14.7.2011         - Copy of new pricelist of Villa sent by 2^nd opposite party to

                              Arjuna pai.

Ex.A13- 12.7.2011         - photographs taken at Villa Viviana site on 12.7.2011.

Ex.A14-       -       - Copy of Passport.

Ex.A15-       -       - Copy of General Power of attorney.

Ex.A16-       -       - Copy of  General power of attorney.

Ex.A17- 1.4.2011  - Copy of letter from the 2^nd opposite party to the

                              Complainant.

Ex.A18- 10.1.2013         - Copy of letter from DLF Southern Homes Pvt. Ltd to

                             Satheesh Homes Private Limited., Chennai.

 

 

Opposite parties’ Exhibits:-   .. Nil ..

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.