Tamil Nadu

South Chennai

417/2010

V.Murugesan - Complainant(s)

Versus

Arun Excello Homes Private Ltd - Opp.Party(s)

K.Murugan

25 May 2016

ORDER

                                                                        Date of Filing :   19.11.2010

                                                                        Date of Order :   25.05.2016.

 

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.417/2010

WEDNESDAY THIS  25^TH  DAY OF MAY 2016

 

Mr. V.Murugesan,

S/o. G.  Velayutham,

No.10/18A Pathasarathy Street,

2^nd Floor, Aminjikarai,

Chennai 600 029.                                          ..Complainant

 

                                         ..Vs..

 

Arun Excello Homes Private Limited,

Rep. by its General Manager Marketing,

Mr.K.Ramachandren,

Bhattah Towers,

No.18, West Cott Road,

Royapettah,

Chennai 600 014.                                        ..Opposite party   

 

 

For the Complainant                    :    M/s. K.Murugan      

For the opposite party                 :    M/s. Dr.P.Vasudevan & another  

 

Complaint under section 12 of the Consumer Protection Act 1986.  The  complaint is filed seeking direction against the opposite party to repay the advance amount of Rs.50,000/- and also to pay a sum of Rs.2,00,000/- as compensation for mental agony and Rs.1000/- as cost of the complaint to the complainant.

ORDER

 

THIRU. B. RAMALINGAM PRESIDENT

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

 

The complainant submit that the opposite party is the building promoter and the complainant along with his wife in order to purchase a residential flat have paid a sum of Rs.50,000/- on 9.8.2010 and the opposite party  had given provisional allotment letter, dated 11.8.2010 mentioning the flat particulars allotted for the complainant and his wife.   After payment of a sum of Rs.50,000/- as advance,  though the opposite party given an allotment letter, as promised by the opposite party, they had not arranged any loan for the purchase of the flat to the complainant and not even intimated and taken any further steps towards the said transaction, when the complainant has approached the opposite party regarding the same the opposite  party has  given a copy of agreement and insisted the complainant to sign the same, when the complainant has gone through the agreement it contains a condition that in the event of cancellation of said allotment Rs.25,000/- will be forfeited, disagreeing for the said condition the complainant has refused to sign the agreement and demanded for refund of the entire advance amount of  Rs.50,000/- from the opposite party, whereas the opposite party has not returned the amount.  Accordingly legal notice given by the complainant, the opposite party has not returned the advance amount of Rs.50,000/- and given reply stating that they will refund the advance amount only after deducting  Rs.25,000/- as per terms and conditions found in application given by the complainant for the booking of the flat, which is unfair trade practice and amounts to deficiency of service on the part of the opposite party.     As such the complainant has sought for claiming for repayment of the advance amount of Rs.50,000/- and also to pay a sum of Rs.2,00,000/- as compensation for mental agony and Rs.1000/- as cost of the complaint to the complainant.     

Written Version of opposite parties are  in briefly as follows:

2.     The opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.     The opposite party has informed the complainant that the opposite party will render all the assistance to the complainant in getting the housing loan.   However, the opposite party did not give any assurance or undertaking that it would certainly arrange to get the loan.  Further the payment of Rs.50,000/- was not on the promise made by the opposite party’s executives as alleged, but upon the terms and conditions detailed in the “Application for allotment”.     The opposite party submit that the complainant having signed the “application for allotment” as early as on 1.8.2010 is now taking a totally different stand that he was shocked and surprised to notice that within 30 days from the date of allotment Rs.25,000/- cancellation charges on the earnest money will be deducted from the sum of Rs.50,000/-.   The opposite party also submit that through the reply to the legal notice issued on behalf of the complainant, the opposite party made abundantly clear that the opposite party is always ready and willing to repay Rs.25,000/- to the complainant as per terms  5 of the “application for allotment”.  The opposite party even now is ready and willing to pay the said amount of Rs.25,000/- to the complainant as per the said terms of “Application for allotment”.   Hence there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.  

3.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A6 were marked on the side of the complainant.   Proof affidavit of  Opposite party filed and no document was marked on the side of the  opposite party.   

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

1.   Whether the opposite party 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 party, proof affidavit filed by both sides, and the documents Ex.A1 to Ex.A6 filed on the side of complainant  and also considered the both side arguments.

6.     There is no dispute that the opposite party is the building promoter and the complainant along with his wife in order to purchase a residential flat have paid a sum of Rs.50,000/- on 9.8.2010 and the opposite party  had given provisional allotment letter Ex.A2 dated 11.8.2010 mentioning the flat particulars allotted for the complainant and his wife.  

7.     The complainant had raised grievance in this complaint against the opposite party stating that after payment of a sum of Rs.50,000/- as advance,  though the opposite party was given an allotment letter, as promised by the opposite party, they had not arranged any loan for the purchase of the flat to the complainant and not even intimated and taken any further steps towards the said transaction, when the complainant has approached the opposite party regarding the same the oppostie party has  given a copy of agreement and insisted the complainant to sign the same, when the complainant has gone through the agreement it contains a condition that in the event of cancellation of said allotment Rs.25,000/- will be forfeited, disagreeing for the said condition the complainant has refused to sign the agreement and demanded for refund of the entire advance amount of  Rs.50,000/- from the opposite party.   Whereas the opposite party has not returned the amount.  Further despite of legal notice given by the complainant the opposite party has not returned the advance amount of Rs.50,000/- and given reply stating that they will refund the advance amount only after deducting  Rs.25,000/- as per terms and conditions found in application given by the complainant for the booking of the flat, which is unfair trade practice and amounts to deficiency of service on the part of the opposite party and complainant filed this complaint for refund of the said advance amount and also compensation. 

8.     Whereas the opposite  party has resisted the said complaint saying that as per the terms and conditions  found column-5 of the application for allotment given by the complainant and his wife in the event of cancellation of the said allotment the complainant is entitled only refund of Rs.25,000/- and the opposite party is also ready to refund the said amount there is no unfair trade practice or deficiency of service on the part of the opposite party as alleged in the complaint by the complainant and contended that contrary to the said conditions the complaint filed by the complainant claiming refund of entire advance amount and claim of compensation is not maintainable. 

9.     On perusal of allotment letter Ex.A2, there is no mentioning of any condition regarding cancellation and refund of advance amount.   Even the allotment letter Ex.A2 the terms and conditions Ex.A3, are not signed by the complainant or his wife.   The opposite party’s General Manager Marketing alone appears to be signed in Ex.A2 & Ex.A3.  Further the contention made by the opposite party is that the complainant have given the application for allotment in which column-5 the relevant condition for cancellation of allotment and refund of advance amount are mentioned, accordingly the complainant are entitled for refund of  Rs.25,000/- only after deduction as per the said condition on the cancellation of allotment.    However the opposite party has not produced the alleged duly signed, allotment application given by the complainant and his wife.   Therefore relying upon the condition mentioned in Column-5 of the allotment application the contention of the opposite party is not acceptable to be proved.    Even apart from the said allotment application Ex.A2 & Ex.A3 filed on the side of complainant in respect of the said transaction have also not signed by the complainant and his wife.   Therefore we are of the considered view that as contended by the complainant the complainant is not at all agreed for the said condition that in event of cancellation of allotment the allottee / complainant have to forgo 50%  of advance amount i.e. Rs.25,000/-.   Further though the advance amount of Rs.50,000/- paid by the complainant to that effect the opposite party have only  given an allotment  letter Ex.A2.  No further action between the both parties in respect of the said transaction was taken place are materialized such as entering an agreement for construction as mentioned in allotment letter Ex.A2.    Therefore we are of the considered view that since there is no finality was arrived for the purchase of the said flat between the parties after discussing the detailed terms and conditions and by entering a valid agreement between the parties, on the event of cancellation of the allotment by the complainant the opposite party is liable to return the entire advance amount to the complainant.   Contrary to this, since the said allotment of flat was cancelled by the complainant before entering and executing the proper agreement, between parties the opposite party’s act of refusing to refund the entire advance amount on the ground of condition found in the proposed agreement going to be signed by the complainant is amount to deficiency of service and which caused suffering and hardship to the complainant is acceptable.    Therefore we are of the considered view that the opposite party is directed to refund the entire advance amount of Rs.50,000/- with interest at the rate of 12 %  p.a. from  the date of legal notice dated 4.10.2010 to till the date of payment.  Considering the facts and circumstances of the case  as stated above the refund amount is ordered to be paid by the opposite party with interest.  Hence we are not inclined to grant compensation sought in the complaint against the opposite party.   Further the opposite party is also liable to pay a sum of Rs.5000/- as litigation charges to the complainant and accordingly the points 1 & 2 are answered. 

 In the result the complaint is partly allowed.  The opposite party is directed to refund a sum of Rs.50,000/- (Rupees Fifty thousand only) with interest at the rate of 12% p.a. from 4.10.2010 to till the date payment and also to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation charges to the complainant within six weeks from the date of this order.

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  25^th   day  of  May   2016.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents :

Ex.A1- 9.8.2010    - Copy of receipt for Rs.50,000/-

Ex.A2- 11.8.2010  - Copy of provisional Allotment letter.

Ex.A3-         -       - Copy of agreement for terms and conditions.

Ex.A4- 4.10.2010  - Copy of legal notice.

Ex.A5- 22.10.2010         - Copy of postal acknowledgement card.

Ex.A6- 28.10.2010         - Copy  of reply legal notice.

 

Opposite party’s side documents: -   .. Nil ..

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.