Tamil Nadu

South Chennai

CC/141/2016

M/s.S.Mohan - Complainant(s)

Versus

Authorised Signatory, VGN Developers Pvt Ltd - Opp.Party(s)

Party in Person

14 Jul 2022

ORDER

Date of Complaint Filed : 18.04.2016

Date of Reservation       :01.07.2022

Date of Order                :14.07.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,   : MEMBER II

 

CONSUMER COMPLAINT No.141/2016

THURSDAY, THE 14^th DAY OF JULY 2022

Mr.S. Mohan,

10/417, Mogappair East,

UmaruPulavarSalai,

J.J. Nagar East,

Chennai – 600037.                                                                                                                                                            ... Complainant     

 

..Vs..

Authorised Signatory,

VGN Developers Pvt Ltd,

15, Wallace Garden, 2^nd Street,

Nungambakkam,

Chennai – 600 006.                                                                                                                                                         ...  Opposite Party

 

******

Counsel for the Complainant             : Party in person

Counsel for the Opposite Party          : M/s. K. Harishankar

 

        On perusal of records and after having heard the oral arguments of the Complainant in person and the Counsel for Opposite Party, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to pay a sum of Rs.45,135/- together with interest at the rate of 14% from 09.10.2015 till date of realization + court charges + miscellaneous charges and to pay a sum of Rs.10,00,000/- towards punitive compensation for mental agony, inconvenience, huge loss and waste of time.

2.     The averments of Complaint in brief are as follows:-

                The Complainant had booked A Flat in 1st Floor VGN Royale, Avadi, No.A-133 and paid an amount of Rs.2,40,000/- towards advance on 08.04.2015. In the mean while he came to understand from various sources including news Reports that the quality of company construction was very poor. Proof is that VGN Platina Duplex Flats, Ayyapakkam Flat No-119 on 23.05.2015 night 9.00 pm the roof was reported to have fallen and covered the bedroom cot. Flat is 2 years old. In this circumstances the Complainant  cancelled his booking of Flat and asked for returning the advance amount Rs.2,40,000/- on 29.05.2015. But the VGN had returned the amount Rs.1,94,865/- only on 09.10.2015. Then the Complainant asked balance advance amount Rs.45,135/- on 21.10.2015. VGN had Informed on 12.12.2015 that the balance amount had been deducted as cancellation charges. Then the Complainant approached  citizen consumer and civic action group (CAG) on 06.01.2016, they sent a email on 04.02.2016 to VGN for balance amount refund and also sent a reminder on 10.03.2016 and 28.03.2016. But VGN side there was no response. The Complainant was compelled to cancel his booking of flat only because of his fear on seeing media reports about the poor quality work of VGN in another site, where the roof was reported to have fallen. The Opposite Party has committed deficiency of service and unfair trade practice and above all the Complainant had suffered mental agony. Hence the complaint.

3.Written Version filed by the Opposite Party in brief is as follows:-

        The Complaint pertains to issues arising out of a commercial contract between the Parties and therefore being a contractual dispute would not fall within the purview of the Consumer Protection Act. Also, serious factual allegations are made in the Complaint and this requires appreciation of evidence, which cannot be done in a summary proceeding, before this Hon'ble Court. Hence, this complaint is not maintainable before this Hon'ble Court and is liable to be dismissed in-limine on this ground alone. The Opposite Party admits that the Complainant had booked a residential flat in 1^st floor VGN Royale, Avadi, No-A-133 and paid an advance amount of Rs.2,40,000/- on 08.04.2015. It is admitted that the Complainant wanted to cancel his booking of flat with the Opposite Party for his personal reasons through letter dated 29.05.2015. It is submitted that after the deduction of 2% cancellation charges the advance amount paid by the Complainant was returned to him promptly. Advance amount of  Rs.2,40,000/- was paid by the Complainant and after deduction of 2% cancellation charges of Rs.1,94,865/- was returned to the Complainant on 09.10.2015. It is thus brought to light that the same booking form was thoroughly read by the Complainant and signed with complete consent. 

        It is submitted that the said cancellation charge was collected from the Complainant as per the terms agreed in the booking form and there was no compulsion or coercion on the Complainant to sign the same. The Complainant being prudent customer after reading and understanding the contents of the Agreement, executed the same and agreed to the clause of the agreement as mentioned in the booking form, leveling such allegations against the Opposite Party after having agreed to pay for the 2% deduction along with the cancellation charges the same is not maintainable in law and the Complainant is specifically barred by the Principle of Estoppel. It is humbly submitted that the project VGN Royale comprises 1290 Apartments all being occupied by their respective owners who have been enjoying the luxury of the amenities provided by the Opposite Party. It is submitted that all the averments made by the Complainant at this juncture is only because of his fault finding nature, affinity for litigations and any other reasons whatsoever better known  to the Complainant. It is submitted that the Complainant having acknowledged to the terms and conditions while making the payment is bound by the terms of the contract entered into between the parties. Hence there are no merits in the contention of the Complainant. Hence prayed to dismiss the complaint.

4.      The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-8  were marked.   

The Opposite Parties submitted their Proof Affidavit and Written Arguments. On the side of the Opposite Party documents Ex.B-1 to Ex.B-5 were marked

 

5.     Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1

The undisputed facts are that the Complainant had Booked A Flat in 1st Floor VGN Royale, Avadi, No.A-133 and as per Ex.A-1 had paid an amount of Rs. 2,40,000/- towards Advance on 08.04.2015 to the Opposite Party. In view of the news report, Ex.A-3 that the roof was reported to have fallen at the VGN Platina Duplex Flat, Ayappakkam and covered the bedroom cot on 23.05.2015 the Complainant cancelled the booking of Flat and sought for repayment of the advance amount from the Opposite Party vide Ex.A-3. The Opposite Party had returned the sum of Rs.1,94,865/- on 09.10.2015 as found in Ex.A-4. By letter dated 21.10.2015, Ex.A-5, the Complainant had sought for the balance amount of Rs.45,135/-, to which the Opposite Parties through their  e mail dated 12.12.2015 had replied that they had deducted 2% for the cancellation charges as per the terms and conditions agreed by the Complainant at the time of booking of flats. The contention of the Complainant was that he was compelled to cancel his booking only due to media reports about the poor quality of work of the Opposite Party in another site.

The Opposite Party admits the Complainant had booked a residential flat in 1^stFloor VGN Royale, Avadi, No-A-133 and paid an advance amount of Rs.2,40,000/ on 08.04.2015. It is admitted that the Complainant wanted to cancel his booking of flat with the Opposite Party through letter dated 29.05.2015. The  amount of  Rs.2,40,000/- was to be repaid to the Complainant, but after deduction of 2% cancellation charges, Rs.1,94,865 was returned to the Complainant on 09.10.2015.

The cancellation clause of the booking form is here below:

Before agreement A: In case at any stage, the applicant seeks cancellation of the booking before signing the agreements, 2% of the flat cost will be deducted as cancellation fee but the company, and balance amount will be refunded. All such refunds shall be made only after identifying an alternate buyer and also on receipt of the payments from the said alternate buyer or a period of 90 days, whichever is earlier from the date of receipt of cancellation letter from the customer."

As per the terms contained in the booking form,Ex.B-1 which was agreed and signed by the Complainant, the Opposite Party is entitled to deduct 2% of the flat cost. The Complainant had on his volition sought cancellation of flat by his letter dated 29.05.2015 which was agreed to and refunded by the Opposite Party after deducting 2% of the flat cost in terms of the Agreement as per the payment advice dated 21.08.2015, Ex.B-4. On 09.10.2015, the Complainant had acknowledged the cheque dated 21.08.2015 issued by the Opposite Party towards cancellation of flat booked by him and confirmed of receiving the entire refund and that there was no due from the Opposite Party. Having acted in terms of the Agreement, the Opposite Party has not committed any unfair trade practice or deficiency in service as alleged by the Complainant.

Reliance was placed on the Order of the Hon’ble National Consumer Disputes Redressal Forum, New Delhi,in R.P.No.1506 of 2012 on 12.01.2012 in the case of Indu Bala Satija vs Haryana Urban Development Authority, wherein it was observed that it is well settled law that once the cheque already issued in favour of the Complainant has been encashed, no further cause of action exists in favour of the Complainant. Further it was observed that once the Petitioner received the amount unconditionally and got the cheque encashed, under these circumstances, petitioner ceases to be a consumer as per the Act. The privity of contract or relationship of consumer and service provider between the parties, if any, comes to an end the moment petitioner accepted the refund amount and got the cheque encashed.

In the instant case the Complainant had received the advance amount by way of cheque  from the Opposite Party towards cancellation of flat by him and got encashed. Hence this Commission is of the considered view that the Complainant having received the amount towards entire refund and confirming that there is no deficiency of service or unfair trade practice on the part of the Opposite Party. Accordingly Point No.1 is answered.

 

Point Nos. 2 and 3:-

        As discussed and decided Point No.1 against the Complainant, the Complainant is not entitled for the reliefs claimed in the complaint and for any other relief/s.

 In the result the complaint is dismissed. No costs.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 14^th day of July 2022.

 

 

S. NANDAGOPALAN                                                           T.R. SIVAKUMHAR                                                  B.JIJAA

       MEMBER II                                                                           MEMBER I                                                      PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	08.04.2015	Advance receipt
Ex.A2	24.05.2015	News Report
Ex.A3	29.05.2015	Cancellation Letter
Ex.A4	09.10.2015	Received Amount
Ex.A5	21.10.2015	Balance Advance Amount Letter
Ex.A6	12.12.2015	Terms and Conditions Copy
Ex.A7	06.01.2016	Approch CAG
Ex.A8	04.02.2016	CAG to VGN

 

 

 

 

List of documents filed on the side of the Opposite Party:-

 

 

Ex.B1	09.04.2015	Receipt for Rs.1,00,000/- given by the Opposite Party to the Complainant
Ex.B2	09.04.2015	Receipt for Rs.1,40,000/- given by the Opposite Party to the Complainant
Ex.B3	29.05.2015	Letter for cancellation given by Complainant to the Opposite Party
Ex.B4	21.08.2015	Cheque regarding refund issued by the Opposite Party to the Complainant
Ex.B5	09.10.2015	No due letter by the Opposite Party to the Complainant.

 

 

 

S. NANDAGOPALAN                                                           T.R. SIVAKUMHAR                                                            B.JIJAA

       MEMBER II                                                                              MEMBER I                                                             PRESIDENT