Tamil Nadu

North Chennai

179/2014

Tmt.Jayanthi Thiyagarajan - Complainant(s)

Versus

B.Sampathkumar,Chairman,M/s.Jeayam Shelters(P) Ltd, - Opp.Party(s)

G.Gopalakrishnan

06 Sep 2016

ORDER

                                                            Complaint presented on:  22.08.2014

                                                                Order pronounced on:  22.09.2016

 

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

 

THURSDAY THE 22^nd  DAY OF SEPTEMBER 2016

 

C.C.NO.179/2014

 

 

Tmt.Jayanthi Thiyagarajan,

No.1, SR Colony, 2^nd Streeet, Madampakkam,

Chennai – 600 126.

 

                                                                                    ….. Complainant

 

..Vs..

1.B.Sampathkumar, Chairman,

M/s. Jeyam Shelters (p) Ltd.,

244, MTH Road, Villivakkam,

Chennai – 600 049.

 

2. M/s.Jeayam Shelters (p) Ltd.,

The Chaairman,

244, MTH Road, Villivakkam,

Chennai – 600 049.

.....Opposite Parties

Date of complaint                                 : 16.09.2014

Counsel for Complainant                      : G.Gopalakrishnan

Counsel for   Opposite Parties                 : Mr.R.Ponnusamy

 

 

 

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 Opposite Parties developed a project construction of flat in survey No.192/3 of No.106 Kalavakkam Village, Thiruporur Panchayat Union, Thiruporur Township, Chengalpattu Taluk, out of 99 cents extent in the above said survey number. The 1^st Opposite Party executed an agreement of sale for 303 sq.ft of undivided share land in favour of the Complainant as a sale price of Rs.6,04,000/-. For the said agreement the Complainant paid an advance amount of Rs.50,000/-. An another agreement for construction of residential flat to an extent of 1210 sq.ft, flat No.1-D, First floor, in the proposed “JEAYAM’S SAMRAJ” entered  for a total consideration of Rs.31,93,620/-. For the said agreement the Complainant paid an advance amount of Rs.4,50,000/- and thus the Complainant totally paid a sum of Rs.5,00,000/-  towards the sale of UDS land and construction agreement. There was no communication from the Opposite Party and hence the Complainant visited the site during January 2013 and found that no work was started in the site. The Opposite Party did not respond for phone calls. The Complainant made periodical visits and found that some strangers were in the site and on enquiry she came to know that the Opposite Parties changed the construction contract to an another person without her knowledge. Hence the Complainant wrote a letter on 22.01.2014 revoking the agreements and asked him to return the advance amount with interest. The Complainant finally found the 1^st Opposite Party at Anna Nagar Office on 08.01.2014 and he agreed to return the advance amount of Rs.5,00,000/- and in addition a sum of Rs.2,50,000/- towards Compensation and accordingly the Opposite Parties issued a cheque dated 31.07.2014  in favour of the Complainant for a sum of Rs.5,00,000/- and also he paid to the Complainant a sum of Rs.2,50,000/- towards compensation through  RTGS on 21.07.2014. When the Complainant presented the cheque, the same was returned for want of insufficient fund on 04.08.2014. The act of the Opposite Parties not honouring the cheque and without her knowledge handed over construction to the 3^rd party is amounts to unfair trade practice and thereby committed Deficiency in Service. Hence the Complainant filed this Complaint to refund the advance amount Rs.5,00,000/- and compensation for mental agony with cost of the Complaint.

2. WRITTEN VERSION OF THE   OPPOSITE PARTIES IN BRIEF:

          The Complaint filed by the Complainant is not maintainable as there is no cause of action for the same, since no Deficiency in Service committed by this Opposite Parties. The Opposite Parties have to pay  only a sum of Rs.2,50,000/- and the rest of the claim of the Complainant is liable to be rejected. The Opposite Parties never promised to pay a compensation of Rs.2,50,000/-. Since a sum of Rs.2,50,000/- was paid through RTGS on 21.07.2014, the Opposite Parties gave instructions to stop payment of Rs.5,00,000/- cheque amount. 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 NO :1

          It is an admitted fact that the Opposite Parties developed a project in the name of  “JEAYAM’S SAMRAJ”  and the Complainant agreed to purchase a flat in the said project and the Opposite Parties agreed to sell 303 sq.ft of undivided share of land out of an extent of 99 cents for a sale  price of Rs.6,04,000/- and for the same the Complainant and the 1^st Opposite Party entered Ex.A3 agreement for sale and in the said agreement the Complainant paid a sum of Rs.50,000/- towards advance amount and the balance to be paid at the time of registration of sale and further the Ex.A4 construction agreement dated 21.06.2012 was entered between them to construct a built-up area of 1210 sq.ft, flat No.1-D at 1^st floor in the said project for a total construction cost of Rs.31,93,620/- and out of the said amount the Complainant paid a sum of Rs.4,50,000/- towards the construction agreement and thus totally the Complainant paid a sum of Rs.5,00,000/- towards the purchase of UDS land and flat.

          5. The Complainant alleged deficiency against the Opposite Parties is that after such agreement the Opposite Parties did not develop the project and they have handed over the project to a 3^rd party and after ascertaining the fact the Complainant issued Ex.A5 legal notice dated 22.01.2014 and thereafter the Complainant found the 1^st Opposite Party at Anna Nagar Office and after discussions the Opposite Parties agreed to refund the advance amount with compensation and however the cheque issued for refund of the advance amount of Rs.5,00,000/- was returned as for insufficient fund and thereby the Opposite Parties have committed  Deficiency in Service.

          6. The Opposite Parties did not dispute the project was given to the 3^rd party and also did not dispute that they have not commenced the work in pursuance of the agreement entered with the Complainant. The project given to a 3^rd party without the knowledge of the Complainant even after receipt of the  advance amount from the Complainant proves that the Opposite Parties committed unfair trade practice and thereby committed Deficiency in Service.          

7. POINT NO :2

          According to the Complainant the Opposite Parties agreed to refund the advance amount of Rs.5,00,000/- and also compensation for a sum of Rs.2,50,000/- and accordingly the compensation was paid to him through RTGS on 21.07.2014 and subsequently on 31.07.2014 a sum of Rs.5,00,000/-  was drawn in her favour by way of cheque and the said was returned and therefore she is entitled for refund of cheque amount with interest. The Opposite Parties would contend that he had already paid a sum of Rs.2,50,000/-  through RTGS and he is liable to refund the advance amount only a sum of Rs.2,50,000/- and hence he had  stopped the cheque payment and not honouring such a cheque payment is justifiable.

          8. Ex.A9 is the cheque issued by the Opposite Party for a value of Rs.5,00,000/- in favour of the Complainant and through Ex.A10 the said cheque was returned. The categoric case of the Complainant is that the Opposite Parties agreed to refund the advance amount and also agreed to pay compensation of Rs.2,50,000/-. Ex.A7 is the proof of payment of Rs.2,50,000/- to the Complainant through RTGS transactions. Only, after such payment through RTGS and after 10 days only on 31.07.2014 towards refund of advance amount of Rs.5,00,000/- Ex.A9 cheque was issued by the Opposite Parties. Since Ex.A9 cheque was issued for Rs.5,00,000/- on 31.07.2014 after paying a sum of Rs.2,50,000/- with a gap of 10 days strengthen the case of the Complainant  that the Opposite Parties agreed to pay compensation of Rs.2,50,000/- besides to refund  the advance amount paid by the Complainant and that is why the compensation amount paid at  the first instance on 21.07.2014  and subsequently the cheque was issued on 31.07.2014 to refund the advance amount. Therefore we hold that, the Complainant is entitled advance amount of Rs.5,00,000- from the Opposite Parties paid by her to them at the time of entering agreements. However the Complainant is not entitled for any interest for the said advance amount and also compensation for mental agony, since the Opposite Parties already paid a sum of Rs.2.50,000/- treated for the same. However the Complainant is entitled for a sum of Rs.5,000/- towards litigation expenses.

          In the result the Complaint is partly allowed. The Opposite Parties are jointly or severally are ordered to refund a sum of Rs.5,00,000/- (Rupees five lakhs only) towards advance amount, besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses.       

        The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 22^nd  day of September 2016.

 

MEMBER – II                                                               PRESIDENT

 

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated NIL                     Jeayam Shelters (p) Ltd site Advertisement

 

Ex.A2 dated 01.06.2012                   HDFC Bank Statement of the Complainant

30.08.2012

 

Ex.A3 dated 21.06.2012                   Sale agreement for UDS of land

 

Ex.A4 dated 21.06.2012                   Construction agreement

 

Ex.A5 dated 22.01.2014                   Legal notice by the Complainant to Opposite Party

 

Ex.A6 dated 31.07.2014                   Cheque No.105 for Rs.5,00,000/- issued by the

                                                Opposite Party to Complainant

 

Ex.A7 dated 21.07.2014                   RTGS by the 1^st Opposite Party to the

                                                Complainant

 

Ex.A8 dated 26.07.2014                   Notice by the Opposite Party

 

Ex.A9 dated 31.07.2014                   Opposite Party’s Cheque present for collection by

                                                 the Complainant

 

Ex.A10 dated 04.08.2014                 Opposite Party’s cheque returned with a memo for

                                                funds insufficient

 

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES :

                                                ….NIL….

 

MEMBER – II                                                               PRESIDENT