Date of Filing : 26.04.2011
Date of Order : 08.03.2016.
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)
2nd 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.153/2011
TUESDAY THIS 8TH DAY OF MARCH 2016
S. Karthikeyan,
Flat B Ground Floor,
Plot No.7A JL Apartments,
Kalthumetu Street,
Kotivakkam, Chennai – 41. ..Complainant
..Vs..
1. DLF Southern Homes P Ltd.,
By its Managing Director,
Old No.62, New No.113 3rd Floor,
“Chalam Towers”,
R.K. Salai, Mylapore,
Chennai -4.
2. The General Manager Marketing,
DLF Southern Homes P Ltd.,
Old No.62, New No.113 3rd Floor,
“Chalam Towers”,
R.K. Salai, Mylapore,
Chennai -4. ..Opposite parties
For the Complainant : M/s. A.V.Janarthan
For the Opposite parties 1 & 2 : M/s. Aiyar and Dolia
Complaint under section 12 of the Consumer Protection Act 1986. The complaint is filed seeking direction against the opposite parties to refund a sum of Rs.6,17,925/- with interest and also to pay a sum of Rs.7,00,000/- for deficiency in service, mental agony and unfair trade practice and also to pay a sum of Rs.20,000/- 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 states that the opposite parties company is a builder and promoter doing business of construction of apartments/flats and selling the flats, the complainant was working Merchant Navy and in order to purchase a flat promoted by the opposite parties company in Garden City DLF OMR, as per the terms and conditions of the opposite parties, complainant has given application for the proposal of the flat and made payment of Rs.4,00,000/- to the opposite parties on 09.07.2008. Further on demand made by the opposite parties by letter dated 14.07.2008, the complainant has also paid a sum of Rs.2,17,925/- to the opposite parties on 06.08.2008, the complainant was given a letter by the opposite parties for provisional allotment for the apartment No.4, in Tower No.D3, on floor No 8 at Garden City DLF OMR with parking space, dated 15.07.2008, subsequently on 06.03.2009 the allotment letter was also given by the opposite parties to the complainant requesting the complainant to sign and submit the necessary buyers agreement, the complainant also signed and submitted the apartment buyers agreement to the opposite parties. The complainant further stated that the opposite parties have initially allotted apartment no. 4 in D3 Tower, in the 8th floor but it has been subsequently changed as apartment No.5 in tower No.29 in the 8th floor in Garden city, OMR. The proposed original cost of the flat was also reduced from Rs.47,05,755/ to Rs.39.40,575/- due to remission. On 29-05-2009 the complainant was informed to avail timely payment rebates as per the letter sent by the opposite parties. The complainant also stated that the opposite parties without starting of constructions even in the month of September 2009, have sent letter demanding further payment of Rs.6,56,621/- on or before 10th October 2009, and also letter dated 22.12.2009 demanding a sum of Rs.9,26,665/- as due as on 5th January 2010, which are all not proper on the part of the opposite parties subsequently on 26-12-2009 the opposite parties had himself sent a letter stating that the above said demand note sent dated 22nd December 2009 with due date of January 2010 was dispatched by error and requesting the complainant to ignore the same, as the opposite parties regret for the inconvenience caused by the said letter. Further the opposite parties without starting the construction and requested the complainant for choosing some other alternative apartment from one already booked. As such the complainant not accepting the such attitude of the opposite parties sought for refund of money paid through NRE account with interest, as per the terms of the agreement. Despite of several demands and legal notice sent by the complainant to the opposite parties have not started the construction of the proposed flat agreed by the opposite parties with the complainant. As such the act of the opposite parties is amount to deficiency in service which caused mental agony and hardship to the complainant. As such the complainant has sought for refund a sum of Rs.6,17,925/- with interest and also to pay a sum of Rs.7,00,000/- for deficiency in service, mental agony and unfair trade practice and also to pay a sum of Rs.20,000/- as cost of the complaint to the complainant. Hence the complaint.
Written Version of opposite parties are 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 complainant is not a consumer and the complaint filed by the complainant is not maintainable as the complainant has not adopted for arbitration proceeding as agreed in the agreement, and also they have not started the construction of the said flat which was agreed with the complainant under the agreement, they have not abandoned the said project but deferred due to some problem. It is true that the complainant has paid a sum of Rs.6,17,925/-. The opposite party’s company had vide its letter dated 10.6.2009 informed complainant that the construction of the tower in which the apartment allotted to complainant was located was being deferred and the company hence offered to shift the allotment to some other which was under construction and the list of available units was informed to the complainant and another request was sent to the complainant vide letter dated 26.12.2009. However the complainant failed to exercise the options given, hence it was deemed that complainant wanted go to ahead with the allotted apartment and did not want to shift to any other tower. Therefore the complainant is liable to pay the payments as per the schedule mentioned in the agreement signed by the complainant for the allotted apartment. However despite of reminders the complainant failed to make any further payments and has paid a sum of Rs.6,17,925/- only till date. Though there is no provision of refund of money for the fault of the complainant, the opposite parties as a good will gesture accepted the request of complainant and sent a cheque dated 14.3.2011 for Rs.6,17,925/- towards refund of the entire amount paid by the complainant without interest and the same was informed to complainant vide mail dated 17.3.2011. Hence there is no deficiency of service on the part of the opposite parties and the complaint is liable to be dismissed.
3. Complainant has filed his Proof affidavit and Ex.A1 to Ex.A19 were marked on the side of the complainant. Proof affidavit of Opposite parties are filed and Ex.B1 was marked on the side of the opposite parties.
4. The points that arise for consideration are as follows:-
1) Whether there is any deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to the reliefs sought for?.
5. POINTS 1 to 2 : -
Perused the complaint filed by the complainant, the written version filed by the opposite parties, proof affidavits filed by complainant, opposite parties and the documents Ex.A1 to Ex.A19 filed on the side of complainant and Ex.B1, the copy of the resolution passed by the Board of Directors of the opposite parties company DLF Southern Homes Pvt., Ltd., through circulation on 29.7.2011, authorizing complaint mentioned opposite parties 1 and 2 the Director and the Legal to conduct this case on behalf of the said opposite parties company and considered both sides arguments.
6. There is no dispute that the opposite parties company is a builder and promoter doing business of construction of apartments/flats and selling the flats, the complainant was working Merchant Navy and in order to purchase a flat promoted by the opposite parties company in Garden City DLF OMR, as per the terms and conditions of the opposite parties, complainant has given application for the proposal of the flat and made payment of Rs.4,00,000/- to the opposite parties on 09.07.2008, as receipt Ex.A2. Further on demand made by the opposite parties by letter dated 14.07.2008, the complainant has also paid a sum of Rs. 2,17,925/- to the opposite parties as per the receipt Ex.A5 dated 06.08.2008, the complainant was given a letter by the opposite parties for provisional allotment for the apartment No.4, in Tower No. D3, on floor No 8 at Garden City DLF OMR with parking space, dated 15.07.2008, which is marked as Ex.A4, subsequently on 06.03.2009 the allotment letter Ex.A6 was also given by the opposite parties to the complainant requesting the complainant to sign and submit the necessary buyers agreement, the complainant also signed and submitted the apartment buyers agreement to the opposite parties, and the copy of the same is marked as Ex.A7. It is also not disputed as stated by the complainant that the opposite parties have initially allotted apartment No. 4 in D3 Tower, in the 8th floor but it has been subsequently changed as apartment No.5 in tower No.29 in the 8th floor in Garden city, OMR. The proposed original cost of the flat was also reduced from Rs.47,05,755/- to Rs.39.40,575/- due to remission. On 29.05.2009 the complainant was informed to avail timely payment rebates as per the Ex.A8 letter sent by the opposite parties.
7. However the complainant has stated that the opposite parties without starting of constructions even in the month of September 2009, have sent letter demanding further payment of Rs.6,56,621/- on or before 10th October 2009, as per Ex.A10 and also letter dated 22.12.2009 demanding a sum of Rs.9,26,665/- as due as on 5th January 2010, which are all not proper on the part of the opposite parties subsequently on 26.12.2009 the opposite parties had himself sent a letter Ex.A12, stating that the above said demand note sent dated 22-December 2009 with due date of January 2010 was dispatched by error and requesting the complainant to ignore the same, as the opposite parties regret for the inconvenience caused by the said letter. Further the opposite parties without starting the construction and requested the complainant for choosing some other alternative apartment from one already booked, which shows that the opposite parties have abandoned the proposed construction of apartment as such the complainant not accepting the such attitude of the opposite parties by letter dated 23.3.2011 sought for refund of money paid through NRE account with interest, as per the terms of the agreement, but for the said letter and demand made by the complainant though the opposite parties have replied by letter dated 15.03.2011 by informing for the refund of Rs.6,17,925/ and return of all related documents was very silent on the interest payable as per Clause.15 of the agreement as per the Ex.A15.
8. The complainant has raised grievance that despite of several demands and legal notice sent by the complainant the opposite parties have not started the construction of the proposed flat agreed by the opposite parties with the complainant and also not refund the said amount of Rs.6,17,925/- with interest and also claim the compensation against the opposite party for the alleged deficiency of service of not even started construction of the flat as per the agreement.
9. Whereas the opposite parties have raised several untenable resistance against the complaint filed by the complainant, such as complainant is not a consumer and the complaint filed by the complainant is not maintainable as the complainant has not adopted for arbitration proceeding as agreed in the agreement, and, also contended by admitting that they have not started the construction of the said flat which was agreed with the complainant under the agreement, they have not abandoned the said project but deferred due to some problem.
10. The above contention raised by the opposite parties are all not tenable by considering the facts and circumstances of the case, that since the complainant is a proposed purchaser of the said flat entered agreement with the opposite parties to purchase the same have also paid the initial payment as per the terms of the construction agreement. The opposite party without started the constructions saying that the said project was not abandoned but deferred are all not acceptable. Because as per the above contention raised by the opposite parties the alleged deferring of the constructions unilaterally without fixing any date for starting construction or without any proposal of future construction of the same, we are of the view that as contended by the complainant the opposite parties has abandoned the said proposed construction of the apartment. Therefore as per the terms mentioned in the apartment buyers agreement Ex.A7, in the clause 15 abandonment, the opposite parties is liable to refund the amount along with interest 9% per annum is acceptable, as the said agreement itself stands terminated due to abandonment of the project.
11. The contention raised by the opposite parties, that, as per the terms and conditions mentioned in the said agreement, any disputes raised between the parties the said dispute has to be referred to the arbitration only, contrary to the said condition the complaint filed by the complainant under Consumer Protection Act is not tenable is not acceptable since, as per section 3 of the Consumer Protection Act., the provisions of the Consumer Protection Act shall be in addition to and not in derogation of the provision of any other law for the time being in force. Therefore, as contended by the complainant though in the terms and conditions it is mentioned that the dispute raised between the parties has to be referred to the arbitration, that condition will not prevent the complainant to file complaint with regard to complaint mentioned dispute as per the above Sec 3 of the Consumer Protection Act is acceptable.
12. Therefore we are of the considered view that the opposite parties having assured to built the flat and handover the same as per the agreement entered with the complainant and also received a initial payment of Rs.6,17,925/- and not started construction of the flat and abandoned the same, the opposite parties are to refund the said amount to the complainant with interest at the rate of 9% p.a. from the date of receipt of the said amount i.e 06.08.2008 to till the date of payment. Further the act of the opposite parties that, having entered construction agreement and received a part payment and remained without starting of the construction as agreed under the agreement and also not refund the amount as per the terms of the agreement to the complainant prolonging the same for nearly 2 years, which has caused mental agony and hardship to the complainant is also acceptable. Therefore the facts and circumstances this case we are of the considered view that the opposite parties are liable to pay compensation to the complainant. However the compensation sought for in the complaint by the complainant on several heads a sum of Rs.7,00,000/- is exorbitant. Therefore we are of the considered view that the opposite parties are liable to pay a sum of Rs.25,000/- as just and reasonable compensation, and also to pay a sum of Rs.5000/- towards litigation charges to the complainant. Accordingly the points 1 and 2 are answered.
In the result, this complaint is partly allowed. The opposite parties are jointly and severally directed to refund a sum of Rs.6,17,925/- (Rupees Six lakhs seventeen thousand nine hundred and twenty five only) with interest at the rate of 9% p.a. from 06.08.2008 to till the date of payment and also to pay a sum of Rs.25,000/- (Rupees twenty five thousand only) as compensation and also to pay a sum of Rs.5000/- (Rupees five thousand only) as litigation charges to the complainant within six weeks from the date of this order, failing which the above said compensation amount of Rs.25,000/- will also carry interest at the rate of 9% p.a. from the date of order to till the date of payment.
Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the 8th day of March 2016.
MEMBER-I MEMBER-II PRESIDENT.
Complainant’s side documents:
Ex.A1- - - Copy of construction costs.
Ex.A2- 9.7.2008 - Copy of receipt for Rs.4,00,000/-
Ex.A3- 14.7.2008 - Copy of demand letter.
Ex.A4- 15.7.2008 - Copy of provisional allotment letter.
Ex.A5- 6.8.2008 - Copy of receipt for Rs.2,17,925/-
Ex.A6- 6.3.2008 - Copy of allotment letter.
Ex.A7- 27.5.2009 - Copy of apartment buyer’s agreement.
Ex.A8- 29.5.2009 - Copy of TPR letter.
Ex.A9- 10.6.2009 - Copy of opposite parties’ letter.
Ex.A10- 21.9.2009 - Copy of opposite parties’ letter.
Ex.A11- 22.12.2009- Copy of demand notice.
Ex.A12- 26.12.2009- Copy of opposite parties letter.
Ex.A13- 10.2.2011 - Copy of complainant’s letter.
Ex.A14- 23.2.2011 - Copy of complainant’s letter.
Ex.A15- 15.3.2011 - Copy of opposite parties’ letter.
Ex.A16- 23.3.2011 - Copy of legal notice.
Ex.A17- - - Copy of reply
Ex.A18- - - Photos.
Ex.A19- - - Site plan.
Opposite parties’ Exhibits:-
Ex.B1- - - Copy of Resolution passed by the Board of Directors of the
The complaint through circulation on 29th July 2011.
MEMBER-I MEMBER-II PRESIDENT.
