PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding deficiency in service on the part of Opposite Parties as they did not return Rs.5,000/- taken from the Complainant towards to purchase of tenements at Dhyanaprastha Foundation Senior Citizen Complex at Coimbatore.
The facts of the case, as alleged by the Complainant are that he is a resident of Mumbai and the Opposite Party No.1 is the President of Dhyanaprastha Foundation Society and Opposite Party No.2 is the Manager of that Society. The Dhyanprasth Foundation is a registered society. This society had undertaken the construction and development of properties & allotting apartments to senior citizens at Coimbatore.
2) It is the contention of the Complainant that as per the representation of the Opposite Parties, Complainant was induced to purchase two tenements and accordingly he sent one D.D. of Rs.75,000/- dtd.05/07/03 in the month of July or August as a token amount and by way earnest money deposit in respect of aforesaid tenements. Here the Complainant has not mentioned as in whose name this D.D. was drawn. He also sent another D.D. of Rs.5 Lacs dtd.26/07/03 making total payment Rs.5,75,000/- towards the purchase of the two flats. It is further stated that the Opposite Parties did not issue any receipt for these payments though they received the above said D.D.s and enchased them.
3) The Complainant further states that, despite the receipt of the above payment, the Opposite Parties did not execute any agreement for this transaction and did not communicate about the allotment the two tenements. Therefore, he wrote a letter dtd.13/08/3 to the Opposite Party and revoked his offer for the tenements and called upon the Opposite Parties to return the above said amount to him. On this the Opposite Parties return a D.D. of Rs.5,17,500/- on 01/10/03 and retained Rs.57,500/- with them, stating that they deducted this amount on account of land development and administrative cost. The Complainant then protested this act of Opposite Parties, of retaining Rs.57,500/- and called upon the Opposite Parties to refund the said amount. After some correspondence, the Opposite Parties returned an amount of Rs.52,500/- deducting Rs.5,000/- towards administrative charges. Thereafter, the Complainant by his letter dtd.22/12/03 called upon the Opposite Parties to refund the said amount of Rs.5,000/-. The Complainant further states that the Opposite Parties are not entitled to deduct the amount as administrative charges. The Complainant also sent a legal notice through his advocate to the Opposite Parties for refunding the amount of Rs.5,000/- and interest on it but Opposite Parties failed to respond this notice also.
4) Therefore, the Complainant has finally prayed for Rs.5,000/- to be paid to him by the Opposite Parties with interest, Rs.25,000/- be paid to him by the Opposite Parties for deficiency in service and Rs.10,000/- be paid to him for mental agonycaused to him by the Opposite Parties.
5) The Complainant has attached the xerox copies of the following documents in support of his complaint –
a) Complainant’s letter dtd.13/08/03 to Opposite Party.
b) Opposite Parties letter dtd.01/10/03 to the Complainant.
c) Complainant’s letter dtd.22/12/03.
d) Notice dtd.28/05/04 addressed to Opposite Parties.
The complaint was admitted and notices were issued to Opposite Parties. Opposite Parties jointly sent their written statements to this Fourm wherein they denied the allegations of the Complainant and stated that, Dhyanprasth Foundation is the registered society and Complainant had dealings with this society and not with the Opposite Parties. The amounts stated in the complaint were deposited in the said society and the Opposite Parties are its office bearers. Therefore, Complainant has wrongly implicated the Opposite Parties. Opposite Parties have no personal contract with the Complainant.
6) The Opposite Parties have clarified in their written statement that the Dhyanprastha is registered society organized for establishing Sr. Citizens home, for propagations of education and learning etc. This society constructed cottages and offered to Sr. Citizen home under lease agreement as per the terms and conditions stipulated. Any person who is a Sr. Citizen (of & and the age of 60 years) were eligible to book the luxury cottages to be constructed by the Opposite Parties.
7) The Complainant and his relative visited the Dhyanprastha Trust under which the Sr. Citizen homes were promoted and expressed that they required two tenements in an ongoing project in the year 2003 in Dhyanprastha Sr. Citizen homes. Dhyanprastha Society offered to allot 2 tenements to the Complainant and S.V. Krishnan on lease basis as per terms and conditions of the Society. As per the terms and conditions of the society, if the allottee wants to withdraw from the allotment of the tenements after the payment, the society is entitled to retain 10 % of the amount paid (deposited) as the administrative expenses. The terms and conditions were read over and explained and copy of the said terms & conditions was also handed over to the Complainant. After this the Complainant had paid Rs.5,75,000/- through D.D. The D.D.s were dtd.05/07/03 and 26/07/03. This payment was made in favour of Dhyanprastha and not to the Opposite Parties.
8) The Opposite Parties have further categorically clarified that the Complainant himself had sent a letter dtd.13/08/03 requesting the Opposite Parties to cancel the allotment of the tenements to him and further reuqested the society to refund the amount of Rs.5,75,000/-. The Opposite Parties have further clarified that the society is an organization. Any proposal is to be placed in meeting of the society and a decision is to be taken in the meeting. Therefore, the proposal for cancellation of the booking of the cottages offered to the Complainant was also placed before the society members. The society members decided to withhold 10 % of the amount sent by the Complainant and rest amount was to be refunded to the Complainant. The society refunded Rs.5,17,500/- to the Complainant immediately after its decision on 01/10/03 and refund Rs.57,500/- (10%) towards the land development and administrative cost as per the terms & conditions of the society.
9) The Complainant again demanded the amount of Rs.57,500/- against the terms and conditions of the society. The society, did not want to enter into any controversy and hence, decided to refund Rs,52,500/- to the Complainant after placing the proposal before the office bearers of the society and only 5,000/- Rs. were retained towards the administrative cost as a special case. The Complainant accepted this decision of the society. This amount of Rs,52,500/- was sent to the Complainant vide D.D. dtd.15/12/03. The Complainant had acknowledged the D.D. and specifically stated in his letter that “he has received the amount of Rs.52,500/- in full and final settlement of dues towards refund of the deposit made for booking of cottages in Dhyanprastha Foundation. The Opposite Parties have specifically averred that, having received the said amount in full and final settlement, the Complainant cannot subsequently claim the amount of Rs.5,000/- and other compensation as claimed in the complaint.
10) The Opposite Parties have further explained that the cottages were to be given on lease to the Sr. Citizens and the lease agreements were to be entered in to only after the completion of the cottages. The Complainant withdrew his booking before the society could issue the receipt for the payment made by the Complainant. Therefore, question of issuance of receipt for the payment of Rs.5,75,000/- and lease agreement does not arise.
11) It is further contended by the Opposite Parties that it is not the society who committed the breach of contract but it is the Complainant who committed the breach of contract by withdrawing himself from the contract by sending a letter dtd.13/08/03 and calling upon the Opposite Parties to refund his money back.
12) The Opposite Parties have also submitted that no part of the cause of action arose in Mumbai. All the transaction have taken place in Coimbatore so this Forum has no territorial jurisdiction, as the Opposite Parties are from Coimbatore, their office is at Coimbatore, booking amount was paid at Coimbatore. The society and its property is at Coimbatore.
13) Lastly the Opposite Parties have submitted that they have not done anything which will amount to deficiency in service on their part and hence, the reliefs sought by the Complainant are turned down by the Opposite Parties and prayed to dismiss the complaint with cost.
14) The Opposite Parties have attached the xerox copies of the following documents in support of their written statement –
a) Notarized copy of receipt dtd.01/10/03 for Rs.5,17,500/- executed by the Complainant.
b) Notarized copy of receipt dtd.15/12/03 executed by the Complainant for Rs.52,500/-.
c) Reply sent by Opposite Party No.1, dtd.05/01/04.
d) Notarized copy of Bylaws of Dhyanprastha society.
e) Notarized coy of terms and conditions of above society.
15) The Complainant thereafter has submitted his written argument wherein he has reiterated the facts mentioned in his compliant. The Opposite Parties did not submit their written argument. The Complainant prayed at the time of oral argument that his written argument be treated as his oral argument. We perused all the papers submitted by both the parties and our findings are as follows.
16) The Complainant is the resident of Mumbai. The Opposite Parties are from Coimbatore i.e. outside the territorial jurisdiction of this Forum. The society with which the Complainant had transacted (Dhyanprastha Foundation) is also from Coimbatore (out of Maharashtra). The averment in para 4 of the complaint, does not disclose that the transaction took place in Mumbai or particularly within the territorial jurisdiction of this Forum. Even the Complainant does not reside in the jurisdiction of this Forum (He resides at:B-14, Akshaya, Chheda Nagar, Mumbai – 400 089). Para 4 of the complaint states as below -
“On/or about July-Aug., 2003 the Complainant had forwarded his demand draft 334618, dtd.05/07/03 for the sum of Rs.75,000/- as token amount as and by way earnest money deposit in respect of aforesaid two tenements. The Complainant thereafter forwarded his D.D. No.272453 drawn on HSBC Bank towards the part payments for purchase of the said two tenements, thus making a total payment of Rs.5,75,000/-. The Complainant craves leaves leave to refer to and rely upon the details of the said payment, when produced.” Thus, these contends does not disclose that cause of action or part of cause of action has arisen in the territorial jurisdiction of this Forum.
17) The Complainant has not submitted any documentary proof to show that he forwarded amount of Rs.5,75,000/- from Mumbai and specifically from the jurisdiction of this Forum. He has also not submitted any document to show that any transaction, any part of the transaction was done in the jurisdiction of this Forum. On the other hand, the Opposite Parties in their reply specifically denied the jurisdiction of this Forum and stated that “they are the residents of Coimbatore. The booking amounts were paid only at Coimbatore. The immovable property in respect of which the transaction was done, is situated at Coimbatore only. The society (Dhyanprastha Foundation) is in Coimbatore. Therefore, no part of the cause of action arose in Mumbai, within the territorial jurisdiction of this Forum. Thus, Hon’ble Forum has no jurisdiction to decide this dispute
In view of the facts and circumstances and in our considered opinion the cause of action has not arisen within the territorial jurisdiction of this Forum. Therefore, we pass the following order -
O R D E R
i. Complaint No.151/2004 is hereby dismissed with no order as to cost.
ii Certified copies of this order be furnished to the parties.
