Tamil Nadu

North Chennai

149/2014

M.Sivakumar,S/o.Muthuvelu, - Complainant(s)

Versus

Fomra Housings and Infrastructure Pvt Ltd, Represented by its Managing Director,Mr.Sharad Fomra, - Opp.Party(s)

R.Ganaesh Kanna-com

02 Nov 2017

ORDER

 

                                                            Complaint presented on:  16.07.2014

                                                                Order pronounced on:  02.11.2017

 

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

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

THURSDAY  THE 02^nd DAY OF NOVEMBER 2017

 

C.C.NO.149/2014

 

 

1.M.Sivakumar,

S/o.Muthuvelu,

No.114, IV Cross Street,

Chandran Nagar,

Chromepet,

Chennai – 600 044.

 

2.T.Vimala,

W/o.M.Sivakumar,

No.114, IV Cross Street,

Chandran Nagar,

Chromepet,

Chennai – 600 044.

                                                                                ….. Complainants

 

..Vs..

Fomra Housings and Infrastructure Pvt Ltd.,

Represented by its Managing Director,

Mr.Sharad Fomra,

No.18, AA Block, III Street,

Annanagar, Chennai – 600 040.

.....Opposite Party

Date of complaint                                 : 25.07.2014

Counsel for Complainants                    : R.Ganesh Kanna, P.Vimal Raj

Counsel for Opposite Party                      : AAV Partners

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to direct the opposite party to refund the advance of Rs.5,00,000/- along with 18% per annum from the date of receipt and also compensation for mental agony with cost of litigation expenses u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The opposite party is a Flat Promoter and Proposed to Develop a Project in the name Fomra’s Colours  Project  at Chettiar Agaram Village, Porur, Chennai – 77 comprised in an extent of  36 grounds to build 144 flats. The complainant paid an advance amount of Rs.5,00,000/- and he was issued with allotment letter dated 12.02.2012 allotting flat No.B-4, 1^st floor with a built up area 1001 sq.ft at the rate of 3850 sq.ft in block-1. He was orally informed to give UDS land 58 % at the time of allotment and also further informed that the project will be commencing in 2009 and shall be completed within 18 months from the date of commencement.

          2. Though the opposite party received advance amount and the project was not commenced and he did not come forward to execute sale agreement for the UDS land. Though the complainant telephonically and in person contacted the opposite party, he replied that he is still awaiting for approval from the government. The opposite party issued a letter dated 18.09.2012 to the complainant that necessary approval from the National High Way Authority received and awaiting further clearance from the Chennai Metropolitan Development Authority. Again the opposite party sent a letter dated 11.02.2013 that Bhoomi Pooja for the project has been fixed on 17.04.2013 and revising the sq.ft area as 1042. During December 2013, the opposite party informed that the project scrapped and  he had plan to replace the said project at the same venue with fresh venture comprising of two blocks 9 to 13 floors for housing 280 apartments. If   280 apartments were constructed the UDS land would be 28% against 58%.  Due to unfortunate turn the complainant wrote letter dated 10.01.2014 to withdraw from the project and requested to refund the advance amount. The opposite party revised his stand on the project   and he is awaiting CMD Approval to proceed with construction.  Thereafter the complainant issued legal notice and filed this complaint to direct the opposite party to refund the advance amount of Rs.5,00,000/- along with 18% per annum from the date of receipt and also compensation for mental agony with cost of litigation expenses.   

3. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

          The opposite party admits that the complainant paid a sum of Rs.5,00,000/- as booking advance. He had applied for approval from CMDA and also informed that the booking will be effective only on receipt of CMDA approval. In the allotment letter clearly mentioned that an area is indicative and not final. The UDS statement was not finalized since the CMDA approvals were in process. The complainant was also informed that in case of inordinate delay in the commencement of the project the entire money will be refunded to the customer.

          4. The opposite party sent a letter that he got approval from the National High Way Authority and waiting for the CMDA approval. Further the opposite party doing all earnest measures to start work at sight which is evidenced by  Bhoomi Pooja done by the opposite party. Since the opposite party’s site is qualified for high rise building due to recent government rules and regulations relating to FSI, the opposite party’s joint venture partner was very particular and then the opposite party should develop a land mark project befitting the locality. Hence the opposite party organization in the interest of joint venture partner and with the intention of providing a special category building for his esteemed customer. Decided to go into high rise building which was communicated to all the customers of the opposite party. Further in case, the complainant wished to exit for reasons relating to non-acceptance of high rise building, the full money received will be refunded.

          5. The opposite party is willing to make full refund but without interest vide letter 17.01.2014, even though a sum of Rs.50,000/-has to be dedicated towards cancellation charges as a special case the opposite party waived cancellation charge and agreed to refund the full advance amount. Further the complainant chosen to file this complaint without receiving the advance amount from the complainant. Hence the opposite party has not committed any deficiency in service and prays to dismiss the complaint with costs.

6. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what extent?

7. POINT NO :1 

          The opposite party is a Flat Promoter and Proposed to Develop a Project in the name Fomra’s Colours  Project  at Chettiar Agaram Village, Porur, Chennai – 77, comprised in an extent of  36 grounds to build 144 flats. The complainant paid an advance amount of Rs.5,00,000/- and he was issued with  Ex.A1 allotment letter dated 12.02.2012 allotting  the flat No.B-4, 1^st floor and  to construct a built up area  of 1001 sq.ft at the rate of Rs.4,000/- per  sq.ft in block-1.

          8. The opposite party issued Ex.A2 letter dated 18.09.2012 to the complainant stating that they have initiated process of submission of forms to the CMDA for approval. He had sent another letter Ex.A3 dated 11.02.2013 to the complainant that the Bhoomi Pooja will be performed on 17.04.2013. However, there was no symptom of starting of the project in the proposed place.  The opposite party initially agrees to construct 144 apartment. Later he scrapped that project and planned to convert into two blocks with 280 apartments and the same was intimated to the complainant. In view of change of project  to construct more flats than the agreed one, the complainant wrote Ex.A4 letter dated 10.01.2014 to the opposite party that because of change of project, he is not interested in continuing the project and withdrawn from the same. 

          9. The opposite party wrote Ex.A5 letter dated 17.01.2014 that he is waiving off the cancellation charges of Rs.50,000/- and requiring the complainant contact his office for getting his refund on any working day without interest. Thereafter the complainant sent Ex.A6 letter through civic action group and Ex.A7 legal notice to the complainant requiring him to refund the advance amount with 18% interest from the date of receipt. However, the said amount was not refunded to the complainant till filing of the complainant.

          10. The complainant alleged deficiency against the opposite party that the opposite party received the advance amount of Rs.5,00,000/- on 12.02.2012 and without taking any steps to develop the project as per Ex.A8 brochure and Ex.A1 allotment letter, unilaterally sent communication to the complainant that the project proposed was scrapped  and in that place a new project will come up and therefore by constructing more flats, the facilities will be provided to the complainant will be reduced due to more intending purchasers and therefore he had rightly withdrawn from the project and even after withdrawal the amount was not refunded to him is deficiency in service.

          11. The opposite party’s case is that he had agreed to refund the advance amount of Rs.5,00,000/- even after waiving the cancellation charges as per Ex.A1 allotment letter, the complainant has not come forward to receive the said amount and hence he has not committed any deficiency in service.

          12. It is not in dispute that the opposite party agreed to refund the advance amount of Rs.5,00,000/- to the complainant. The complainant demanded 18% interest from the date of payment to the opposite party i.e. on from 12.02.2012. The opposite party is not willing to pay the interest.  The opposite party initially intended to construct 144 flats and scrapping that project and intended to construct new project with two blocks of 280 apartments. Because of this change of circumstances only that complainant withdrew from the project. The opposite party at the time of accepting the advance he had planned to construct only 144 flats and subsequently changed to 280 flats leads to the conclusion that, it is nothing but an unfair trade practice.  Though the opposite party in communication agreed to refund the advance amount till the filing of the complaint he had not refunded the amount is deficiency on his part.  Since, the opposite party changed the agreed project and to construct new project and also failed to refund the amount proves that the opposite party has committed deficiency in service.

13. POINT NO:2

          The complainant seeks relief for the refund of the advance amount with 18% interest. The advance amount was paid on 12.02.2012. Due to change of project by the opposite party only forced the complainant to withdraw from the project. Therefore, the complainant cannot be faulted for withdrawing from the project of the opposite party. The opposite party without doing any development as agreed, he was enjoying the amount received from the complainant from the date of receipt on 12.02.2012. Further, the opposite party is doing commercial business. Therefore, the complainant seeks interest from the date of payment is reasonable. However, the claim of 18 % interest seems to be high. Hence we inclined to order the opposite party to pay 12% interest would be reasonable. Considering as above, it would be appropriate to direct the opposite party to refund the advance amount of Rs.5,00,000/- with 12% interest from the date of payment i.e 12.02.2012 till the date of this order.

          14. The opposite party had benefit of enjoying the advance amount more than 5 years and on the other hand the complainant was not having such a benefit. Therefore, in such circumstances the complainant suffered with mental agony and harassment is accepted. For the same it would be appropriate to direct the opposite party to pay a sum of Rs. 2,00,000/- as compensation would meet ends of justice, besides a sum of Rs.5,000/- towards litigation expenses.

In the result the Complaint is partly allowed. The Opposite Party is ordered to refund a sum of Rs.5,00,000/- (Rupees five lakhs   only) towards the advance amount to the Complainant with 12% interest from 12.02.2012 to  till the date of this order and also to pay  a sum of Rs. 2,00,000/- (Rupees two lakhs  only) towards compensation for mental agony, 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 02^nd  day of November 2017.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 12.02.2012                   Allotment Letter issued by the opposite party

Ex.A2 dated 18.09.2012                   Letter issued by the opposite party

Ex.A3 dated 11.02.2013                   Letter issued by the opposite party

Ex.A4 dated 10.01.2014                   Letter issued by the 1^st complainant

Ex.A5 dated 17.01.2014                   Letter issued by the opposite party

Ex.A6 dated 15.02.2014                   Letter dated issued by the Citizen Consumer and

                                                    Civic Action Group

 

Ex.A7 dated 21.05.2014                   Legal Notice issued to the opposite party with

                                                    Acknowledgement Card

 

Ex.A8 dated NIL                     Brochure of the Project proposed by the opposite

                                                    Party

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

                                      …… NIL …..

 

 

 

MEMBER – I                                                               PRESIDENT