Tamil Nadu

North Chennai

CC/73/2015

M/s.Santhakumari - Complainant(s)

Versus

HDL Promoters, rep by R.Nehru - Opp.Party(s)

P.Veeraraghavan

22 Dec 2017

ORDER

 

                                                            Complaint presented on:  22.04.2015

                                                                Order pronounced on:  22.12.2017

 

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

 

FRIDAY  THE 22^nd   DAY OF DECEMBER 2017

 

C.C.NO.73/2015

 

 

Mrs. Santhakumari,

W/o Mahendra Varman,

Plot No.1312, MTH Road, Villivakkam,

Chennai – 49.

                                                                                    ….. Complainant

 

..Vs..

HDL Promoters,

Rep. by  R.Nehru, the Proprietor,

No.B9, Prince Towers,

Purasawakkam High Road,

Opposite to Abirami Theatre,

Chennai – 10.

.....Opposite Party

Date of complaint                                 : 07.05.2015

Counsel for Complainant                      : M/s. P.Veeraraghavan, A.Ramalingam

Counsel for Opposite Party                      : Mr.T.Shyama Murthy  

 

 

 

 

 

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 a sum of Rs.92,000/- to the complainant with 24% per  annum from March 2014 and also to return the cheque issued for Rs.98,000/- and to pay a compensation with litigation expenses u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant booked two plot Nos.191 &192 through S.Karthikeyan in Om Balamurugan Nagar, Kilpakkam Village, Arakonam Taluk measuring 1200 sq ft. each, totally 2400 sq ft. for a valuable consideration of Rs.1,34,000/- from the opposite party. The complainant paid a token advance of Rs.10,000/- to each plot on 09.12.2013 and agreeing to pay monthly installments of Rs.4,000/- per month. The said Karthikeyan also booked plot No.232 in the same layout. The complainant paid monthly installments from 20.01.2014 to 25.09.2014 for nine months totally a sum of Rs.36,000/- + Rs.10,000/- as advance for each plot separately and the opposite party also had issued receipts for the receipt of the amount.

          2. On 25.10.2014 the complainant issued a cheque for Rs.98,000/- towards the balance consideration for the purchase of plot No.191 and the opposite party also issued receipt on the same day for receipt of cheque. However, the opposite party had not realized the cheque or made  any arrangements to register the plot No.191 in favour of the complainant and also not furnished the title documents. The complainant later came to know that the opposite party is not the owner and he is only the power of attorney. The opposite party issued reply notice dated 02.12.2014 wherein he had agreed the receipt of cheque. The opposite party further stated that the complainant is not willing to purchase the plot No.191 and hence he had sold that plot to third party.  The plot was sold to Mr.R.Selvam/ 3^rd party on 14.03.2014. Even after sale of plot to third the opposite party continues to receive the monthly installment till September 2014 is deficiency on his part.

          3. The plot No.191 is a corner plot which will fetch more money and therefore  the opposite party for his personal gain sold the plot. Hence the complainant through Mr.Karthikeyan sought refund of the amount and however the opposite party had not refunded the same is an unfair trade practice. Hence the complainant filed this complaint to direct the opposite party to refund a sum of Rs.92,000/- to the complainant with 24% per  annum from March 2014 and also to return the cheque issued for Rs.98,000/- and to pay a compensation of Rs.2,00,000/- for mental agony with cost of the complaint.

4. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

          It is true one land mediator S.Karthikeyan has booked the plots bearing Nos. 191 and 192 in Om Balamurugan Nagar, Kilpauk Village, Arakonam Taluk, Vellore District measuring 2400 sq.ft. (each plot is measuring 1200 sq.ft) and in this regard the said land mediator has paid a sum of Rs.92,000/- for two plots. The opposite party has not at all seen the complainant. One Mr.Karthikeyan, the land mediator approached the opposite party and booked the plots bearing Nos.191 & 192 and paid Rs.92,000/- (Rs.46,000/- for each plot) and obtained receipts for the said payment. The said Mr.Karthikeyan has intimated the opposite party that the complainant Mrs.Santhakumari does not want the plot No.191 and another plot may be allotted to her in the same area.  Hence the opposite party sold the said plot No.191 to third party.

          5. With regard to the payment of balance amount of Rs.98,000/- the complainant  issued a cheque  bearing Nos.716190 to the opposite party and it was signed by one Hemalatha. As the complainant has not signed the said cheque and the land mediator has not given any cheque drawn in his bank account. The opposite party does not present the cheque. With regard to plot No.191 as it was already sold to third party the opposite party offered to sell any one of the following plot given here under. i.e., plot Nos. 196  to 214, 238 to 257, and 276 to 293 he also offered to sell both plots bearing Nos.373, 374, 375 and 376 in the same layout to her and to select the plot from available area. He has never cheated the complainant. He has admitted the payment made by the land mediator. Under such circumstances, the opposite party has not acted any unfair trade practice while rendering service to the complainant and also not committed any deficiency in service and prays to dismiss the complaint with cost.

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 

          It is an admitted fact that the opposite party developed  Ex.A1 layout  at  Om Balamurugan Nagar, Kilpakkam Village, Arakonam Taluk   and the complainant booked two plot Nos.191 &192 through S.Karthikeyan in measuring 1200 sq ft. each totally 2400 sq ft. for a valuable  consideration of Rs.1,34,000/-. The said Karthikeyan also booked plot No.232 in the same layout. The complainant paid a token advance of Rs.10,000/- to each plot on 09.12.2013 as in Ex.A2  and agreeing to pay monthly installments of Rs.4,000/- per month. Ex.A3 is the installment receipt card issued by the opposite party to the complainant.  The complainant paid monthly installments from 20.01.2014 to 25.09.2014 for nine months totally a sum of Rs.36,000/- + Rs.10,000/- as advance for each plot separately and the opposite party also had issued Ex.A3 to Ex.A12 receipts for the receipt of the aforesaid amount. The complainant also issued Ex.A13 cheque dated 25.10.2014 for a sum of Rs.98,000/- to the opposite party.

          8. The complainant alleged deficiencies against the opposite party are that the sum of Rs.98,000/- was paid to the plot No.191 which was not encashed and further the request of the complainant to register the plot was also not acceded by the opposite party and further he had also sold the plot   No.191 to a third party and further after issuing Ex.A14 notice, the opposite party gave Ex.A15 reply admitting the plot No.191 sold to a third party, inspite of that the same was booked by the complainant is an unfair trade practice.

          9. The opposite party would reply that he never seen the complainant and only  through Mr.Karthikeyan, the  complainant had booked plots and however he admits the complainant paid through him a sum of Rs.46,000/- each to each plot and the complainant only through his mediator Mr.Karthikeyan informed that he does not want plot No.191 and he may be allotted another plot with same area and therefore he sold the same to a third person and therefore he had not committed any deficiency or unfair trade practice.

 

          10. It is not in dispute that the complainant booked plot Nos. 191 & 192 and he had also paid initial payment of Rs.10,000/-  for each plot and also paid a sum of Rs.4,000/- by way of installment for nine months and thus he had totally paid a sum of Rs.46,000/- for each plot. The case of the opposite party is that the complainant himself informed  through mediator that he does not want plot No.191 and may be allotted some other plot and hence  he had sold  the  said  plot to a third person. The complainant stated in his proof affidavit that he has not made any such request to sell the plot No.191. In such circumstances, it is upon the opposite party to prove that the mediator Karthikeyan informed him that the complainant does not want plot No.191. The said Karthikeyan was not examined on behalf of the opposite party to prove such fact. Therefore, the contention of the opposite party is that the complainant himself requested him to sell the plot No.191 is false and only to gain himself, the opposite party sold the plot to a third party. Further the opposite party stated in his Ex.A15 reply notice that the complainant can choose any other plot as the plot No.191 sold to third party. The opposite party himself allotted plot No.191 in Ex.A3 installment receipt card and thereafter sold the plot and requesting the complainant to choose any other plot establishes that the opposite party committed an unfair trade practice.

          11. The complainant gave Ex.A13 cheque for the value of Rs.98,000/- for the purchase of plot  No.191 and the opposite party  also admits the same. The opposite party has not enchashed the cheque for the reasons best known to him.  The Ex.A16 is the encumbrance certificate for plot No.191 and that reveals that the said plot sold to one Mr.R.Selvam on 14.03.2014 in document No.1660/2014. When the opposite party sold the flat to third party as early as 14.03.2014 and even therafter he had collected installments for 6 months till 25.09.2014 is unwarranted and because of that reason only he had not encashed the cheque. After selling the plot collecting installments from the complainant and also received the cheque for 98,000/- establishes the malfide intention of the opposite party to cheat the complainant.      

12. The learned counsel for the opposite party referred a judgment of the Supreme Court reported in (2014)14 Supreme Court cases 773(Ganeshlal Vs.Shyam) and contended that as per the judgment the opposite party has not committed any deficiency in service. The facts in that case is that the Appellant failed to handover the possession of the plot of land and to deliver possession, the respondent Shyam filed a complaint before the District Forum and the same was allowed and such order was also confirmed by the State Commission and against which the Appellant filed the appeal before the Supreme Court of India contending that the respondent can file only a claim for specific performance before the Civil Court. The case above is in respect of  handovering  the  plot. Whereas in the case in hand only in respect of refund of money paid to the opposite party for the purchase of the plot. When the opposite party during the payment of installments sold the plot to third party and also failed to refund the amount paid by the complainant even after demand made by him is deficiency on the part of the opposite party and therefore the above referred judgment of the Hon’ble Supreme Court of India is not applicable to the facts of the case in hand.

13. Therefore, the opposite party without any intimation sold the plot allotted to the complainant to a third party and even after such sale he continued to collect installments amount from the complainant proves that the opposite party committed unfair trade practice and thereby further  committed deficiency in service.

 

14. POINT NO:2

          The opposite party himself admits that the complainant paid a sum of Rs.92,000/- and therefore the complainant is entitled for the refund of the same from the opposite party. The opposite party sold the plot to a third party after allotting to the complainant is unfair trade practice. Therefore it would be appropriate to order that the complainant is entitled for refund of the money of Rs.92,000/- with 12% interest from the date of last payment i.e from 25.09.2014 to till the date of this order would meet ends of justice. The opposite party can be further ordered to return the unrealized  cheque dated 25.10.2014 for a sum of Rs.98,000/-. Due to the unfair trade practice and deficiency in service committed by the opposite party, the complainant is suffered with mental agony is accepted and for the same the opposite party can be directed to pay a sum of Rs.50,000/- towards compensation for mental agony, 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.92,000/- (Rupees  ninety two thousand  only) towards the advance payment with 12% interest from 25.09.2014 to till the date of this order  to the Complainant and also to pay  a sum of Rs. 50,000/- (Rupees fifty  thousand only) towards compensation for mental agony, besides a sum of Rs. 5,000/- (Rupees five thousand only)  towards litigation expenses. The opposite party is further ordered to return the cheque dated 25.10.2014 for a sum of Rs.98,000/- issued by complainant which is not realized.

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 December 2017.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated NIL                     Om.Balamurugan Nagar Layout Copy

Ex.A2 dated 09.12.2013                   Receipt for Advance of Rs.10,000/-

Ex.A3 dated NIL                     Monthly Instalment receipt card

Ex.A4 dated 20.01.2014                   Receipt for Rs.4,000/-

Ex.A5 dated 08.02.2014                   Receipt for Rs.4,000/-

Ex.A6 dated 26.03.2014                   Receipt for Rs.4,000/-

Ex.A7 dated 23.04.2014                   Receipt for Rs.4,000/-

Ex.A8 dated 26.05.2014                   Receipt for Rs.4,000/-

Ex.A9 dated 20.06.2014                   Receipt for Rs.4,000/-

Ex.A10 dated 15.07.2014                 Receipt for Rs.4,000/-

Ex.A11 dated 16.08.2014                 Receipt for Rs.4,000/-

Ex.A12 dated 25.09.2014                 Receipt for Rs.4,000/-

Ex.A13 dated 25.10.2014                 Receipt of cheque for Rs.98,000/-

Ex.A14 dated 18.11.2014                 Advocate Notice

Ex.A15 dated 02.12.2014                 Reply Notice

Ex.A16 dated 08.12.2014                 E.C.

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

 

                                         …… NIL …..

 

 

 

MEMBER – I                                                               PRESIDENT