Tamil Nadu

South Chennai

150/2010

M.Prakash Raj - Complainant(s)

Versus

Jain housing ,Vasudevan - Opp.Party(s)

R.Elango

19 Jan 2022

ORDER

                                                         Date of Complaint Filed: 31.03.2010                                                                                         

                                                                                                                                 Date of Reservation     : 08.12.2021

                                                                                                                                  Date of Order              : 19.01.2022

                                                                     

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

Present:                              Thiru. R.V.R. Deenadayalan, B.A., B.L.           : President

                                             Thiru. T. Vinodh Kumar, B.A., B.L.                  : Member

CONSUMER COMPLAINT No.150/2010

TUESDAY, THE 19^th DAY OF JANUARY 2022

 

M. Prakash Raja,

S/o G. Murugesan,

Ezhilagam

No.12/19, E.B Colony Extension,

Balasubramaniya Nagar,

Maharajapuram,

Villupuram – 605 602.                                                                                                                    .. Complainant                                            

..Versus..

 

Jain Housing represented by

Its authorized Signatory,

No.11, Somasundaram Street,

T.Nagar, Chennai – 600 017.                                                                                                           .. Opposite party

******

Counsel for the complainant        : M/s. R. Elango

Counsel for the opposite parties   : M/s K. Kumaran

        On perusal of records and after having heard the oral arguments of both sides and we delivered the following:

ORDER

Pronounced by the President Thiru. R.V.R. Deenadayalan, B.A.,B.L.

1.     The complainant has filed this complaint as against the opposite party under section 12 of the Consumer Protection Act, 1986 and prays to return the advance booked amount of Rs.8,76,890/- with interest at the rate of 12% from the date of complaint till the date of realisation for the flat and to pay a sum of Rs.4,00,000/- to the complainant  as damages for hardship and to return the service charges of Rs.2809/- which was paid for the loan disbursement to the bank and to pay the costs of this complaint.

2.     The complainant submitted his Proof Affidavit and written argument.  On the side of the complainant, documents Ex.A1 to Ex.A6 are marked.  The opposite party has submitted his version, proof affidavit and written arguments and on the side of the opposite party documents Ex.B1 is marked.

3.    The averments of the complaint in brief are as follows:-

                The complainant booked a flat at “ Inseli Park “ on 21.12.2007 with the opposite party for a sum of Rs.48,66,890/-. He has paid a sum of Rs.8,76,890/- towards advance amount and the balance of Rs.39,90,000/-  is in loan from ICICI Bank, Chennai under ADF Scheme i.e., Advance Disbursement Facility funds on 30.10.2007. The opposite party has to pay monthly instalments to the Bank i.e., Rs.39,168/- per month up to December 2009 for a period of 20 months.  Even after utilising the entire amount for their own convenience by the opposite party, but they have not shown any interest in construction of the flat. The opposite party shall delivered the  flat on 2009. Hence the complainant cancelled the booking of the flat on 22.12.2009 and demanded the advance payment of Rs.8,76,890/- and Rs.2809/- towards the  charges paid  to the bank for releasing the ADF Fund. Hence this complaint is filed.

 4.   Written version of the Opposite party in brief:-

            It is admitted that the complainant has booked a flat at “Inseli Park” it is  also admitted that the total consideration is Rs.48,66,890/- and the complainant has paid Rs.8,76,890/- and the Bank has disbursed Rs.39,90,000/-. The complainant was not in a position to continue with the flat booking, on account of his personal reasons such as his financial crisis, affordability factors, elder sister hospitalisation, parents medical expenditure etc. Further the complainant was not in a position to honour the repayment commitments to the bank, at a later point of time. Therefore he wanted to cancel the booking and  take back the entire money as advance, without any deductions or cancellation charges.

5.        As per ADF Scheme, cancellation / opting out from the purchase of flat is not at all permissible. Furthermore, it was also made clear to the complainant that in the event of the opposite party agreeing for the cancellation of flat, the same will be done after deduction of the EMIs paid by the opposite party to the bank as well as the regular cancellation charges and incidental expenses. By an Email dated 19.06.2008, the complainant had agreed for deduction of cancellation charges from the booking amount paid by him to the opposite party.  Unfortunately the complainant addressed a letter dated 23.02.2009 to the opposite party demanding refund of Rs.8,76,890/- being the booking advance originally paid by the complainant. A fitting reply dated 28.02.2009 was sent by the opposite party.

6.        Subsequently complainant expressed his desire of transfer of flat to the opposite party from the Project “Jains Inseli Park – to Jains nakshakra” the complainant had further informed that the new flat will be booked in the name of his younger sister Elilarasi Murugesan, but the complainant did not continue with the transfer also. Left with no other option, the complainant proceeded with the cancellation of the allotment and also entered in to necessary agreement with this opposite party, titled as “Cancellation of Promoter’s Agreement” on 29.12.2009.

7.        Under the said agreement, the complainant had confirmed the payment of Rs.7,73,014/- made by the opposite party so far, to ICICI Bank towards EMI. It is also recorded the cancellation request made by the complainant and also confirmed and authorised for the deduction of Rs.7,73,014/- by the opposite party, from and out of the sums so far paid by the complainant. It is also recorded that the opposite party had to refund the loan amount, which worked out to Rs.39,55,254/- to ICICI Bank directly. As such the complainant will not have further payment commitments to the bank. It is pertinent to point out that the complainant had relinquished all his rights in the booking and had also confirmed that there is no other sum that was due from the opposite party in any manner what so ever. Based on the above agreement, the opposite party paid the entire loan amount to ICICI Bank. Hence it is requested to dismiss the complaint.

8.      Points for Consideration:-

1. Whether there is any deficiency in service on the part of the opposite party?
2. Whether the complaint is entitled to get his reliefs as claimed in the complaint?
3. To what relief the complainant is entitled to?

9.        Point No.1

Ex.B1 is the cancellation of promoters agreement in between the parties concerned. On perusal of Ex.B1 it is found that the Allottee has approached the Promoter for cancellation of the above said allotment and requested the promoter to refund the amount paid by him.The Allottee has also agreed for the deduction of Rs.7,73,014/- out of the amount so far paid by him towards EMI instalments paid by the Promoter to ICICI Bank Ltd on behalf of the Allottee. As per condition clause 3 it is mentioned as that the promoter has agreed to make a sum of Rs.39,55,254/- directly to ICICI Bank Limited after deducting a sum of Rs.7,73,014/- towards EMI’s paid to ICICI Bank Limited and other incidental / cancellation charges. The amount has been in full and final settlement of all claims. However relating to the said undivided share of land, flat, car parking, amenities, facilities, deposits and all other claims of the Allottees towards the same and shall deemed to have been received by the Allottee. Further in clause 5 & 6 it is further mentioned as left that the Allottee’s confirmed on payment of the said amounts, all their rights, title, interest or manner whatsoever in the said undivided share of land, flat, car park, amenities, facilities, deposits and all other claims of the Allottees towards the same shall stand abandoned in favour of the promoter together with the rights to nominate any other person for purchase / acquisition of the same. The Allottee further confirms that on payment of the above said amount, there is no other amount is due from the promoter in any manner whatsoever.

10.     As per the documents submitted by the opposite party it is found he has addressed a letter to ICICI Bank Limited dated 22.12.2009 wherein it is mentioned as that Mr. Prakash Raja who had booked a apartment on Jains Inseli Park and also availed loan from ICICI Bank in the ADF had opted out of the said booking due to unforeseen circumstances and in acceptance of his cancellation we find enclosed herewith the payment of Rs.39,55,254/- wide cheque No.625938 drawn on Karur Vysya Bank Limited dated 18.12.2009 to ICICI Bank Limited as indicated in your foreclosure letter dated 16.12.2009. on the same day complainant has submitted a letter to ICICI Bank Limited confirming the payment made by the opposite party and request to hand over the original documents pertaining to flat No.G2 Block No.G floor 1.

11.     Therefore as per cancellation of promoters agreement opposite party has paid a sum of Rs.39,55,254/- to the ICICI Bank Limited. But the complainant suppressed the above cancellation of promoters agreement executed in favour of the opposite party. As per the agreement there is no other amount is due from the opposite party to the complainant. Further, complainant is estopped to claim advance amount as against the agreed agreement which is marked as Ex.B1. Therefore we found that there is no deficiency in service on the part of the opposite party. Accordingly point No.1 is answered.

12.      Point Nos 2 & 3:-

        We have discussed and decided that there is no deficiency in service on the part of the opposite party. Hence the complainant is not entitled to get any reliefs as claimed in the complaint. Accordingly, point Nos 2 & 3 are answered.

        In the result this complaint is dismissed. No costs.

      Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on this the 19^th  day of January  2022.

 

       T.VINODH KUMAR                                       R.V.R.DEENADAYALAN                                                                                     

                 MEMBER                                                         PRESIDENT

List of documents filed on the side of the complainant:

Ex.A1	15.10.2007	Receipt for payment of Rs.50,000/- issued by opposite party to complainant.
Ex.A2	21.10.2007	Receipt for payment of Rs.1,10,800/- issued by opposite party to the complainant.
Ex.A3	16.12.2007	Receipt for payment of Rs.2,00,000/- issued by opposite party to complainant.
Ex.A4	21.12.2007	Receipt for payment of Rs.3,69,233/- issued by the opposite party to complainant.
Ex.A5	04.04.2008	Receipt for payment of Rs.1,46,857/- issued by the opposite party to complainant.
Ex.A6	23.02.2009	Letter written by complainant to opposite party.

List of documents filed on the side of the opposite parties :-

Ex.B1

22.12.2009

Cancellation of Promoter’s Agreement entered into between the Opp. Party and the Complainant.

 

 T.VINODH KUMAR                                       R.V.R.DEENADAYALAN                                                                                     

                  MEMBER                                                       PRESIDENT