Tamil Nadu

South Chennai

394/2010

V.Sornaganesh - Complainant(s)

Versus

JSR Real Estate,Proprietor - Opp.Party(s)

B.L.Lavanya

20 Aug 2015

ORDER

                                                                         Date of Filing :  01.11.2010

                                                                        Date of Order : 20.08.2015.

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

     2^nd 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

                            C.C.NO.394/2010

THURSDAY THIS 20^TH   DAY OF AUGUST 2015

 

1.  V. Sornaganesh,

2. V.Sithavedam,

S/o. Velayudham,

Both residing at No.48,

Kaliappa Pillai Street,

Tuticorin.                                              ..Complainant

 

                                                 ..Vs..

 

JSR Real Estate,

Rep. by its Proprietor W.Rajesh,

No.2, Kalyani Ponnapan Avenue,

Koothadi Nagar Annex,

Ramapuram,

Chennai 600 089.                                   .. Opposite party

 

For the Complainant             :  M/s. B.L. Lavanya       

 

For the Opposite party         :  M/s. Nageswaran & Narichania   

 

 

        This complaint is being filed by the complainant u/s 12 of the C.P. Act 1986 for a direction to the opposite party to execute the sale deed for two residential plots or to refund a sum of Rs.90,000/- together with interest and also to pay a sum of Rs.2,00,000/- as compensation for mental agony with cost of the proceedings to the complainant.      

ORDER

 

THIRU. B. RAMALINGAM PRESIDENT        

 

1.The case of the complainant is briefly as follows:-

 

The opposite party  is Real estate business man and introducing a scheme for purchase of residential  plots in the village Irungattukkottai near Chennai  by paying monthly installment of Rs.625/- p.m. for the total installment of  72 months.  The complainants 1 & 2 have accepted the proposal  published by the opposite party under Ex.A1 and also paid monthly installment of Rs.625/- for 72 months totaling Rs.45,000/- each in the year 2007 itself.   After remittance of entire sum as per scheme, they received a letter dated 22.2.2007 from the opposite party under the caption of Plot allotment intimation inviting the complainants.  On receipt of the letter the complainants immediately approached the opposite party on 9.3.2007 and requested him to allot plots and execute sale deed in their favour.   Though they were made to wait throughout the day in the opposite party office nothing constructive happened as the opposite party neither allotted any plots nor allowed the complainants to pick and choose plots of their choice.   The opposite party is refusing to register the plots under the scheme.   The attitude of the opposite party by receiving a sum of Rs.90,000/- as consideration under the pretext of registration of plots and committing breach by not acting upon on the face of it tantamount to deficiency of service.  As such the act of the opposite parties amounts to deficiency of service and unfair trade practice and the same has caused him great mental agony and hardship to the  complainant.  As such the complainants has sought  to execute the sale deed for two residential plots or to refund a sum of Rs.90,000/- together with interest and also to pay a sum of Rs.2,00,000/- as compensation for mental agony with cost of the proceedings to the complainant    Hence the complaint.     

2.      Written version of   opposite party  is  as follows:-

It denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.   The complainants voluntarily joined in the monthly installment scheme floated by the opposite party to purchase a plots in Rajeswari Nagar and the land is situated at Irungattukottai, Chennai  and they agreed to pay the EMI of Rs.625/- for 72 months and they further agreed to pay the balance substantial sale consideration at the end of monthly installments and get the sale deed registered.  Admittedly the complainants have paid the installments upto 22.2.2007 totaling Rs.45,000/- each, but they did not pay the installment amount regularly every month.  Further the complainants  had not showed their readiness to obtain the sale deed in their  favour.   After payment of the installment amounts, the complainants were due to the opposite party the differential amount as well as the registration charges, but he complainant did not payment same to the opposite party  to show their readiness and willingness to get the sale deed registered in their name.  While so, after obtaining approval for a layout containing 180 plots, namely Rajeswari Nagar from the authorities concerned, the opposite party had given notice dated 22.22007 to all its subscribers of the scheme for selection of plots, which is self explanatory, contains various conditions in allotment of plots,

including a condition of first come first serve basis.   Admittedly the complainants are not the original subscribers and they are only substitutes.  In response to the notice dated 22.2.2007 of the opposite party several subscribers came to the opposite party and had chosen plots and all the 180 plots were allotted to 180 subscribers on the basis of the first come first serve.  After completion of entire plots the opposite party informed the subscribers, who came later that they would be provided with plot in the subsequent layouts, which is pending for approval before the authorities concerned.   Having failed and neglected to pay the registration charges and balance of amount and also having failed to come forward to get the allotment of plots.   The opposite party submits that pending the above complaint, the counsel for the complainants have negotiated for amicable settlement of the dispute out of the court.   The terms of the settlement arrived at between them.  Accordingly the opposite party through his counsel handed over two demands drafts for a sum of Rs.45,000/- each and two cheques for Rs.25,000/- each.  However, when the cheque was presented by the complainants it got dishonoured by the mistake committed by the officials of the bank.   Hence there is no deficiency of service on the part of the opposite party and therefore the complaint is liable to be dismissed.    

3.   Complainant has filed his Proof affidavit and  Ex.A1 to Ex.A17 were marked on the side of the complainant.   The Opposite party have filed their proof affidavit and Ex.B1 to Ex.B13 were marked on the side of the opposite party.  

4.         The points that arise for consideration are as follows:-

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

 

2. To what relief the complainant is entitled to?

 

5. POINTS 1 & 2 :

        Perused the complaint filed by the complainant,  written version filed by the opposite party, proof affidavit of both parties  and documents Ex.A1 to Ex.A17 filed on the side of the complainant and the documents Ex.B1 to Ex.B13  filed on the side of the opposite party  and considered the both side arguments.     There is no dispute between the parties that the opposite party  is doing Real estate business and introduced a scheme for purchase of residential  plots in the village Irungattukkottai near Chennai  by paying monthly installment of Rs.625/- p.m. for the total installment of  72 months.  The complainants 1 & 2 have accepted the proposal  published by the opposite party under Ex.A1 and also paid monthly installment of Rs.625/- for 72 months totaling Rs.45,000/- each in the year 2007 itself.   However as per the scheme agreed by the opposite  party the complainants were not  allotted or registered the residential plots despite of the complainants’ demand and the notice sent to the opposite party.   In respect of the contention of the opposite party that the complainants were allotted for purchase of the plots not exclusively in Rajeswari Nagar but also adjustment plots mentioned in the scheme is not acceptable.  Since public notice Ex.A1 and pass book issued and maintained for the payment of EMIS by the complainants shows that the complainants were permitted to purchase the plots in the Rajeswari Nagar itself.  Further the contention made by the opposite party that  as per scheme the complainants have not come forward to purchase the plots in time but approach for the purchase of the plots belatedly.  Since as per the scheme on the basis of  first come and first serve the plots were 180 numbers in the Rajeswari Nagar  all plots have been already sold to other subscribers as such the allotment could not be made for the complainant in the Rajeswari Nagar is due to their belated approach of the complainants is also not acceptable.   Because as per the scheme the opposite party would have entertained the number of subscriber only to available 180 numbers of plots in the Rajeswari Nagar.   Contrary  to this the contention made by the opposite party that the plots sold to the subscriber on the basis of the first come and first served is not acceptable.  On the said aspect only the opposite party were not able to allot plots in the Rajeswari Nagar is not acceptable.  Therefore considering the evidence  on record on perusal of documents filed by both side it proves that the opposite party has not properly complied the promise made to the complainants in allotting the plots to them for purchase  as agreed in the said scheme.    As such the opposite party has committed deficiency of service is acceptable. 

6.     Further in the pending proceedings as per the terms of settlement arrived between the opposite party and the complainants the opposite party had agreed to refund a sum of  Rs.45,000/- paid by the complainants each and also to pay a sum of Rs.25,000/- towards interest and  cost to the complainants each, accordingly the opposite partly has given Demand draft for a sum of Rs.45,000/- each (“vide  D.D.No.004134 & No.004135 both dated 21.5.2011 drawn on ICICI Bank, Alwarthirunagar Branch, Chennai) in favour of the complainants and two cheques for Rs.25,000/- each (vide NO.569298 & No.569297 both dated 25.5.2011 drawn on Indian Overseas Bank, Cathedral Branch, Chennai) in favour of the complainants and the same were received by the complainant and the above  said demand draft for Rs.45,000/- each were encashed and realized by the complainants but the cheques for Rs.25,000/- each received by them  were returned without encashment when presented in the bank.   The memo prepared singed by the complainant’s counsel alone is also filed as Ex.B7.  The copy of the said demand draft  and cheques are filed as Ex.B6.   However the complainants in their affidavit mentioned about the return of the cheques issued by the opposite party to them under the settlement and also issued notice to the opposite party intimating the same.  Whereas the opposite party admitting the said return of the cheques as contended that the cheques have been returned  due to some technical problem with the bank.  However he is ready to pay the said amount by cash or demand draft on the return cheques by the complainants.  As such the opposite party had contended that the matter was already settled as such the complaint is to be dismissed.

7.     However considering the above said fact though the settlement  was arrived between the parties while pending proceedings in this complaint before this forum,  as per the above settlement the opposite party has paid Rs.45,000/- to the  each complainants by way of Demand draft and the same was realized and encashed by the complainants.  Whereas the additional amount said to have been paid towards cost and interest Rs.25,000/- by way of cheque to each complainants were returned without encashment.  Since the cheques given by the opposite party for the part amount for the settlement were returned without encashment as submitted by the counsel on record for the complainants that the said settlement not considered to be find finality, as such the settlement cannot be relied up as acceptable which caused mental agony and hardship to the complainants. 

 

8.     Since the said amount of Rs.45,000/- each paid by the complainants were retained and repaid by the opposite party in the month of May 2011 by demand drafts, the opposite party being the real estate business man would have been benefited  out the said amounts by retaining the same.  For the said period  February 2007 to May 2011 the opposite party is liable to pay interest at 18% p.a. for the said amount to the complainants.  Hence, we are of the considered view that  the opposite party is liable to pay a sum of Rs.34,425/- towards interest as just and reasonable compensation to the  each complainants  (Rs.34,425/ + 34,425 = Rs.68,850/) and also to pay a sum of Rs.5000/-   as litigation charges to the complainants and as such the points 1 & 2 are answered in favour of the complainant.

In the result the complaint is partly allowed.  The opposite party is directed to pay a sum of Rs.34425/- (Rupees Thirty four thousand four hundred and twenty five only) towards interest as compensation to   each complainants  (Rs.34,425/ + 34,425 = Rs.68,850/) and also to pay a sum of Rs.5000/- (Rupee Five thousand only)   as litigation charges to the complainants  within  six weeks  from the date of receipt of copy of this order , failing which the compensation amount of Rs.68850/- shall carry interest at the rate of 9% per annum from the date of order passed till the date of realization.

 Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this  20^th   day of August  2015.

 

MEMBER-I                                                                                                         PRESIDENT.

Complainant’s Side documents :

Ex.A1-                    - Copy of Hand bill circulated by the opposite party.

Ex.A2- 22.2.2007      - Copy of Communication addressed by the opposite party.

Ex.A3- 9.3.2007        - Copy of communication addressed by the 1^st complainant.

Ex.A4- 9.3.2007        - Copy of communication addressed by the 2^nd complainant.

Ex.A5- 9.3.2007        - Copy of communication addressed by the 2^nd complainant.

Ex.A6- 9.3.2007        - Copy of communication addressed by the opposite party.

Ex.A7- 6.10.2008      - Copy of Legal notice issued by the complainant’s.

Ex.A8- 16.10.2008     - Copy of reply notice issued by the opposite parties.

Ex.A9- 11.2.2009      - Copy of communication addressed by the 1^st complainant.

Ex.A10- 2.11.2009     - Copy of communication addressed by the 1^st complainant.

Ex.A11- 13.11.2009   - Copy of Reply issued by the opposite party

Ex.A12- 15.12.2009   - Copy of Communication addressed by the 1^st complainant.

Ex.A13- 23.12.2009   - Copy of reply issued by the opposite party.

Ex.A14- 5.4.2010      - Copy of communication addressed by the 1^st complainant.

Ex.A15- 8.4.2010      - Copy of reply issued by the opposite party.

Ex.A16- 14.6.2010     - Copy of communication addressed by the 1^st complainant.

E.A17-30.6.2010       - Copy of reply issued by the opposite party.

 

Opposite party’s side documents: -    

 

Ex.B1- 22.2.2007      - copy of notice issued by the opposite party.

 

Ex.B2- 9.3.2007        - Copy of letter of the opposite party.

Ex.B3- 14.10.2008     - Copy of reply notice.

Ex.B4- 23.12.2009     - Copy of letter issued by the opposite party.

Ex.B5- 30.6.2010      - Copy of reply issued by the opposite party.

Ex.B6- 21.5.2011      - Copy of Demand drafts & cheques

Ex.B7- 20.6.2011      - Copy of Memo of compromise.

Ex.B8- 5.7.2011        - Copy of notice issued by the complainant’s advocate.

Ex.B9- 19.7.2011      - Copy of reply notice.

Ex.B10-         -        - Acknowledgment cards.

Ex.B11- 20.10.2011   - Copy of demand draft.

Ex.B12- 21.10.2011   - Copy of notice.

Ex.B13-         -        - Acknowledgment card.

 

 

MEMBER-I                                                                                              PRESIDENT.