Tamil Nadu

StateCommission

A/271/2018

The Managing Director, M/s. Strawberry Housing Projects (P) Ltd, - Complainant(s)

Versus

Mr. G. Mathivanan, - Opp.Party(s)

M/s. R. Parthasarathy

24 Mar 2023

ORDER

 IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble THIRU  JUSTICE R. SUBBIAH  :     PRESIDENT

                 THIRU R   VENKATESAPERUMAL         :      MEMBER

 

F.A. No. 271 of 2018

(Against the order passed in C.C. No.89 of 2015 dated 23.10.2018 on the file of the D.C.D.R.F., Chennai (North).

 

Friday, 24^th day of March 2023

 

The Managing Director

M/s.Strawberry Housing Projects

        (P) Limited

F-20, 2^nd Main Road

Anna Nagar

Chennai – 600 102                                  .. Appellant/Opposite party

 

 

- Vs –

 

G. Mathivanan

No.320/16, Aristo Apartment

III Floor, M.T.H Road

Villivakkam

Chennai – 600 049.                                  .. Respondent/Complainant

 

 

 Counsel for the Appellant /Opposite party   : M/s.R. Parthasarathy

 

 Counsel for the Respondent/Complainant    : M/s.A. Palaniappan

                                               

This appeal came before us for final hearing on 22.12.2022, and on hearing the arguments of the counsel for the Appellant and counsel for the Respondent and on perusing the material records, this Commission made the following :-

O R D E R

R.SUBBIAH J., PRESIDENT

                This appeal has been filed under Section 15 of the Consumer Protection Act, 1986 as against the order dated 23.10.2018 passed by the District Consumer Disputes Redressal Forum, Chennai (North) in C.C. No.89 of 2015, allowing the complaint filed by the respondent herein, in part. 

 

                2.  The Appellant herein is the Opposite Party and the Respondent is the Complainant.  For the sake of convenience, the parties shall be referred as per their ranking before the District Forum.

 

        3.  The case of the complainant before the District Forum is that on the instance of the opposite party, the complainant approached the opposite party on 20.09.2013 to purchase a flat by availing home loan, in the project named SBR Lake View Project, located at No.6/11-B, Murugesan Nagar first street, Chennai Battai Road, Villivakkam, Chennai – 600 049.  Initially, on 25.09.2013, the complainant paid a token advance of Rs.1,00,000/- by cash to the builder and the opposite party also issued a receipt for the same.  The Marketing Executive of the opposite party also agreed and assured that all the requirements of the complainant would be considered and thereafter they would inform the total cost that has to be finalised before booking.  The Marketing Executive of the opposite party also obtained the complainant’s signature and address in an application form without filling the cost particulars and date.  When the complainant asked for a copy of the Application Form, the Marketing Executive assured that the copy would be sent to him by post after finalising the total cost of the flat.  At that time, the complainant informed the Builder and the Marketing Executive that the complainant would withdraw the booking if the complainant’s requirements/ specifications are not met with in respect of the total cost and amenities of the flat.  Thereafter, the complainant asked the Marketing Executive on several occasions personally and through phone as to what would be the cost of the construction, for which the Marketing Executive of the opposite party was repeatedly telling that he would discuss the requirement of the complainant with the Builder/ opposite party and that they were very busy.  In the meantime, the opposite party called the complainant to pay a sum of Rs.7,00,000/- as advance for finalising the total cost of the flat.  The complainant paid Rs.7,00,000/- by way of Cheque No.816104 dated 08.11.2013.  On receipt of the same, the opposite party issued a receipt to that effect.  Even after receiving the total amount of Rs.8,00,000/- from the complainant, the builder has not entered into the Construction Agreement.  But, the Builder called the complainant for negotiation once again.  The complainant was bargaining the total cost with respect to the total area, since the opposite party was charging the same cost for the built up area with the open terrace area, common area and other charges for amenities, in addition to the total cost of the flat.  The complainant was not satisfied with the attitude of the opposite party since the opposite party had neither finalised the total cost of the complainant’s flat nor provided any approved building plan.  Finally, on 22.11.2013 the complainant submitted a cancellation letter and asked for refund of Rs.8,00,000/- paid by him, expressing that he is not interested in buying the flat. But the opposite party was giving lame excuses without returning the amount.  Finally, the complainant sent a letter on 26.02.2014, asking for refund of the total amount without any deduction.  Even then, the opposite party deliberately dragged the issue and kept the complainant’s money from 25.09.2013, without any valid reasons.  Hence, on 12.03.2014, the complainant lodged a police complaint in K-4 Anna Nagar Police Station.  Finally, the opposite party agreed to return Rs.7,50,000/-, after deducting Rs.50,000/- as cancellation charges.  The complainant questioned about the deduction of Rs.50,000/- and sought for refund of the same, stating that he has not booked the flat and only negotiation talks were going on from 25.09.2013.  Since the opposite party did not come forward to refund the said amount, alleging deficiency of service, he has filed the complaint for the following directions :-

  

1. To refund the balance advance amount of Rs.50,000/- with interest @ 12% from the date of payment till realisation;
2. To repay Rs.2250/- with interest @ 12% from 24.03.2014 till realisation;
3. To pay Rs.50,000/- as compensation towards non-execution of construction agreement;
4. To pay Rs.1,50,000/- as compensation towards deficiency of service;
5. To pay a sum of Rs.1,50,000/- towards compensation for mental agony for financial loss and physical strain to the complainant.
6. To pay Rs.5,000/- towards cost of the complaint.

        4.  The said complaint was resisted by the opposite party by taking a defence that the complainant had approached the opposite party on 20.09.2013 for booking a flat in the project named SBR Lake View Project at Villivakkam.  On receipt of token advance, the opposite party had explained the important details of the project such as total area of the flat, open terrace, common area, undivided share, number of rooms, bathrooms/toilets, doors, grill works, flooring, windows, extension, additions, other amenities, loan details and the total cost etc., to the complainant.  The complainant was fully satisfied with the specifications of the project and legal clearance was also given by the opposite party. Thereafter, he made a further payment of Rs.7,00,000/- on 08.11.2013, apart from Rs.1,00,000/- paid earlier on 25.09.2013.  Pursuant to the cancellation letter sent by the complainant on 22.11.2013, the opposite party had returned the entire amount, by way of Demand Draft dated 24.03.2014 drawn on Indian Overseas Bank for Rs.7,45,750/- [Booking Advance Rs.8,00,000/- less cancellation charges Rs.50,000/- and DD commission charges Rs.2250/-  =  Net amount of Rs.7,45,750/-].  The said amount was acknowledged by the complainant on 24.03.2014 in the covering letter of the opposite party.  In fact, in the Allotment Booking Application Form, Clause ‘E’ it has been observed as follows :-

        “ In the event of applicant withdrawing their application before entering into the builder’s agreement with the builder, a sum of Rs.50,000/- will be deducted from the advance already paid towards administrative and cancellation charges, which the applicant agrees is reasonable.”

Therefore, the complainant is bound to pay Rs.50,000/- towards cancellation charges, having entered into an Agreement with consent and knowledge of the terms and conditions. Hence, there is no deficiency of service on the part of the opposite party and sought for dismissal of the complaint.

 

        5.  In order to prove the case, on the side of the complainant, along with proof affidavit 10 documents were filed and the same were marked as Ex.A1 to A10.  On the side of the opposite parties, 3 documents have been filed and the same were marked as Ex.B1 and Ex.B3.  

 

        6.  The District Forum, after analyzing the entire evidence and records, had come to the conclusion that the opposite party has committed unfair trade practice by withholding a sum of Rs.50,000/-.  Hence, directed them to refund the sum of Rs.50,000/- being the balance advance amount and also to repay the sum of Rs.2250/- with 12% interest from 24.03.2014 till the date of realization and Rs.1,00,000/- as compensation towards mental agony and Rs.5000/- as cost.   Aggrieved over the same, the present appeal has been filed by the opposite party.

 

        7.   Learned counsel for the appellant/ opposite party submitted that there is no deficiency of service or unfair trade practice as alleged by the respondent/ complainant since the opposite party has refunded the entire amount paid by the Respondent/ complainant, when he had cancelled the booking of the flat.  It is the main submission of the counsel for the appellant/ opposite party that it is clearly stated in Clause (E) of the Application Form for allotment of flat that, in the event of applicant withdrawing his application before entering into the builder’s agreement with the builder, a sum of Rs.50,000/- will be deducted from the advance already paid towards administrative and cancellation charges, which the applicant agreed as reasonable.  Therefore, the respondent/complainant is contractually bound to pay Rs.50,000/- towards cancellation charges, having signed the Agreement with consent and knowledge of the terms and conditions. Therefore, the consumer complaint filed by the respondent/complainant alleging that the opposite party had committed deficiency of service by deducting Rs.50,000/- from the advance amount paid by the complainant, is not legally sustainable.  Thus, sought to set aside the order of the District Forum.

 

        8.  Per contra, counsel appearing for the respondent/ complainant submitted that the booking form signed by him did not contain any terms and conditions.  But, in order to show that there was a clause to the effect that in the event of cancellation of booking, there will be cancellation charges of Rs.50,000/-, the appellant/ opposite party had filed a model Application Form containing the said terms and conditions.  But the said application has not been signed by the respondent/complainant.  Therefore, the deduction of Rs.50,000/- would amount to unfair trade practice by the opposite party.

 

        9.  Keeping in mind the submissions made by the learned counsel for the appellant and the learned counsel for the respondent, we have carefully gone through the entire material available on record. 

 

        10.  It is an admitted case of the complainant that he booked a flat with the opposite party in the project SBR Lake View Project at Villivakkam and that he paid Rs.1,00,000/- as token advance to the Builder/opposite party on 25.09.2013, for which receipt has been issued by the opposite party.  The receipt has been marked as Ex.A1.  Thereafter, the complainant has paid another sum of Rs.7,00,000/- on 07.11.2013.  The said payment receipt has been marked as Ex.A2.  Thus in total, the complainant had paid a sum of Rs.8,00,000/- to the opposite party.  Though Rs.8,00,000/- had been paid by the complainant, Construction Agreement has not been entered into between the parties since the complainant was bargaining the total cost with regard to the total area.  At one point of time, since the complainant felt that the opposite party is unnecessarily dragging on the project, he had chosen to cancel the booking and sought to refund the amount paid by him.  But the opposite party had repaid only a sum of Rs.7,47,750/- deducting Rs.52,250/-.  According to the complainant, it is an unfair trade practice.  Whereas, the opposite party states that the deduction is only as per Clause-E in the Application for flat booking.  But, in Ex.B1, the application form signed by the complainant filed by the opposite party, there are no terms and conditions.  The opposite party had also submitted a model application form, in which, on the reverse side the terms and conditions are available.  But, this Ex.B2 is not signed by the complainant. When there are no terms and conditions available in Ex.B1, i.e., in the application form signed by the complainant, the opposite party has no right to withheld the amount of Rs.50,000/-.  Therefore, we do not find any infirmity in the order passed by the District Forum directing the opposite party to refund the amount deducted towards cancellation charges.  Similarly, the complainant would have certainly undergone mental agony and the sum of Rs.1,00,000/- awarded as compensation for mental agony, cannot be found fault with.  On the whole, we do not find any merit in the appeal and hence the same is liable to be dismissed. 

 

        11.  In the result, the Appeal is dismissed.  No order as to costs.

 

 

R   VENKATESAPERUMAL                                                                                                                R.SUBBIAH

         MEMBER                                                                                                                                       PRESIDENT

 

Index :  Yes/ No

AVR/SCDRC/Chennai/Orders/March/2023