Tamil Nadu

South Chennai

481/2009

S.Bhalaje & another - Complainant(s)

Versus

Mr. Shabeel Khan & another - Opp.Party(s)

Kavitha Audikesavalu

17 Dec 2015

ORDER

                                                                        Date of Filing :   25.05.2009

                                                                        Date of Order :   17.12.2015.

 

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

                 DR. T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO.481/2009

             THURSDAY THIS  17^TH  DAY OF DECEMBER 2015     

 

1. S. Bhalaje,

A3, Visvams Venkatadri,

35/2, Soundarajan Street,

T.Nagar,

Chennai 600 017.

 

2. Meera Bhalaje,

A3, Visvams Venkatadri,

35/2, Soundarajan Street,

T.Nagar,

Chennai 600 017.                                          ..Complainants

                                      ..Vs..

1. Mr.Shabeel Khan,

Managing Director,

M/s. Shabeel Constructions Pvt. Ltd.,

New No.4 (Old No.65) First Street,

Kamaraj Avenue,

Adyar,

Chennai 600 020.

 

2. M/s. Shabeel Constructions Pvt. Ltd.,

New No.4, (Old No.65), First Street,

Kamaraj Avenue,

Adyar,

Chennai 600 020.                                              ..Opposite parties.  

 

 

For the Complainants               :   M/s. Kavitha Audikesavalu & other   

 

For the Opposite parties            :    M/s.S.Rajasekar  & others

 

          This complaint is being filed by the complainant u/s 12 of the C.P. Act 1986 for a direction to the opposite parties to refund a sum of Rs.5,00,000/- with interest and also to pay a sum of Rs.6,50,000/- as compensation  and to pay cost of the complaint to the complainant.

ORDER

 

THIRU. B. RAMALINGAM PRESIDENT

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

The 1^st  opposite party who is the builder cum promoter proposed to sale the complaint mentioned flat with undivided share of land to the complainant.  Having agreed by both of them have entered into an agreement for the sale of complaint mentioned flats with undivided share of land for the total cost of Rs.63,00,000/- as per agreement for sale and construction dated 6.6.2008.  As per the said agreement the advance amount of Rs.4,00,000/- was paid by the complainant on the date of sale agreement and remaining balance of the said total amount of purchase to be paid on or before 20.7.2008.    However the said stipulated time for payment of entire balance mentioned in the said agreement was mutually extended on 28.7.2008 by both the parties, and a sum of Rs.1,00,000/- was paid as additional amount on that day through Canara Bank cheque by the complainant to the opposite parties and the agreement was extended until 10^th September 2008. 

2.     Immediately after entering into the above said  agreement in order to arrange loan when they approached the nationalized bank with available documents the bank authorities have requested some further documents in respect of the title of the said property and the complainant asked for the said documents with the opposite parties, the opposite parties have not complied the request and not furnished the necessary documents called for.  As such the title of the property under agreement is not clear but defective.  Hence the opposite parties have committed deficiency of service and unfair trade practice which caused mental agony and hardship to the complainant.  As such the complainant sought for claims to return of the amount paid by the complainant with interest and also compensation.  Hence the complaint.      

Written version of  1^st and 2^nd  opposite parties are   as follows:-

3.     It denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.     The opposite parties submits that  after verifying the necessary document and ascertaining the title of the property only the complainant have entered into an agreement for sale and construction dated 6.6.2008,  as per the said agreement further payment agreed to be paid by the complainant have not been paid at their request only the said agreement was extended for further period.  Even then the complainant has not come forward to perform their part mentioned in the agreement.    The complainant being defaulter in making further payment with ulterior interest without any basis they raised doubt about the title of the property and asked for further document which are unnecessary on the reason for getting bank loan.   As per clause-13 of the said sale cum construction agreement since the complainant’s themselves have approached the contract the opposite parties is entitled to forfeit the payment made by the complainant, the same was informed by them in the reply notice given by the opposite parties.   Hence there is no deficiency of service on the part of the opposite parties.   As such the complaint filed by the complainant is to be dismissed, as not maintainable.

4.   Complainant has filed his Proof affidavit and  Ex.A1 to Ex.A11 were marked on the side of the complainant.   Opposite parties have filed his proof affidavit and Ex.B1 to Ex.B7 were filed on the side of the opposite parties. 

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

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

 

2. To what relief the complainant is entitled to?  

6.      POINTS 1 & 2 :

Perused the complaint  filed by the complainant, written version filed by the  opposite parties, proof affidavit filed by the complainant and the  opposite parties and  Ex.A1 to Ex.A11  filed on the side of the complainant and Ex.B1 to Ex.B7 filed on the side of the opposite parties and also considered the both side arguments.

7.     As per the case of both sides there is no dispute that the first opposite party is the builder cum promoter proposed to sale the complaint mentioned flat with undivided share of land to the complainant.  Having agreed by both of them have entered into agreement for the sale of complaint mentioned flats with undivided share of land for the total cost of Rs.63,00,000/- as per agreement for sale and construction dated 6.6.2008.  As per the said agreement advance amount of Rs.4,00,000/- was paid to the complainant on the date of sale agreement and remaining balance of the said total amount of purchase to be paid on or before 20.7.2008 (Clause-6 of the agreement.  However the said stipulated time for payment of entire balance mentioned in the said agreement was mutually extended on 28.7.2008 by both the parties making endorsement in Ex.A1 a sum of Rs.1,00,000/- was paid as additional amount on that day through Canara Bank cheque by the complainant to the opposite parties and the agreement was extended until 10^th September 2008. 

8.     Whereas the complainant filed this compliant raising grievance against the opposite parties /vendor as mentioned in the sale agreement Ex.A1 that for the purchase of the said flat mentioned in the agreement in order to arrange loan they approached the nationalized bank with available documents the bank authorities have requested sum further documents in respect of the title of the said property and the complainant asked for the said documents with the opposite parties, the opposite parties have not complied the request and not furnished the necessary documents called for.  As such the title of the property under agreement is not clear but defective.  The complainant raising allegation against the opposite parties that the opposite parties have committed deficiency of service and unfair trade practice by their act and claims to return of the amount paid by the complainant with interest and also compensation.  

9.     Whereas the opposite parties have resisted the said complaint by saying that after verifying the necessary document and ascertaining the title of the property only the complainant have entered into an agreement for sale and construction dated 6.6.2008,  as per the said agreement further payment agreed to be paid by the complainant have not been paid, at their request only the said agreement was extended for further period.  Even then the complainant has not come forward to perform their part mentioned in the agreement.    The complainant being defaulter in making further payment with ulterior interest without any basis they raised doubt about the title of the property and asked for further document which are unnecessary on the reason for getting bank loan.  Contrary to this the allegation made against the opposite parties are not valid.  As per clause-13 of the said sale cum construction agreement since the complainant’s themselves have approached the contract the opposite parties is entitled to forfeit the payment made by the complainant the same was informed by them in their reply notice given by the opposite parties.   As such the complaint filed by the complainant is to be dismissed, as not maintainable.

10.    Though the complainant have stated that they have approached the nationalized bank for loan for purchase of the said flat mentioned in the agreement and the bank authorities have asked further document in order to ascertain proper title of the property no proof of letter  from the bank authorities asking the complainant to obtain further document from the vendor in order to establish the proper title of the property has been filed by the complainant.   As contended by the opposite parties that the complainant have entered into agreement only after verifying all the necessary document and after ascertaining the prefect title of the property they entered into agreement for sale and construction with the opposite parties  is acceptable.   It is also pertinent to note that the complainant having agreed to pay the balance consideration of the proposed flat to the vendor on or before 20.7.2008 as mentioned in Clause.6 of the said agreement Ex.A1, on 28.7.2008 by paying only a sum of Rs.1,00,000/- as additional payment the said agreement was extended till 10^th September 2008 mutually and necessary endorsement also prove the same which is found on Ex.A1.  Even the complainant have not come forward to make the payment as agreed on 28.7.2008 to pay the entire payment on or before 10^th September 2008, the complainant have sent notice to the opposite parties dated 8.10.2008 seeking to furnish relevant document or to remit the advance amount of Rs.5,00,000/- and further sent a legal notice Ex.A10, dated 5.11.2008.  The said notices sent by the complainant to the opposite parties were replied by the opposite parties in Ex.A11.The complainant neither furnished the particulars of the nationalized bank approached for the loan nor produced any letter or communications from the said bank seeking the complainant to produce further document in order to ascertain proper title of the property. Therefore as contended by the opposite parties the complainant’s allegation that the proper document for the proof of the title for the vendor for the said property has not been produced by the opposite parties, as such the opposite parties have committed deficiency of service  is not acceptable.   On the other hand the contention of the opposite parties that the other purchasers of the flats in the same property have approached other banks and also obtained loan for the purchase of the same are all acceptable on the perusal of the document Ex.B7.   Therefore as contented by the opposite parties the complainant without any valid reason or on the fault of the opposite parties,  have themselves breached the contract for the reason known to them is acceptable.   However the opposite parties contention that on the basis of the terms and conditions mentioned in the sale cum construction agreement Ex.A1 the opposite parties are entitled to forfeit the advance amount of Rs.5,00,000/- paid by the complainant is not acceptable considering the facts and circumstances of the case.  

11.    On going through Ex.A1 i.e. agreement for sale and construction entered between the complainant and the opposite parties there is a clear mentioning that in Caluse-13 “ The Vendor will forfeit money received by him from the purchaser in the event of the  purchaser contravening any of the terms and conditions and or failing to pay the sums in the manner herein provided and the Vendor further reserves his right to assign the contract to any third party.  The Vendor also reserves the right to cancel the sale deed already executed for the undivided share in the land, after giving 15 days notice for construction.    Further in Clause-14 mentioned that “ The Purchaser doth hereby agree that this agreement is irrevocable except in the contingency mentioned in clause 13 supra.   Therefore as per the above said clause mentioned in the terms and conditions of the agreement when the breach of contract by the purchaser  is committed the amount paid by the purchaser can be forfeited by the vendor is acceptable.    However the said terms and conditions stipulated in the sale cum construction agreement appears to be not risk brokenly giving benefit on the eve of breach of contract by the vendor.   Therefore on the said terms and conditions the vendor the opposite parties herein claims that the complainant has breached contract by not making further payment as agreed by them in the agreement.  As such the amount paid by the purchaser i.e. Rs.4,00,000/- plus Rs.1,00,000/- totaling Rs.5,00,000/- is liable to be forfeited by the opposite parties are not acceptable.   As per the above terms and conditions if on the date of breach the complainant has paid a larger amount i.e. larger portion of the total consideration the opposite parties cannot be justifiable to forfeit the entire amount.  Therefore we are of the considered view that the amount of Rs.5,00,000/-  on the breach of contract is to be forfeited by the opposite parties as per agreement cannot be sustainable and justifiable according to the facts and circumstances of the case. 

12.    Further it is also to be mentioned at the time of entering the contract between the parties since there is no progress of construction by the vendor.  Further there is no specific provision for completion of construction and handing over the flats to the purchaser by mentioning a specific date.   Considering all the above facts and circumstances of the case even after the execution of the agreement between the parties there is no part performance of the contract by the vendor was started and done in further agreement on the date of breach of contract by the complainant.   Therefore we are of the considered view that on the basis of the terms and conditions mentioned in the agreement the opposite parties contention that he has forfeited the advance amount of Rs.5,00,000/ paid by the complainant is not acceptable and justifiable.   

 

13.    Therefore we are of the considered view that on the facts and circumstances of the case the opposite parties are jointly and severally directed to return the advance amount of Rs.5,00,000/- received from the complainant under the said agreement Ex.A1 after deducting a sum of Rs.10,000/- towards processing and other charges i.e. Rs.4,90,000/- (Rs.5,00,000/-  - Rs.10,000/- = Rs.4,90,000)  with interest at the rate of 10% p.a. from the date of complaint i.e. 25.5.2009 to till the date of payment to the complainant.  Considering the facts and circumstances of the case we are not inclined to award compensation sought for by the complainant against the opposite parties.   Further the parties have to bear their own cost of litigation charges and as such the points 1 & 2 are decided accordingly.

 

 In the result, the complaint is partly allowed.  The opposite parties are jointly and severally directed to pay a sum of  Rs.4,90,000/-

(Rupees Four lakhs and ninety thousand  only) to the complainant with interest at the rate of 10% p.a. from 25.5.2009 to till the date of payment within six weeks from the date of receipt of this order.    No cost.

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  17^th   day  of  December    2015.

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1- 4.9.2008  - Copy of Agreement for Sale.

Ex.A2- 4.9.2008  - Copy of Sale Deed.

Ex.A3-       -      - Copy of Bank Pass Book.

Ex.A4- 1.5.2008  - Copy of Lease Agreement.

Ex.A5- 23.9.2008 - Copy of Legal opinion.

Ex.A6- 6.6.2008  - Copy of Receipt for Rs.4,00,000/-

Ex.A7- 28.7.2008 - Copy of receipt for Rs.1,00,000/-

Ex.A8- 28.8.2008 - Copy of Cheque for HDFC

Ex.A9- 8.10.2008 - Copy of Notice.

Ex.A10-5.11.2008- Copy of Legal notice by the complainant.

Ex.A11-19.11.2008-Copyof Legal notice by opposite party.

Opposite parties’ Exhibits:- 

Ex.B1- 6.6.2008  - Copy of Agreement of sale and construction.

Ex.B2-       -     - Copy of document of title of property.

Ex.B3- 8.10.2008 - Copy of Letter from the first complainant.

Ex.B4- 5.11.2008 - Copy of legal notice sent by the complainant.

Ex.B5- 19.11.2008- Copy of reply notice.

Ex.B6- 29.5.2009 - Copy of agreement for sale and construction.

Ex.B7-       -      - Copy of List of details of bank finance availed by

                             Various flat owners in the Kamaraj Avenue Project.

 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.