Nilakantan Maheswari filed a consumer case on 11 May 2023 against M/s. Aayushmaan Retirement Residency, Rep by its Managing Trustee Dr.R.Sundaravelu in the StateCommission Consumer Court. The case no is CC/168/2017 and the judgment uploaded on 11 Jul 2023.
Date of filing: 14.6.2017
IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
BEFORE Hon’ble Thiru Justice R. SUBBIAH PRESIDENT
Thiru R VENKATESAPERUMAL MEMBER
CC.NO.168/2017
DATED THIS THE 11th DAY OF MAY 2023
Nilakantan Maheswari
D/o. Late N. Nilakantan
No.25, Nim Road, Este Villa
Singapore – 807 553 ....Complainant
Vs
M/s. Aayushmaan Retirement Residency
Rep. by its Managing Trustee Dr.R.Sundaravelu
No.72, Kundrathur – Sriperumbudur Highway
Pudupedu Village, Chennai – 600 069 ....Opposite party
Counsel for complainant : M/s N. Varadha Rajan
Counsel for opposite party : M/s. Nagarathinam
This complaint coming before us for hearing finally on 11.1.2023 and on hearing the arguments of counsel appearing on bothsides and upon perusing the material records this Commission made the following order:
ORDER
Justice R. SUBBIAH, PRESIDENT
1. This complaint has been filed under Sec.17 of Consumer Protection Act 1986, against the opposite party claiming for refund of Rs.15,50,000/- towards the refundable caution deposit together with interest amount of Rs.1,39,500/- as on 20.5.2017 and to pay the future interest @24% p.a., on Rs.15,50,000/-, and to pay a sum of Rs.25,00,000/- towards compensation alongwith cost of Rs.60000/-.
2. The case of the complainant in brief is as follows:
The opposite parties are running Retirement home, under the name and style of Aayushmaan Retirement Residency, i.e, home for senior citizens. The complainant had admitted her mother Mrs.Chandra Nilakantan in the said home on 1.4.2015 by paying the refundable entrance and facilities caution deposit of Rs.15,50,000/- to the opposite parties under Receipt No.4007 dt.1.4.2015. As per the Memorandum of Understanding dt.1.4.2015 entered between the opposite parties and the complainant’s mother, the complainant has been duly appointed as nominee by her mother Mrs.Chandra Nilakantan. In fact it is only the complainant who had paid the entire caution deposit amount, for her mother vide NEFT transfer through her Indian Bank Singapore account, and the opposite party had also issued receipt for the said amount.
While so, her mother had vacated the opposite parties residency in the middle of June 2015 and her belongings were taken away on 7.7.2015 from her room at the residency and the keys were handed over to the opposite party’s office on 10.12.2015, after settlement of all dues and as such there are no outstanding dues whatsoever payable by the complainant’s mother. The opposite parties had also acknowledged the receipt of the keys through their representative Dr.S.Sujatha. In such a situation, the complainant’s mother died on 22.12.2015, and the said fact was duly communicated to the opposite parties. The complainant had already handed over the original Memorandum of Understanding dt.1.4.2015 to the opposite parties on 16.3.2016 which was confirmed by the opposite parties through their email dt.16.3.2016 and the Receipt issued by the opposite parties for original caution deposit dt.1.4.2015 was handed over on 25.1.2017 itself. The opposite party had also acknowledged the receipt of the receipts. As per the terms and conditions of the MOU, the complainant called upon the opposite party to refund the Caution Deposit amount of Rs.15,50,000/- But the opposite parties had not chosen to refund the caution deposit. In this regard, the complainant had sent final demand for refund dt.17.4.2017. Inspite of the receipt of the said letter, the opposite parties had not chosen to refund the caution deposit, on the other hand they have been adopting delaying tactics. The only requirement for the refund of the caution deposit by the opposite parties as per clause 2 a), 6 and 7 of MOU is that the complainant should surrender the original caution deposit receipt and he should be the nominee appointed by the resident i.e., the complainant’s mother. Eventhough after fulfilling the requirements, the opposite party had not come forward to refund the caution deposit, on the other hand, the opposite party is trying to play fraud by involving their bankers who have no connection whatsoever in the transaction between the complainant’s mother and the opposite party.
The complainant is the nominee, appointed by the complainant’s mother to receive the refund of the above caution deposit, in case of her demise, and the nomination would take effect only after the death of the resident. Therefore, the opposite party is liable to refund the same. Since they are not coming forward to refund the amount, the complainant had sent legal notice dt.5.5.2017. Since the opposite party evaded the legal notice, the complainant sent an email dt.12.5.2017 alongwith the copy of the legal notice and the copy of death certificate of her mother. For which the opposite party sent a vague reply on 12.5.2017, without referring anything about their refusal. Therefore, the complainant sent a rejoinder on 17.5.2017. Evenafter receipt of the same, the opposite party did not care to refund the caution deposit. Hence the complainant filed the present complaint, claiming for the relief as stated supra.
3. The version filed by the opposite party in brief as follows:
The documents filed in the complaint do not evidence any sort of negligence on the part of the opposite party. The complainant had not made out any case for deficiency in service on the part of the opposite party. The opposite party is a non-profit organization, being a part of private trust, run by one Dr.R.Sundaravelu & Family, from their own hard earned money, for the benefit of ailing elders who are aged above 60 years. This organization is self –supported, without any donations or any kind of outside financial support of whatsoever in nature. The opposite party has nothing to do with the complainant as she is not a party to the Memorandum of Understanding. The complainant claims to be the sole nominee of Mrs.Chandra Nilakantan, whereas the MOU signed and given to the opposite party, and which was submitted with the bank does not contain the name of the nominee. Therefore the opposite party had requested for death certificate, legal heirship certificate and an indemnity bond from other legal heirs of the resident viz. N.Aravind, N.Bhanumathi, and Chandra Nilakantan/ complainant herein. The opposite party had sent email dt.24.11.2015, to the complainant asking to comply with the legal formalities of the bank, who are the lenders for the opposite party’s residency project. It was also clearly communicated about the need to handover keys of the premises after taking away the belongings of the resident. Until then the complainant did not fulfil any legal requirements, including the basic requirements as per clause 7 of MOU dt.1.4.2015, entered into between the Resident/ mother of the complainant and the opposite party. The resident has declared to the opposite party that N.Aravind, G.Banumathi and N.Maheswari are their children. The opposite party had replied promptly to the communications of the complainant as is evident from the email dt.15.12.2015, which clearly shows that even in times of cyclone/ flood in Chennai, the opposite party had sent prompt replies to the complainant. The complainant surrendered the key of the premises occupied by the Resident/ Mrs. Chandra Nilakantan only on 10.12.2015. There are dues from the Resident towards the 5 months rental for the locked accommodation, which the complainant has not settled till this date. As per the terms of the MOU entered into between the Resident and the opposite party, the complainant failed to submit the original MOU till date. The original receipt for caution deposit was sent only after a period of nearly 1½ years on 20.1.2017, after the lock-in period of 18 months as specified under Annexure 1 to the MOU. The opposite party was approached by a person, claiming to be the brother of the complainant, claiming refund of the caution deposit as a legal heir of the resident, which was properly communicated to the complainant and the complainant had promptly replied to the same vide email dt.4.2.2016 asking the opposite party to refrain from entertaining any claims from any party including brother or sister. Meanwhile, the complainant also failed to comply with the legal requirements of the bank to produce the death certificate, legal heirship certificate and the indemnity bonds by the legal heirs. Having failed in promptly complying with the terms of the MOU and the legal formalities of the bank, as per the RBI guidelines, the complainant had come forward with the present case, which is bereft of merits. Till this date, the complainant had not come forward with the required documents. The complaint has been filed with an ulterior motive. There is no deficiency in service on the part of the opposite party, thus they prayed for dismissal of the complaint.
4. In order to prove the case on the side of both parties, proof affidavits are filed alongwith documents which are marked as Ex.A1 to A12 on the side of the complainant and Ex.B1 to B8 on the side of the opposite party.
5. When the matter was taken up for consideration, the learned counsel for the complainant submitted that as per terms of the MOU clauses No.2 a), 2 b), 2 c) and 7, the refund of entire caution deposit has to be made to the nominee alone, and in the instant case, her name and address was specifically mentioned as nominee in the MOU. As per MOU she should surrender the original MOU and the caution deposit receipt to the opposite party. The complainant had also complied with the said requirement of the opposite party. Inspite of the said compliance, the opposite party is trying to play fraud by involving their bankers. Thus they prayed for the refund of the caution deposit alongwith compensation.
6. Countering the same, the learned counsel for the opposite party submitted that in the admission form, it has been stated that the mother of the complainant has three children viz. N.Aravind, G.Banumathi and N.Maheswari. In fact the other two children viz. Aravind and Banumathi had approached the opposite party for refund of the caution deposit. When it was informed to the complainant, she replied to the opposite party not to entertain her brother and sister for refund of the deposit. Therefore, any resident, who deposit the security deposit into the bank directly on submission of necessary papers to the said bank, the security deposit would be refunded directly by the said bank by depositing the same into the accounts of the resident, after deducting the rental dues if any, calculating the date of the handing over of the keys. In this case, since there are more than one claimant, the bank insisted on Legal heir certificate and indemnity certificate from the other legal heirs against any future claims alongwith the original Memorandum of Understanding and Original Security Deposit Receipt as stipulated in clause 7 of the Memorandum of Understanding. But the complainant had never produced the original security deposit receipt. When the complainant had not complied with the formality of a nationalised bank, the complaint filed by the complainant is abuse of process of law. Therefore, there is no deficiency in service on their part, thus prayed for dismissal of the complaint.
7. Having considered the submissions, we find that the only submission of the complainant is that as per clause 7 of Memorandum of Understanding under Ex.A1, the claim amount has to be refunded to the claimant, who has been appointed as nominee in the Memorandum of Understanding entered between the opposite party and complainant. Further, when such claim shall be accompanied by the original of the Memorandum of Understanding in possession of the nominee and the original deposit receipt issued by the Management, the opposite party cannot refuse to refund the caution deposit amount. Furthermore, except the production of the original Memorandum of Understanding and the original Caution Deposit receipt, there is no other requirement that has been mentioned in the Memorandum of Understanding under Ex.A1. That apart according to the complainant, under clause 2 b), the caution deposit will be refunded to the latest nominee as per the records registered with the management. In the instant case, the name of the complainant alone has been mentioned as nominee. Therefore, the opposite party is duty bound to refund the amount, especially when the receipt stands in the name of the complainant.
8. Per contra, the opposite party would contend that in the admission form, except the name of the complainant, three other names were given as nominee of the resident. In fact they have also approached for refund of the caution deposit, which was also intimated to the complainant, for which the complainant replied on 4.2.2016 as per Ex.B4, intimating the opposite party not to entertain anyother claim. Therefore, the opposite party cannot take risk by paying the amount to the complainant.
9. Keeping the submissions in mind, we have carefully analysed the entire materials on record.
The main crux of the dispute is that the complainant is claiming the caution deposit on the ground that her name had been mentioned as nominee in the Memorandum of Understanding, and further the receipt for caution deposit also stands in the name of the complainant.
Whereas, the opposite party would contend that apart from the complainant, there are two other children who stand as the legal heirs for the deceased resident. Therefore, the payment cannot be made to the complainant unless she produces the legal heir certificate and indemnity bond and No objection certificate from other legal heirs.
10. Having considered the above circumstances, we are of the opinion that the complainant, as a nominee, is legally entitled to receive the amount. But it is the apprehension of the opposite party that, in future, there are possibilities for claiming the amount by the other legal heirs. In such a situation, the opposite party cannot be made to suffer. Therefore, claiming no objection from other legal heirs is justifiable.
But at the same time, it is also to be considered that the receipt for the payment of the caution deposit as seen under Ex.A2, stands in the name of the complainant. Moreover, as per the Memorandum of Understanding as per Ex.A1, the name and photograph of the complainant alone had been mentioned as nominee by the deceased Resident viz. Mrs.Chandra Nilakantan. Therefore, there is no justification is not refunding the amount, to the complainant. Likewise, though the opposite party would contend that the complainant had not produced the original Memorandum of Understanding, it is the assertive submission by the complainant that she had already handed over the original MOU to the opposite party.
Be that as it may. On considering the case, we are of the opinion that it would be appropriate to direct the opposite party to refund the caution deposit to the complainant, when the caution deposit receipt issued by the opposite party stands in the name of the complainant. Hence the opposite party is directed to refund the caution deposit amount of R.15,50,000/- to the complainant, on execution of the indemnity bond by the complainant, indemnifying the opposite party from any loss in future, in the event of any claim for caution deposit amount by anyother third party.
11. As far as the claim of compensation is concerned, since we cannot hold that the non-refund of the amount by the opposite party amounts to deficiency in service, we are not inclined to award any compensation.
12. In the result, the complaint is allowed in part, and the opposite party is directed to refund the caution deposit amount of Rs.15,50,000/- to the complainant alongwith accrued interest, on executing the indemnity bond by the complainant, indemnifying the opposite party from any loss in future, in the event of any claim for caution deposit amount by anyother third party. Considering the facts and circumstances of the case, parties are directed to bear their own costs.
R VENKATESAPERUMAL R SUBBIAH
MEMBER PRESIDENT
Exhibits filed on the side of complainant
A1 01.04.2015 Memorandum of Understanding
A2 “ Caution Deposit Receipt
A3 10.12.2015 Confirmation letter by OP
A4 12.01.2016 Death Certificate of Mrs.Chandra Nilakantan
A5 16.03.2016 Email by OP to the complainant
A6 20.01.2017 Letter from complainant to OP
A7 25.01.2017 Acknowledgement by the OP to complainant
A8 05.05.2017 The complainant’s advocate notice to OP
A9 Postal return cover
A10 12.05.2017 Email by complainant’s advocate to OP
A11 “ Reply by email by OP to complainant’s advocate
A12 18.05.2017 Rejoinder email by complainant’s advocate to OP
Exhibits filed on the side of Opposite party:
B1 01.04.2015 Memorandum of Understanding
B2 24.11.2015 Email to OP to complainant
B3 15.12.2015 Email from OP to complainant
B4 04.02.2016 Email from complainant asking not to entertain anyone
B5 21.02.2016 Note signed by complainant
B6 15.03.2016 Email from complainant
B7 18.03.2017 Email from OP to complainant
B8 12.05.2017Email from OP to complainant’s advocate
R VENKATESAPERUMAL R SUBBIAH
MEMBER PRESIDENT
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