Date of Filing : 25.03.2004
Date of Order : 24.03.2016.
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)
2nd 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.471/2004
THURSDAY THIS 24TH DAY OF MARCH 2016
Ms. Radha Narayanan,
Rep. by her Power of Attorney Agent,
Mr.S.Narayanan,
No.45, Majestic Park, Rajesh Avenue,
Saligramam,
Chennai 600 093. ..Complainant
..Vs..
1. M/s. Alacrity Housing Ltd.,
Rep. by its Managing Director,
At Hariprasath Builders,
New No.43, 1st Floor, IV Avenue,
Ashok Nagar,
Chennai 600 083.
2. M/s. Alacrity Housing Ltd.,
Rep. by its Project Co-oridnator,
Parties,
No.25, Thirumalai Road,
T.Nagar,
Chennai 600 017.
3. M/s. Land Marvel Homes,
Rep. by its Managing Partner,
No.5, 1st Cross Street,
Kasturba Nagar, Adyar,
Chennai 600 020. ..Opposite parties
For the Complainant : M/s. V.S. Chandrasekaran
For the Opposite parties 1 & 2 : M/s. M.Deivanandam & others
For the opposite party-3 : Mr. K. Kumaran.
Complaint under section 12 of the Consumer Protection Act 1986. The complaint is filed seeking direction against the opposite parties to refund a sum of Rs.9,40,3223/- paid as advance with interest and also to pay a sum of Rs.1,00,000/- towards mental agony and suffering and also to pay a sum of Rs.10,000/- as cost of the complaint to the complainant.
ORDER
THIRU. B. RAMALINGAM PRESIDENT
1.The case of the complainant is briefly as follows:-
The complainant submit that the opposite parties 1 and 2 are being the building promoters proposed to develop the project namely “Paramount Gardens” in Saligramam, Chennai constructing numerous flats and selling. The complainant in order to purchase a flat No.R-9 in 2nd floor for the total cost of Rs.15,81,820/- has paid the amounts on 19.8.2202 for a sum of Rs.20,000/- on 5.9.2002 for a sum of Rs.7,49,617/-, on 10.3.2003 for a sum of Rs.1,70,606/- - in all totaling Rs.9,40,223/- as advance payments to the opposite parties 1 and 2 and they have also given the allotment letter with necessary papers containing terms and conditions etc. thereon. However the said project was not successfully carried out by the opposite parties 1 and 2 due to financial crisis as such the opposite parties 1 and 2 have not taken any steps to get sanction and approval from the concerned authorities and also not commenced the construction of the said project. The failure to deliver the residential flat, according to the delivery schedule are all deficiency in service and unfair trade practice adopted by the opposite parties. Due to the non commence of the project, after investing a s um of Rs.9,40,223/- as advance he had suffered mental agony as well as monetary loss. As such the complainant has sought for refund sum of Rs.9,40,223/- with interest and also to pay a sum of Rs.1,00,000/- as compensation and Rs.10,000/- as cost of the complaint to the complainant. Hence the complaint.
Written Version of 1st and 2nd opposite parties are briefly as follows:
2. The opposite parties denies all the averments and allegation contained in the complaint except those that are specifically admitted herein. The 1st and 2nd opposite parties submit that the complainant enrolled the name by way of allotment letter in a project “Paramount Gardens” proposed to be developed in Saligramam. The opposite parties 1 & 2 admits that they entered an agreement with the complainant. During the agreement the opposite party had handed the document tilted “Terms and conditions of allotment of flats. Item No.2 of the said Terms and conditions of allotment of flats states “We will make every effort to conform to the project schedule given in this letter. We cannot give a guarantee for it, as some factors are beyond our control”. The opposite parties submit that when the complainant decided to withdraw from the project then the complainant is liable to forfeit the initial installment as per the terms and conditions of the allotment accepted by them. But contrary to the agreement the complainant did not withdraw from the project and made a complaint for refund of advance. When the complainant has the intention to withdraw from the project, it is totally non application of mind on the part of the complainant, approaching consumer forum for deficiency of service. Therefore this complaint is liable to be dismissed with cost.
Written Version of 3rd opposite party is briefly as follows:
3. The 3rd opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein. The 3rd opposite party has been impleaded only after two years from the date of tripartite agreement dated 14.2.2005 entered into among the original land owners namely M/s. Paramount Garden Private Limited. M/s. Alacity Housing Limited and the 3rd opposite party herein and as such the above claim against the 3rd opposite party is barred by limitation and as such the above complaint is liable to be dismissed as against the 3rd opposite party. The opposite party never taken over the other liabilities or breaches committed by the 1st and 2nd opposite party prior to the date of taking over of the developmental rights over the subject property as such the above complaint is liable to be dismissed on this ground also. The 3rd opposite party is not a party to the said proceedings and the allegations are made only against the 1st and 2nd opposite party and as such the opposite party has nothing to submit. The 3rd opposite party is not liable to any compensation or refund as claimed in the above complaint. Therefore this complaint is liable to be dismissed.
4. Complainant has filed his Proof affidavit and Ex.A1 to Ex.A16 were marked on the side of the complainant. Proof affidavit of Opposite parties are filed and the documents Ex.B1 to Ex.B13 were marked on the side of the opposite parties.
5. The points that arise for consideration are as follows:- .
1. Whether the opposite parties have committed deficiency of service?
2. Whether the 3rd opposite party is liable to pay refund of amount and compensation to the complainant?
3. Whether the complainant is entitled for relief sought for against the opp. parties and if so to what extent?
6. POINTS 1 to 3 :
Perused the complaint filed by the complainant and the written version filed by the opposite parties proof affidavits filed by both parties and the documents Ex.A1 to A16 filed on the side of complainant and Ex.B1 to B13 filed on the side of 3rd opposite party.
7. There is no dispute between the parties that the opposite parties 1 and 2 are being the building promoters proposed to develop the project namely “Paramount Gardens” in Saligramam, constructing numerous flats and selling. The complainant in order to purchase a flat No R-9 in 2nd floor with built up area 101.543 sq.mts (10939 feet) corresponding undivided share 0.30930% of title to the land for the cost of Rs. 15,81,820/- paid the amounts on 19.08.2002 Rs.20,000/-, on 05.09.2002 Rs.7,49,617/-, on 10.03.2003 Rs.1,70,606/- in all totaling to Rs.9,40,223/- as per receipts Ex.A6, A7 and A10 as advance payments to the opposite parties 1 and 2 and they have also given the allotment letter Ex.A8 with necessary papers contains terms and conditions, guide line for payment of installments, tenanting cost for installments information and standard features of the flats at Paramount Garden as thereon Ex.A9. However the said project was not successfully carried out by the opposite parties 1 and 2 due to financial crisis as such the opposite parties 1 and 2 have not taken any steps to get sanction and approval from the concerned authorities and also the commenced the construction of the said project. The correspondence between the opposite parties and the complainant Ex.A11, Ex.A12, Ex.A13 and Ex.A15 were also reveals that there were other reasons for non commencement of the construction work by the opposite parties. Further the complainant has filed this complaint seeking the refund of the advance paid with interest on 25.03.2004.
8. Pending the said complaint, the opposite parties 1 and 2 company due to financial crisis, dropped out to carry out the project and have entered joint venture agreement and take over agreement on 14.02.2005 with 3rd opposite party and the land owner Paramount Groups Private Limited as a tri-party agreements i.e. Ex.B1 and Ex.B2. Further the document Ex.B3 to Ex.B13 filed on the side of 3rd opposite party also proves that there were some dispute between the 3rd opposite party and the land owner the Paramount Groups Private Limited arise out of the said agreement under the arbitration proceedings before the Hon’ble High Court, Madras.
9. However as far as complaint mentioned payment made by the complainant to the opposite parties 1 and 2 for the purchase of flat is not disputed and the said proposed project of constructions of flat was dropped out by the opposite parties 1 and 2 due to financial crisis and the said project was taken over by the 3rd opposite party as per the Ex.B1 and B2, the tri-party agreement and even as per the above said take over agreement the project was not commenced or proceeded further due to litigation between the party to the agreement.
10. At the instance of opposite parties 1 and 2 the 3rd opposite party was impleaded in this complaint on the contention that as per the takeover agreement, the said project was taken over by the 3rd opposite party as such with all assets and liabilities were taken over by the 3rd opposite party from opposite parties 1 and 2 as such the 3rd opposite party alone was liable to pay the claim made by the complainant. Whereas the 3rd opposite party has raised objections stating that the complainant has not raised any allegations or made any averments in the complaint against this opposite party and further there is no privity of contract between the complainant and the 3rd opposite party, as such the 3rd opposite party is not liable to pay any claim made by the complainant in the complaint.
11. However considering the facts and circumstances of the case, complainant with intention to purchase the property i.e a flat, mentioned in the complaint has paid an advance amount of Rs.9,40,223/- to the opposite parties 1 and 2. The said proposed project promoted by the opposite parties 1 and 2 is also binds the land owner the Paramount Groups Private Limited, as per the said scheme and the proposed purchase of the flat by the complainant is not only the exclusive constructed flat but including UDS land attached with that flat and the allotment said to have issued by the opposite parties 1 and 2 is also including as a representative of the land owner also. Further due to financial crises the opposite parties 1 and 2 and the land owner Paramount Groups Private Limited and the 3rd opposite party have entered into the tri-party agreement dated.5.9.2002 Further from the contention made by the opposite parties 1 and 2 before this forum it appears as per the said tri-party agreement to take over the project was acted upon and adjacent land from 3rd parties was also purchased by 3rd opposite party for the purpose of extension of said project and some bank liabilities were also made settled. Further even on the terms and conditions found in the tri-party agreement Ex.B1 and Ex.B2 it clearly reveals that the 3rd opposite party have taken responsibility of liabilities for customers of the said project i.e the proposed purchasers of the flats. It is also pertinent to mention that the 3rd opposite party has negotiated with the some of the customers/ proposed flat purchasers and have settled their claim. Considering these facts, as contended by the opposite parties 1 & 2, the 3rd opposite party is also liable to have negotiation and settle claims of the customers i.e proposed flat purchasers including complainant, though there was a dispute pending under the arbitration proceedings between the 3rd opposite party and the land owner the Paramount Groups Pvt. Ltd., is acceptable. Further considering the above facts and circumstances of the case, the contention made by the 3rd opposite party that there is no averments and allegation in the complaint, and there was no privity of contract between the 3rd opposite party and complainant and as such the 3rd opposite party is not liable for the claim made in the complainant is not acceptable, considering the above said subsequent changing circumstances of the case and after filing of this complaint by the complainant.
12. Therefore as contended by the complainant, since the proposed project of the construction of flats was dropped and pending non commencement till this date, the advance amount of a sum of Rs.9,40,223/- paid by the complainant is liable to be refunded by the opposite parties 1 to 3 jointly and severally considering the facts and circumstances of the case. The complainant has claimed interest @ 18% p.a. for the said amount from the date of allotment which is justifiable when considering the facts and circumstances of the case, since the opposite parties being the business people, building promoters have enjoyed the benefit of the said amount by retaining the same without refunding to the complainant. Therefore we are of the considered view that the opposite parties 1 to 3 are jointly and severally liable to refund a sum of Rs.9,40,223/- with interest at the rate of 18% p.a. from the date of the last payment made i.e 10.03.2003 to till the date of payment. Though the complainant has claimed compensation of Rs.1,00,000/- in the complaint, we consider it is exorbitant and complainant is entitled to a sum of Rs.50,000/- as just and reasonable compensation for his mental agony and sufferings due to disappointment in purchasing of flat on the relevant period. Therefore the opposite parties 1 to 3 are also jointly and severally directed to pay a sum of Rs.50,000/- as compensation to the complainant and also to pay a sum of Rs.5000/- as litigation charges. Accordingly the points 1 to 3 are answered.
In the result, the complaint is partly allowed. The opposite parties 1 to 3 are jointly and severally directed to pay a sum of Rs.9,40,223/- (Rupees Nine lakhs forty thousand two hundred and twenty three only) with interest at the rate of 18% p.a. from 10.03.2003 to till the date of payment and also to pay a sum of Rs.50,000/- (Rupees Fifty thousand only) as compensation and also to pay a sum of Rs.5000/- (Rupees five thousand only) as litigation charges to the complainant within six weeks from the date of this order, failing which the above said compensation amount of Rs.50,000/-
will also carries interest at the rate of 6% p.a. from the date of this order to till the date of payment.
Dictated directly by the President to the Assistant, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 24th day of March 2016.
MEMBER-I MEMBER-II PRESIDENT.
Complainant’s side documents:
Ex.A1- 1.3.1996 - Copy of General power of Attorney executed by Ms.Radha
Narayanan in favour of her father Mr.S.Narayanan.
Ex.A2- July 2002 - Copy of the advertisement appeared in Arcot Road
Times” issue.
Ex.A3- 12.8.2202 - Copy of letter written by the complainant to the opposite
Parties requesting allotment of the flat R-9 in the 2nd floor.
Ex.A4- 14.8.2002 - Copy of Funding sources and Cash Flow chart issued by the
Opposite parties.
Ex.A5- 19.8.2002 - Copy of application form for allotment of Flat No.R9.
Ex.A6- 19.8.2002 - Copy of the receipt No.45033, confirming payment
of Rs.20,000/- by the complainant.
Ex.A7- 5.9.2002 - Copy of receipt NO.45201, confirming payment of
Rs.7,49,617/- by the complainant.
Ex.A8- 5.9.2002 - Copy of the allotment letter issued by the opposite parties
In favour of the complainant.
Ex.A9- 5.9.2002 - Copy of agreement with terms and conditions.
Ex.A10- 10.3.2003 - Copy of receipt No.45800 confirming the payment of
Rs.1,70,606/- by the complainant.
Ex.A11- 14.1.2003 - Copy of the letter issued by the opposite parties in favour of
the complainant.
Ex.A12- 15.5.2003 - Copy of the letter issued by the 2nd opposite party in favour
Of the complainant.
Ex.A13- 17.7.2003 - Copy of the letter issued by the 2nd opposite party in favour
Of the complainant.
Ex.A14- 4.10.2003 - Copy of the report appeared in the magazine about the
Financial instability of the opposite parties.
Ex.A15- 10.12.2003- Copy of the letter addressed to the complainant by the
Opposite parties.
Ex.A16- 12.3.2004 - Copy of the News item appeared in “Dina Malar” about the
Present status of the opposite parties.
Opposite parties’ Exhibits:-
Ex.B1- 14.2.2005 - Copy of Agreement Taken over.
Ex.B2- 14.2.2005 – Copy of Joint Venture Agreement.
Ex.B3- 14.6.2001 - Copy of Legal notice.
Ex.B4- 22.6.2001 - Copy of reply notice
Ex.B5- 29.12.2011 - Copy of letter sent by the 3rd opposite party to
M/s. Paramount Group Private Ltd.,
Ex.B6- 30.1.2012 - Copy of telegram sent by advocate to 3rd opposite party.
Ex.B7- 6.2.2012 - Copy of telegram sent by 3rd opposite party to the counsel
For M/s. Paramount Group Private Limited.
Ex.B8- 4.2.2012 - Copy of reply notice.
Ex.B9- 23.2.2012 - Copy of letter sent by Mr.N.C.Vijayaraghavan to the
3rd opposite party.
Ex.B10- 6.3.2012 - Copy of reply notice.
Ex.B11- 16.3.2012 - Copy of legal notice.
Ex.B12- 31.5.2012 - Copy of legal notice.
Ex.B13- - - Copy of petition filed in OP.No.636/2012.
MEMBER-I MEMBER-II PRESIDENT.
