Tamil Nadu

South Chennai

cc/29/2013

Mrs. Mangala - Complainant(s)

Versus

M/s. Alliance Projects - Opp.Party(s)

M/s. S. Indumathi Ravi

21 Oct 2021

ORDER

                                                                                                      Date of Complaint Filed    : 27.12.2012

                                                                Date of Reservation         : 13.10.2021

                                                                  Date of Order                  : 21.10.2021

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH)

 

Present:

 

                  Thiru. R.V.R. Deenadayalan, B.A., B.L.              : President

                 Thiru. T. Vinodh Kumar, B.A., B.L.                     : Member

 

CONSUMER COMPLAINT NO.29/2013

 

THURSDAY, THE 21^ST DAY OF OCTOBER 2021

                                 

Mrs. Mangala,

W/o. Mr. Karthikeya Sundaram,

614, Akash Ganga Apartments,

No.38, Flowers Road,

Kilpauk,

Chennai – 600 010.                                                      .. Complainant.                                                        

..Versus..

M/s. Alliance Projects,

Represented by its Manager,

No.556, Jeevan Anand Second Floor,

Tenampet,

Chennai – 600 018.                                                    ..  Opposite party.

******

Counsel for the complainant         : M/s. S. Indumathi Ravi

Counsel for the opposite party     : M/s. A. Joseph Dorairaj

 

        On perusal of records and after having heard the oral arguments of the opposite party side and having treated the written arguments of complainant as his oral arguments, we delivered the following

ORDER

Pronounced by the President Thiru. R.V.R. Deenadayalan, B.A., B.L.

       The complainant has filed this complaint under section 12 of the Consumer Protection Act, 1986 and prays to declare the conduct of opposite party  in cancelling the booking of two flats booked by the complainant at the project at the ALLIANCE ORCHID SPRINGS, to pay a sum of Rs.1,00,000/- being amount wrongfully forfeited by the opposite party together with interest at the rate of 18% p.a. from 01.04.2011 to till the date of payment and to pay a sum of Rs.15,00,000/- towards compensation for mental agony and hardship caused to the complainant with cost.

        The complainant submitted his Proof Affidavit and written argument.   On the side of the complainant, documents Ex.A1 to Ex.A19 are marked.   The opposite party has submitted his proof affidavit and written arguments and on the side of the opposite party documents Ex.B1 to Ex.B4 are marked.

1. Complaint in brief:-

The complainant booked two flats bearing Nos.1113 & 1213 on 01.04.2011 and 03.04.2011 respectively on payment of Rs.1,00,000/- each.  The total cost of both flats was Rs.1,17,72,200/-.  Subsequently, she paid Rs.22,00,000/- on 3 cheques dated:18.08.2011, 18.08.2011 & 21.09.2011.  Thus, totally she has paid Rs.24,00,000/- towards advance amount for the purchase of the above two flats.  On 28.09.2011, the opposite party sent a draft Agreement for Sale through e-mail.  In the draft Sale Agreement, the complainant had some clarifications and the same was clarified in the month of October 2011 by the opposite party.  Thereafter, the complainant called upon the opposite party to send a copy of Agreement for signature.   The complainant also sent an email dated:09.11.2011 pointing out that she has not received the Agreement for signature and called upon to furnish the status.  But to the shock of the complainant, she has received two letters dated:10.11.2011 cancelling the booking of the two flats made by the complainant and issued to 2 cheques for a sum of Rs.23,00,000/- after adjusting a sum of Rs.1,00,000/- towards cancellation charges for the two flats.  But the complainant returned the cheques and called upon to enter into necessary Agreement for the two flats.  Inspite of receipt of the letter, the opposite party refused to execute the agreement for sale and instead returned the cheques for Rs.23,00,000/-.  It is understood that due to the escalation in the selling price, the opposite party cancelled the booking of the complainant.   The act of the opposite party caused mental agony and hardship to the complainant.   Hence, this complaint is filed.

2. Written version of opposite party in brief:-

It is submitted that the complainant has booked 2 flats and paid an advance amount of Rs.24,00,000/-.  The opposite party has sent the draft of the Sale Agreement and Construction Agreement to the complainant through an e-mail on 28.09.2011 in which, the complainant had sought for clarifications on the said draft and the same was clarified by the opposite party and requested to come forward for signing up the Agreements in the 1^st week of October 2011.   But the complainant has not come forward as requested by the opposite party.   Thereby, the opposite party started  the cancellation process of complainant’s booking  on 07.11.2011 and informed the same to the complainant over phone on 08.11.2011.  After knowing well, the complainant had sent an e-mail stating that she has not received the Agreement for signing which shows the bad brain of the complainant and she was trying to be too smart.   This opposite party has cancelled the booking of the complainant and the same has been intimated to the complainant vide letter dated:10.11.2011 along with cheques for Rs.23,00,000/- after deducting the necessary cancellation charges and the said deduction is only due to the fault committed by the complainant.   It is the duty of the complainant to enter into the Agreement within 15 days from the date of booking.  The opposite party had continuously requested the complainant to come forward for entering into Agreement for which, the complainant did not turned up.  It is the denied that the booking was not cancelled due to escalation of price.  Hence, it is requested to dismiss the complaint.

3. The points for consideration are:-

1. Whether there is any deficiency in service on the part of the opposite party?
2. Whether the complainant is entitled to get reliefs as claimed in the complaint?
3. To what relief, the complaint is entitled?

4. POINT NO.1:-

There is no dispute between the complainant and opposite party in respect of booking the flats and payment made by the complainant and also, there is no dispute in the cancellation made by the opposite party and returned the advance amount which was paid by the complainant after deducting Rs.50,000/- each flat.   The booking form for two flats are Ex.A1 & Ex.A2/ Ex.B1 & Ex.B2.  The terms and conditions Nos.5 & 6 in the booking form read as follows:-

“5. I/We are unable to go ahead with the booking in this project and wish to cancel/shift this booking before entering into agreement then Rs.50,000/- will be deducted as cancellation charges and the balance will be  refunded.

6. I/We know that this application is tentative and shall only be finalized on your acceptance of the same and on execution / signing of Agreement for Sale within 15 days from the date of booking by making necessary payments towards the Agreement or else this booking shall be treated as cancelled at discretion of Alliance group”.

 On the strength of this conditions, the opposite party has cancelled the booking and also deducted a sum of Rs.50,000/- each to the flats which were booked by the complainant.  Now, the question before the Commission is whether the terms and conditions relied by the opposite party in the booking form is a mandatory one or not? On perusal of records and on admission facts, that the complainant booked two flats on 01.04.2011 and 03.04.2011 respectively.  15 days time from the date of booking falls on 16.04.2011 & 18.04.2011 respectively.  In both the days, the complainant had not executed / signed the Agreement for Sale.  However, the opposite party has received a sum of Rs.22,00,000/- upto 21.09.2011 on various dates.  Further, the opposite party has sent a draft Sale Agreement and Construction Agreement to the complainant on 28.09.2011 only.  Therefore, both parties are not strictly followed by the general terms and conditions laid down in the booking form.  Hence, we found the terms and conditions in the booking form is not a mandatory one.  

5.     On perusal of written version and proof affidavits of both, it would reveal that the complainant had sought for clarification of the draft of the Sale Agreement and Construction Agreement with the opposite party and the same was clarified after 28.09.2011 and the opposite party requested the complainant from the 1^st week of October 2011 to come forward for signing the Agreement for which, the complainant had turned deaf ears.  There is no evidence to prove that the opposite party requested the complainant to come forward for signing the Agreements during the 1^st week of October 2011.   Therefore, there is no truth in the above pleadings found in the written version of the opposite party.  As such, there is no proof that the opposite party had started the cancellation process of complainant’s booking on 07.11.2011 and the same was informed to the complainant on 08.11.2011.

6.     It is an admitted fact that the opposite party had sent the draft Sale Agreement through e-mail on 28.09.2011.  Thereafter, the complainant sought some clarifications and the same was clarified by the opposite party. On perusal of available records, it shows that the complainant sent an email on 09.11.2011 which have evinced from Ex.A10.  In the e-mail, the complainant has stated that the hard copy of Agreement for signing was not received from the opposite party and thereafter, no response from the opposite party’s staff concern. But immediately the next day, the cancellation letter was sent by the opposite party to the complainant.  The opposite party was waited upto the 1^st week of October 2011.  But he has not sent any letter of warning to cancel the booking prior to the cancellation of the booking of flats.  In general if any cancellation was made, it shall be duly informed in written to the customer /consumer with proper reasons for cancellation.   This is the principle of natural justice.   The above principle of natural justice was not followed by the opposite party and without any written notice, the opposite party unilaterally cancelled the booking of the complainant.  Therefore cancellation was not made by the complainant but the opposite party alone cancelled the booking for the reasons best known to him alone.  The act of cancellation of the complainant’s booking of the flat with prior notice amounts to deficiency in service on the part of the opposite party. 

The learned Counsel for the opposite party submitted a case law which was reported in:

I (2015) CPJ 365 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

Between

DLF SOUTHERN TOWNS PVT. LTD.

-Versus-

DIPU C. SEMINLAL

The fact of the case law is totally different from the case which is in our hand.   Therefore, the above case law will not be applicable to the opposite party.  Considering the above discussion, we found that the opposite party has committed deficiency in service on their part.  Accordingly, point No.1 is answered.

7.      POINT NOS.2 & 3:-

We have discussed and decided that the opposite party has committed deficiency in service on their part.  Hence, the complainant is entitled to get relief as against the opposite party.  On perusal of complaint, it is found that the 1^st prayer of the complainant reads as follows:-

1. “Declaring that the conduct of opposite party in cancelling the booking of two flats booked by the complainant at the project at the ALLIANCE ORCHID SPRINGS amounts to an unfair trade practice”.

This Commission has no jurisdiction to declare the conduct of the opposite party and the declaration relief can be granted only by a competent Civil Court. However, this Commission is having power to grant compensation to the complainant for the deficiency in service committed  by the opposite party and also for mental agony and hardship caused to the complainant along with cost.   Accordingly the complainant is entitled to get back her booking amount of Rs.50,000/- each flats bearing No.1113 & 1213 together with interest at the rate of 12% p.a. and also entitled a sum of Rs.2,00,000/- towards compensation for mental agony and hardship caused by the opposite party along with cost of Rs.20,000/-.

In the result, this complaint is allowed in part.  Accordingly, the opposite party is directed to pay each a sum of Rs.50,000/- (Rupees Fifty thousand only) towards the booking amount of Flat bearing No.1113 & 1213 by the complainant together with interest at the rate of 12% p.a. from 01.04.2011 and 03.04.2011 respectively till this date of order (total Rs.1,00,000/- with interest at 12%) and to pay a sum of Rs.2,00,000/- (Rupees Two lakhs only) towards compensation for mental agony and hardship caused to the complainant along with cost of Rs.20,000/- (Rupees Twenty thousand only).

The above amounts shall be payable by the opposite party within three months from the date of this order, failing which, the above accrued amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

      Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on this  the  21^st  day of October  2021.

 

 

 

T.VINODH KUMAR                                                   R.V.R.DEENADAYALAN                                                                                                           

       MEMBER                                                                       PRESIDENT

 

List of documents filed on the side of the complainant:

 

Ex.A1   01.04.2011      Copy of Booking Form issued by the opposite party

                                  to the complainant

Ex.A2   03.04.2011       Copy of Booking Form issued by the opposite party

                                  to the complainant

Ex.A3   05.04.2011      Copy of receipt issued by the opposite party to the

                                  complainant                                                                                                                                                                                                                                                                                                                                      

Ex.A4   05.04.2011      Copy of receipt issued by the opposite party to the

                                  complainant                                                                                                                                                                                                                                                                                                                                      

Ex.A5    17.08.2011     Copy of e-mail sent by the complainant to opposite 

                                  party  

Ex.A6    23.08.2011     Copy of receipt by the opposite party to the 

                                  complainant

Ex.A7     24.08.2011    Copy of receipt by the opposite party to the 

                                  complainant

Ex.A8     05.09.2011    Copy of allotment letter issued by the opposite party 

                                   to the complainant

Ex.A9    24.09.2011     Copy of receipt by the opposite party to the 

                                  complainant

Ex.A10  09.11.2011     Copy of e-mail sent by the complainant to opposite

                                  Party

Ex.A11  09.11.2011    Copy of cheque bearing No.000357 issued by the

                                 opposite party to complainant

Ex.A12  09.11.2011    Copy of cheque bearing No.000358 issued by the

                                 opposite party to complainant

Ex.A13  10.11.2011    Copy of letter regarding cancellation of booking issued

                                 by the opposite party to complainant

Ex.A14  10.11.2011    Copy of letter regarding cancellation of booking issued

                                 by the opposite party to complainant

Ex.A15  16.01.2012    Copy of letter sent by the complainant to opposite

                                 Party

Ex.A16  01.02.2012    Copy of letter issued  by the opposite party to

                                 Complainant

Ex.A17  14.05.2012    Copy of legal notice issued by the complainant

                                 through her Counsel

Ex.A18                       Copy of acknowledgement card to the above  

                                 Complaint

Ex.A19  05.06.2012    Copy of reply notice issued by the opposite party

                                 through their Counsel

* * * * * * * *

 

List of documents filed on the side of the opposite party:-

 

Ex.B1   01.04.2011    Copy of the Booking Form for Unit 1213

Ex.B2   03.04.2011    Copy of the Booking Form for Unit 1113

Ex.B3   09.11.2011    Copy of e-mail by the opposite party

Ex.B4   01.02.2012    Copy of the letter of the opposite party

 

 

T.VINODH KUMAR                                                 R.V.R.DEENADAYALAN                                                                                       

      MEMBER                                                                       PRESIDENT