Tamil Nadu

South Chennai

CC/106/2013

E.Chidambara Easwari, - Complainant(s)

Versus

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

V.R.Sankarakutralingam

06 Jul 2016

ORDER

   Date of Filing :   26.03.2013

                                                                      Date of Order :   06.07.2016

 

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.106/2013

WEDNESDAY THIS  6^TH   DAY OF JULY 2016

 

1.  Mrs. E.Chidambara Easwari,

W/o. Mr. A. Sankar,

 

2. Mrs. A.Shanmugasundar,

W/o. S.Alwarappan,

Both are residing at

No.76, Saraswathy Street,

Bharath Nagar,

Adambakkam,

Chennai – 88.                                                        .. Complainants

 

                                         ..Vs..

 

M/s. Alliance,

Rep. by its Manager,

No.556, Jeevan Anand Building,

Second Floor, Anna Salai,

Tenampet,

Chennai – 18.                                                     .. Opposite party    

 

 

For the Complainant               :   M/s. V.R.Sankarakutralalingam        

For the opposite party             :   M/s. A.Joseph Dorairaj.

 

 

Complaint under section 12 of the Consumer Protection Act 1986.  The complaint is filed seeking direction against the opposite party to pay a sum of Rs.13,42,200/- as compensation for the illegal cancellation of the allotment of the flat and Rs.1,00,000/- for hardship and mental agony and Rs.5,000/- as cost of the complaint.

ORDER

 

THIRU. B. RAMALINGAM PRESIDENT

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

 

 The complainants submit that the opposite party is the building promoter and the complainant has originally booked a flat No.804 Maple Block unit size of 890 sq. ft in 9^th floor west facing at the rate of Rs.3000/- per sq. ft on 19.04.2010 and paid Rs.1,00,000/- as booking advance and subsequently paid the agreement amount of Rs.6,00,000/- on 10.05.2010 to the opposite party.    Subsequently on the request of the opposite party the complainant has consulted  for revised allotment for the flat No.804 Gulmohar Block unit size of 1104 sq. ft Daisy-4 unit type in 9^th floor, west facing at the same rate of Rs.3000/- per sq. ft at later date.   The complainant further submit that though they had paid the  additional  agreement advance amount of Rs.1,00,000/- to the opposite party, even after receipt of the revised allotment the opposite party neither given the receipt of Rs.1,00,000/- for additional amount paid by him and necessary construction agreement was not effected despite of several demand made by the complainant.  But the opposite party has unilaterally cancelled the said booking of the flat in order to sell away the same to the new purchaser at the higher price and refunded a sum of Rs.7,70,000/- after deducting a sum of Rs.30,000/- without any reason and sent a letter of cancellation of booking allotment dated 27.07.2011.  Despite of several requests made by the complainant to the opposite party  but there is no response from the opposite party.   As such the act of the opposite party amounts to  deficiency of service which caused mental agony and hardship to the complainant.  As such the complainant has sought for a sum of Rs.13,42,200/- as compensation for the illegal cancellation of the allotment of the flat and Rs.1,00,000/- for hardship and mental agony and Rs.5,000/- as cost of the complaint.

Written Version of opposite party is  in briefly as follows:

2.     The opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.     The opposite party submit that after the initial deposit amount made by the complainants they have not paid any amount as per the mile stone as agreed upon as the complainants deliberately avoided the payments in favour of opposite party.   Further the complainants’ did not show any interest to make the further payment as per the letters forwarded by the opposite party calling upon the complainants’ to make the payment in favour of the opposite party.    The opposite party further submit that they have forwarded several emails to the complainants which were not responded by the complainants.    The above said attitude of the complainants  warranted the opposite party to cancel the complainants booking and deducted Rs.30,000/- as forfeiture amount as per the clause 4 and 5 of the allotment application signed by the complainants without any protest or demur.  Thus there is no deficiency in service on the part of the opposite party in canceling the booking made by the complainants when they had failed to make any payment as per the terms of the booking form.   The opposite party had acted as per the terms and conditions of the application and there is no deficiency in service or violation of any of the terms and conditions by the opposite party.    Further being a chronic defaulter in making the payment, the complainants’ have got no right for any claim and the complaint is liable to be dismissed.

3.   Complainants have filed their Proof affidavit and Ex.A1 to Ex.A7 were marked on the side of the complainant.   Proof affidavit of  Opposite party filed and Ex.B1 and Ex.B2  were marked on the side of the  opposite party.  

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

 

1.   Whether the opposite party has committed  deficiency of

 service  as alleged in the complaint?

 

2.   Whether the complainants are  entitled for the relief sought for

in the complaint?  If so to what extent ?

 

5.    POINTS 1 and 2 :

Perused the complaint filed by the complainant, written version filed by the opposite party, proof affidavit filed by the both sides and the document Ex.A1 to Ex.A7 filed on the side of the complainant, and  Ex.B1 and Ex.B2 filed on the side of the opposite party and considered both side arguments.

6.     There is no dispute between the parties that the opposite party is the building promoter and the complainant has originally booked a flat No.804 maple block unit size of 890 sq. ft in 9^th floor west facing at the rate of Rs.3000/- per sq. ft on 19.04.2010 and paid Rs.1,00,000/- as booking advance and subsequently paid the agreement amount of Rs.6,00,000/- on 10.05.2010 to the opposite party.   The document  Ex.A1 and Ex.A2 are proves the same.   Subsequently on the request of the opposite party the complainant has consented for revised allotment for the flat No.804 Gulmohar block unit size of 1104 sq. ft daisy 4 unit type in 9^th floor,  west facing at the same rate of Rs.3000/- per sq. ft at latter date.  The same is proved by document Ex.A3 and additional amount of Rs.1,00,000/- was also paid by the complainant to the opposite party, as per the receipt Ex.B1  dated 03.11.2010. 

7.     Whereas the complainant has raised grievance even after receipt of the revised allotment the opposite party neither given the receipt for Rs.1,00,000/- for additional amount paid by him and necessary construction agreement was not effected despite of several demands made by the complainant.  But the opposite party has unilaterally cancelled the said booking of the flat  in order to sell away the same to the new purchaser at the higher price and refunded a sum of Rs.7,70,000/- after deducting a sum of Rs.30,000/- without any reason and sent a letter of cancellation of booking allotment Ex.A5, dated 27.07.2011, which is unlawful and deficiency of service on the part of the opposite party, as such the complaint is filed by the complainant claiming  compensation of Rs.13,42,200/- towards the interest for the amount refunded and Rs.30,000/-  to be  refunded by the opposite party and also claims a sum of Rs.1,00,000/- towards mental agony and hardship.

8.     Whereas the opposite party has resisted the complaint by stating that though the opposite party has agreed for the revised allotment of the flat and paid additional fee of Rs.1,00,000/-  on 03.11.2010, subsequent to that the complainant has not come forward  to execute the agreement for construction and not taken steps further and not paid any further  amount  towards the allotment as per the terms and conditions of the allotment.  Therefore as per the terms and conditions of the booking allotment the opposite party has cancelled the booking and intimated the same by letter and also refunded the amount of Rs.7,70,000/- after deducting Rs.30,000/- as per the terms and conditions as such there is no illegality or any deficiency of service on the part of opposite party,  and contended that  the complaint filed by the complainant  is liable to be dismissed. 

9.     On perusal of the Ex.B2 and Ex.A4, the copies of the emails exchanged between the parties it reveals that as  mentioned in  the allotment letter Ex.A1 and Ex.A3  there is no subsequent necessary construction agreement have  been entered into by the parties.   Though it appears that the opposite party has sent the copy of the draft  agreement to the  complainant, no such copy of the draft agreement has been filed on the side of the opposite party.  Further it is also pertinent to mention that though the complainant has mentioned in his email sent to the opposite party that some of the queries are requested to be answered by the opposite party are not answered, but no particulars of such queries asked by the complainant to the opposite party are neither pleaded in the complaint nor mentioned as document.  Therefore we are of the considered view that the both the parties i.e complainant and the opposite party are responsible, since both of them are not taken any appropriate effect for the execution of the construction agreement.  Further the complainant also cannot be denied that he has not paid any further payment towards the revised allotment and there is no proof on the side of the opposite party that they have demanded further payment from the complainant.  In the said circumstances the cancellation of the booking by the opposite party by letter  Ex.A5 dated 27.11.2011 cannot be said to be proper, since,  there is no proof even for sending  show cause notice in this regard by the opposite party to the complainant.  Therefore we are of the considered view that the cancellation of the allotment for booking of the flat by the opposite party is unilateral in nature, as such, the opposite party is to liable to refund the entire amount of Rs.8,00,000/- with interest  from the date of revised booking / allotment i.e on 17.08.2010.  Contrary to this, the refund made by the opposite party deducting Rs.30,000/- and also without interest for the said amount is amounts to deficiency of service on the part of the opposite party. 

10.    Therefore we are of the considered view, considering the facts and circumstances as discussed above, the unilateral cancellation of revised booking allotment of the flat of the complainant by the opposite party is amount to deficiency of service, as such, the opposite party is liable to refund the said amount of Rs.8,00,000/- with interest at the rate of 18% p.a. from the date of revised allotment / booking i.e 17.08.2010.  Contrary to this, the  refund  of Rs.7,70,000/- made by the opposite party after deducting Rs.30,000/- is not proper.  Therefore we are of the considered view that the opposite party is liable to pay  a sum of Rs.1,27,050/- towards interest for Rs.7,70,000/- at  the rate of 18% p.a. from 17.08.2010  to till the date of payment i.e. 27.07.2011 and also to refund a sum of Rs.30,000/- with interest at the rate of 18% p.a. from 17.08.2010 to till the date of payment to the complainant.  Considering the facts and circumstances of the case we are not inclined to grant any compensation sought for in the complaint against the opposite party. The opposite party is also liable to pay a sum of Rs.5,000/- as litigation charges to the complainant.  Accordingly the points 1 and 2 are answered.

        In the result, this complaint is partly allowed.  The opposite party is directed to pay a sum of Rs.1,27,050/-  (Rupees One lakh twenty seven thousand and fifty only) towards the interest for already refunded amount of Rs.7,70,000/-,  also to refund a sum of Rs.30,000/- (Rupees Thirty thousand only)  with interest at the rate of 18% per annum from 17.08.2010 to till the date of payment and  also to pay a sum of Rs.5,000/- (Rupees five thousand only) as cost  to the complainants within six weeks from the date of this order, failing which the above said amount of Rs.1,27,050/- will also carry interest at the rate of 18% p.a. from the date of this order to till the date of payment.  

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  6^th    day  of  July   2016.

 

 

MEMBER-I                                        MEMBER-II                                           PRESIDENT.

Complainant’s Side documents :

Ex.A1- 19.4.2010      - Copy of booking form.

Ex.A2- 19.4.2010      - Copy of cheque for a sum of Rs.7,00,000/-

          10.5.2010

Ex.A3- 17.8.2010      - Copy of Revised allotment letter.

Ex.A4-                    -        - Copy of Mails statement regarding request change in allotment.

Ex.A5- 27.7.2011      - Copy of cancellation letter sent by the opposite party.

Ex.A6- 10.8.2011      - Copy of reply letter and Ack. Card.

Ex.A7- 27.8.2011      - Copy of Reply notice.

 

Opposite party’s side documents: -  

 

 

Ex.B1- 3.11.2010      - Copy of receipt issued for additional payment.

Ex.B2- 13.6.2011      - Copy of mail calling the complainants for signing agreements.

 

 

MEMBER-I                                         MEMBER-II                                          PRESIDENT.