Tamil Nadu

StateCommission

A/132/2017

Gnana Bharathi D - Complainant(s)

Versus

M/s. True Value Homes Pvt. Ltd. - Opp.Party(s)

M/s. Hari Radha Krishnan

13 Jan 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI – 600 003.

                   BEFORE   Hon’ble THIRU. JUSTICE. R. SUBBIAH                   ::     PRESIDENT                       

                                        Tmt.Dr.S.M.LATHA MAHESWARI                            ::      MEMBER

 

F.A. No.132/2017

  (Against the order in C.C. No.617/2005 on the file of the D.C.D.R.C., Chennai (South))

                                                                     DATED THE 13^th  DAY OF JANUARY 2022

 

D. Gnana Bharathi,

G-1, Dev Apartments,

Seshadripuram,

3^rd Cross Street,

Baby Nagar,

Velachery,

Chennai – 600 042.                                                         .. Appellant  / Complainant.

 

- Versus -

M/s. True Value Homes (I) Pvt. Ltd.,

TVH – Triveni,

No.21, C.V. Raman Road,

Alwarpet,

Chennai – 600 018.                                                         .. Respondent / Opposite party.

 

Counsel for Appellant /Complainant                : M/s. Hari Radha Krishnan

Counsel for Respondent / Opposite party       : M/s. S. Rajasekar

 

This appeal coming before us for final hearing today, and on various dates and on hearing the arguments of the appellant and on perusing the material records, this Commission made the following order in open court :-

ORDER

Tmt. Dr. S.M. LATHA MAHESWARI:

            This appeal has been filed by the appellant / complainant under section 15 of the Consumer Protection Act 1986 against the order of the District Consumer Disputes Redressal Commission, Chennai (South), made in CC.No. 617/2005 dated 2.12.2011.

 

1.         The factual background culminating  in to  appeal is as follows:-

            The complaint was filed by the appellant herein before the District Commission, Chennai (South) alleging deficiency in service on the part of the opposite party and to direct them to

1. revoke the order of cancellation of allotment of booking,
2.  to produce CMDA approval and other relevant documents for the purpose of sanctioning the loan along with the compensation of Rs.1,00,000/- with cost of the complaint.  

It was submitted by the complainant that he had booked an apartment with the opposite party in the project named TVH Park Villa, Thoraipakkam, Perungudi. As complainant was suffering from certain permanent disability his movement was restricted and hence he booked a flat in Block E, “ Erianthe”,   Flat No.3 which is closer to the entrance.   The total sale consideration of the flat was fixed at Rs.13,59,170/- . The complainant had paid Rs.20,000/- on 29.02.2004, Rs.30,000/- on 14.09.2004 and Rs.60,000/- in October, Thus totalling a sum of Rs.1,10,000/-  was paid towards the cost of the flat.  In the mean time, complainant received a communication on 07.12.2004 that a sum of Rs.7,05,502/- was pending to be paid by him towards a part of the balance sale consideration of the flat.   The complainant sent a reply dt.21.12.2004 stating that he was ready for the registration by paying the said amount provided the CMDA approval and the Parent Documents of the property was provided by the opposite party to him. However on 22.12.2004, the complainant received a letter from the opposite party stating that if the complainant did not make payment on or before 27.12.2004 then his booking would be cancelled. Further, the complainant received a letter on 02.04.2005 from the opposite party stating that they had cancelled his booking and had offered the allotted flat for fresh enquires at the existing rate.  Thereafter, the complainant approached the Consumer Association of India and had sent a legal notice to the opposite party on 11.05.2005. However the opposite party did not send any reply.  Hence, the complaint was filed for the reliefs as mentioned above. 

The opposite party filed version stating that they had promoted a project in the name of TVH Park Villa with 6 new blocks in an area spread over 5 acres and 24 cents in Thoraipakkam Village, Kancheepuram District.  It is admitted that the complainant became an allottee by entering into a Builder’s Agreement with the opposite party during October, 2004 agreeing for purchase of a flat bearing No.E-111 on the First Floor in Block Erianthe measuring 1060 sq. ft. with 631.65 sq. ft. of UDS.  Further they submitted that it was agreed by the complainant to pay Rs.13,59,170/- as per the payment schedule mentioned in the Builders Agreement.  The opposite party thus agreed the payment of Rs.1,10,000/- made by the complainant at the time of signing the agreement in the year 2004 as required under the schedule of payment.  However when the 2^nd instalment of Rs.5,69,585/- was raised by the opposite party, the same was not paid by the complainant.  The opposite party also faced some difficulty in getting the CMDA approval with respect to the Block E & F. By citing this reason the complainant avoided the payments as per the schedule.  As the entire project involved more than 200 dwelling units, the sanction was ultimately obtained for the disputed block E only on 28.02.2005.   So, it was submitted that the delay caused in obtaining the CMDA approval and other necessary sanctions were not due to the fault on the opposite party.   Under the circumstances, the opposite party as per the schedule demanded Rs.1,150/- per sq. ft. on 22.12.2004 from the complainant as fixed earlier but the complainant failed to make any payment and the opposite party was forced to issue another notice dt.28.12.2004 offering choice to the complainant either to pay Rs.5,69,585/- as agreed or to cancel the present booking and join the project by paying at the prevailing rate.  As the complainant did not pay the amount the opposite party was forced to cancel the allotment.  Thus, the opposite party alleged that there is no deficiency in service on their part and sought for dismissal of the complaint.

4.         The complainant filed proof affidavit and marked documents Ex.A1 to Ex.A19.  The opposite party filed proof affidavit and marked documents Ex.B1 to Ex.B5.

5.         The learned District Forum after perusing the pleadings and documents submitted by both parties dismissed the complaint holding that there is no deficiency in service on the part of the opposite parties.

Aggrieved against the same, the complainant had preferred the present appeal.  

6.         Points for consideration :

1. Whether there is any deficiency in service on the part of the opposite parties in cancelling the allotment order made in favour of the complainant?
2. If so, to what relief the complainant is entitled?

7.         Points No.1 & 2:-

          Heard both counsels and also perused the written arguments filed by both the parties. 

The learned counsel appearing for the appellant/complainant argued that having accepted Rs.1,10,000/- towards the cost  of the flat, the respondent ought not to have cancelled the booking made by him. Further it is submitted that the loan as sanctioned for a sum of Rs. 12,50,000/- from the IDBI Bank was not dispersed to the complainant only due to the fault on the part of the opposite party as they did not provide the title documents and CMDA approval for the flat when required by the Bank. Further he argued that in the builders agreement Ex.A.3, it was mentioned that the allottee /complainant had verified all the parent documents and connected papers which are in possession of the Builder and accordingly he submitted that it is evident that those documents were only with the respondent/Builder and so only due to their fault in not producing the same before the IDBI Bank, the loan amount was not disbursed to the complainant and consequently he could not pay the 2^nd scheduled payment. The learned counsel in toto submitted that the default in their payment as per the schedule towards the cost of the flat as per the agreed terms was only due to the fact that the respondent did not produce the CMDA approval. Thus he sought for the appeal to be allowed.

8.       The learned counsel for the respondent submitted that the delay in getting CMDA approval for the block E in which the complainant had booked the flat was not due to their fault but due to the new environmental regulations that came into force at that time. But he submitted that ultimately the sanction was obtained on 28.2.2005 and hence the complainant’s allegations that he did not pay the second scheduled payment only because of the delay in getting CMDA approval by them could not be accepted. He further argued that by letter Ex.B.3/Ex.A.9 dated 23.12.2004, a final opportunity was given to the complainant to pay the second installment, however that opportunity was not utilized by him, for this reason left with no other option the allotment made in favour of the complainant was cancelled. The request made by the complainant to revoke the cancellation and to allot him any flat in Blocks A,B,C or D could not be entertained as they were already booked by third parties. Thus he argued that the order of the learned District Commission holding that there is no deficiency in service on the part of this opposite party is a justified order and he prayed for the dismissal of this appeal.

9.       It is an admitted fact that the complainant had booked a flat in Block E,  Erianthe Flat No.3 which is closer to the entrance and that the total sale consideration of flat is fixed to Rs.13,59,170/- and complainant had paid Rs.20,000/- on 29.02.2004, Rs.30,000/- on 14.09.2004 and Rs.60,000/- in October, thus totalling a sum of Rs.1,10,000/- towards the total cost of the flat. It is seen that as per Ex.A.9, dated 28.12.2004, a letter issued by the opposite party, they had claimed the payment to be made as per the schedule in the agreement and they had also given an option to choose either to continue the allotment by paying the amount or in alternative to cancel the booking. However the letter was not responded by the complainant and the amount claimed was also not paid. Thus it is evident that there is fault on the part of the complainant in not acting as per the agreed terms with respect to the schedule of payment as entered between the parties. The allegations that appellant/complainant did not get the loan disbursement only due to the non-production of the CMDA approval and the parent documents by the opposite parties is not substantiated by the complainant by producing any material evidence. It is for the complainant to take efforts to get the loan sanctioned in his favour.  The complainant had also not made the bank as a party to the proceeding to prove the said allegation. Thus the reason for the non disbursal of the loan amount though initially sanctioned by the bank remained undisclosed. The complainant’s request for alternative allotment of flat by the Builder was also turned down for the valid reason that they were already allotted to some third parties. Thus we hold that there is no deficiency in service on the part of the opposite party in cancelling the allotment made to the complainant and consequently we see no reason to revoke the cancellation of allotment as prayed by the complainant.

10.       Perusal of Ex.A.4, the letter sent by the opposite party to the complainant reveals that the booking was cancelled and that the complainant was requested to collect the amount already paid by him. No evidence was produced on the side of the opposite party to show that the said amount of Rs. 1,10,000/- already paid by the complainant was repaid to him till date. In such circumstances, in the interest of justice, we direct the opposite party to refund the amount of Rs.1,10,000/- to the complainant within 4 weeks from the date of receipt of this order copy. Thus we answer the points accordingly.

In the result, the appeal is partly allowed modifying the order passed in CC.No. 617/2005 on 2.12.2011 by directing the opposite party to repay the amount of Rs.1 lakh to the complainant within 4 weeks from the date of receipt of copy of the order. No order as to cost.

 

 

S.M.LATHA MAHESWARI                                                                         R. SUBBIAH             

          MEMBER                                                                                          PRESIDENT