Date of Filing: 05/09/2017
Date of Order: 18/11/2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
ARIYALUR
PRESENT : THIRU. V. RAMARAJ M.L., PhD., PRESIDENT
: THIRU. N. BALU B.A., B.L., MEMBER I
: TMT. V.LAVANYA B.A.B.L., MEMBER II
C.C.(RBT) NO. 134/2022.
FRIDAY THE 18th DAY OF NOVEMBER 2022.
1. Mr. Varkey Ittyerah
S/o Mr. I Varkey
Aged about 55 years,
Residing at Apartment No B 1303
13th Floor, Tower ‘B’ New Door No. 3(old No.2)
Monteith Road, Egmore,
Chennai - 600 008.
2. Ms Mary Varkey,
Aged about 53 years,
Residing at Apartment No B 1303
13th Floor, Tower ‘B’ New Door No. 3(old No.2)
Monteith Road, Egmore,
Chennai -600 008. Complainant.
Vs
1. M/s Alliance Housing Chennai,
A partnership firm,
Having its registered office at No. 85, Karthik Nagar,
Marathahalli- KR puram outer ring Road, Bangalore
And its registered office at Plot No. “A” No 36/1,
Gandhi Mandapam road,
Kotturpuram,
Chennai -600 085.
Rep by Partnership company Managing Director
Opposite Parties.
2. M/s Alliance villas Private Limited,
Having its office at Plot No. “A” No 36/1,
Gandhi Mandapam road,
Kotturpuram,
Chennai -600 085.
Rep by Managing Director
Mr. Manoj Naburu .
Counsel for Complainant: - Mr.K.F.Manavalan
Mr.Bijesh Thomas
Counsel for opposite Parties 1&2 M/s Mr.A.Joseph Dorairaj
Mr. V.V.Giridhar.
This Complaint having come for final hearing before us on 07/11/2022, and upon Perusing the Complaint, Written Versions, Proof Affidavits and Documents filed by the Complainant , Complainant side 26 exhibits marked No exhibits marked o the side of Opposite Parties. This Commission passes the Following:-
ORDER
PRONOUNCED BY Tmt. V.LAVANYA B.A,B.L., MEMBER II
ADOPTED BY Dr.V.RAMARAJ M.L.,Ph.D., PRESIDENT & Mr. N.BALU B.A,B.L. MEMBER I.
1. The Complaint is filed under section 12 of Consumer Protection Act, 1986, by the Complainant directing the Opposite Parties to refund the sum of Rs.50, 000/- paid by the Complainants to the Opposite Parties along with interest thereon @ 18% from the date of demand till realization. Direct the Opposite Parties to pay to the Complainants a sum of Rs.4,25.000/- towards mental agony caused by the Opposite Parties Unfair Trade Practices and deficiency of Services towards mental agony; direct the Opposite parties to pay the cost of this complaint.
2. Brief Averments of the Complainant :
a. The Complainant Submits that the 1st and 2nd Opposite Parties had out, inter alia, that the 1 Opposite Party in a partnership in, in which the 2nd Opposite Party is a partner, and that the Opposite Parties are promoting a project, ‘Alliance Villa Belvedere’ to develop house-sites and formed a lay-but over an extent of at least 4.2 acres at Vallam and Vallakkotai Villages, Sriperumbudur Taluk Kanchipuram District the Project.
b. The 1st& 2nd Opposite Parties further held-out that the 1 Opposite Party was the owner of the said 4.2 Acres of land, and had also obtained Patta for the entire extent of 4.2 Acres. It was further held-out that all approvals from the competent authority, including the DTCP, had been obtained for the lay-out for the entire Project over the 4.2 acres or thereabouts, and the common facilities & amenities, including the 'Club House' for use by the purchasers, that were to be developed, would be owned by the purchasers of plots in the Project.
c. The Complainant states that the 1st & 2nd Opposite parties further held-out to the Complainants that legal obligations between parties would commence on the execution of an agreement to sale' within 21 days from the date of the Complainants' evincing interest to enter into negotiations to purchase plots in the Project, and that any sum paid by the Complainants prior to such agreement, would be repaid in full, in the event of the proposed transaction not being proceeded with for any reason. Thus, the Complainants were assured by the 1st & 2nd Opposite Parties and, in any event, it was always understood between the parties that any documentation executed prior to an actual agreement of sale between the parties could, at best, be an invitation to offer', and in the absence of execution of any agreement of sale' - shall not bind legal obligations on the parties.
d. The Complainant Relying on the aforesaid promises and warranties, on 28/08/2016, had made payment of Rs. 50, 000/- (Rupees Fifty Thousand only) in the following manner viz., Rs. 20,000/- vide Card payment, and a further Rs. 30, 000/- by cheque bearing no. 504 207 dated 31/08/2016 drawn on the 'Yes Bank' towards the proposed purchase of 600 sq. ft., of land in the Project.
e. However, to the utter surprise and shock of the Complainants, the 1st & 2nd Opposite Parties did not abide the agreement of sale within the promised 21 days from 28/08/2016 or even on 31/08/2016. The promised agreement of sale was actually forwarded sometime in the 2nd week of October, 2016.
f. The agreement of sale not only contained new & fresh terms that were not agreed upon at all between the parties, but also disclosed material suppression of facts, which turned it into alteration in contract than that contemplated between the parties on 28/08/2016. It was only at that time when the proposed agreement of sale was forwarded to the Complainants in or about the 2 week of October, 2016, that the Complainants were made aware-for the time that the land for the Project was actually agricultural land, and that the approval from the competent authority to convert such agricultural land to "house sites" was not complete for the entire extent of 4.2 acres. Most importantly, at the time of the transaction, the issue of conversion of agricultural land into house-sites was an issue sub-judice before the Hon'ble Madras High Court which would have adversely affected transactions for the purchase of plots in the Project. There were material facts that had been deliberately suppressed by the 1st & 2nd Opposite Parties. If the material information had not been suppressed and had been brought to the Complainants knowledge
g. The 1st & 2nd Opposite Parties were bound to disclose in law, if their intentions were legal and/or bonafide. The Complainants would not have contemplated the transaction with their hard-earned money. In addition to not forwarding the agreement of sale within 21 days from the date of payment i.e. 28/08/2016, the contents of the agreement of sale, as forwarded further disclosed that the 'Club House' that was earlier mentioned as a commonly owned property by all purchasers of plots in the Project was to be owned not by the owners of plots, but by the 1 Opposite Party, which again was materially different from what was mentioned & projected to the Complainants at the time of payment on 28/08/2016.
h. The Complainant states that further, a previously not discussed and undisclosed sum of Rs. 25, 000/- (which is a considerable amount , was demanded as documentation charges in addition to sums towards alleged service tax and VAT etc., which claims, incidentally, are mutually contradictory and exclusive). Further, the Opposite Parties demanded maintenance charges, and Patta charges. If the Patta for the said extent of land were already available then, the question of alleged "Patta-making charges would not arise at all.
i. The Complainant further states that it was stipulated that Opposite Parties representations made through brochures or websites along with the oral representations at the time of payment on 28/08/2016 formed the basis for the payment by the Complainants were sought to be projected as being "conceptual" only, and the 1st & 2nd Opposite Parties now sought to illegally impose altered contract on the Complainants with intent to unlawfully gain and unjustly enrich themselves at the Complainants expense. The Opposite Parties misrepresentations amount to 'unfair trade practices' besides falling within the meaning of 'deficiency in service by the Opposite Parties.
j. The Complainants requested for clarifications and sought to hold the 1st & 2nd Opposite Parties to the promises made to them to part with their hard-earned money, In spite of repeated request the Opposite Parties were avoiding telling truth clearly.
k. The Complainants were left with no option but not to proceed further and to seek the return, including vide letters dated 11/10/2016, 11/11/2016, 21/11/2016 & 04/01/2017, of the Rs. 50,000/- [Rupees Fifty Thousand only] admittedly received by the 1st & 2nd Opposite Parties from the Complainants. A copy of the Booking Form was not given to the Complainants on 28/08/2016, and was given to them almost 4 months later only on 27/12/2016 after several requests. The Opposite Parties plans were obviously to keep the Complainants in the dark.
l. The 1st & 2nd Opposite Parties, on various dates, had admitted the receipt Rs.50,000/- (Rupees Fifty Thousand only) from the Complainants but subsequently including letters 16/12/2016, 20/01/2016, and 01/02/2017 and sought to impose fresh and different conditions at different points of time for its retum, which were legally & factually untenable.
m. Initially, the 1st & 2nd Opposite Parties had refused to return any sum at all to the Complainants ,later they accepted to return a part of the sum of Rs. 25,000/- (Rupees Twenty Five Thousand only) that too without any definite time-frame. Even this part- payment has not been paid to the Complainants till date.
n. The 1st & 2nd Opposite Parties repeated shifting of stance on the return of Rs. 50, 000/-( Rupees Fifty Thousand only) besides exposing the utter lack of bonafides establishes that the 1st & 2nd Opposite Parties do not have any intention to return the sum due to the Complainants, and, in fact only further demonstrated their intention to cheat the Complainants from the very inception of the transaction itself rendering the 1st & 2nd Opposite Parties as well as persons who had acted on the Opposite Parties behalf liable for prosecution for offences under the penal laws including cheating, breach of trust & conspiracy to commit criminal offences etc.
o. The Complainants vide email dated 24/03/2017 had also lodged complaints with the Confederation of Real Estate Developers Association CREDAI, Chennai, against the Opposite Parties illegal acts but the complaint has not elicited any response.
p. Therefore the complainants caused a Legal notice dated 10/05/2017, through Counsel, calling upon the 1 & 2 Opposite Parties to pay the sum of Rs. 50,000/- (Rupees Fifty Thousand only) within 7 days of the receipt of the notice, failing which the Complainants would initiate appropriate legal action holding them liable for all costs and consequences thereof. The notices were pre-paid and addressed correctly to the Opposite Parties and are deemed to have been served on them under Section 27 of the General Clauses Act. The 2nd Opposite Party received the notice on 13/05/2017. The Opposite Parties, till date, have neither replied nor repaid the sum due to the Complainants.
q. The Complainants were made to run from pillar to post, seeking the return of the advance amount of Rs 50,000/- (Rupees Fifty Thousand Only). The constant change of Rules or requirements in a way that makes success more difficult by the Opposite Parties - as evidenced by the correspondence on record initially regarding the representations made, then the proposed contractual terms and their Opposite Parties subsequent to the receipt of payment from the Complainants appeared to be one continuous effort at constant mental harassment by the Opposite Parties with a view to somehow make the Complainants lose hope and throw up their hands in despair, so that the Opposite Parties could make unlawful gain at the expense of the Complainants.
r. The 1st Complainant health due to age related ailments has been further affected due to the constant tension brought about the Opposite parties illegal acts, and also caused tremendous mental agony to the 1stComplainant and his wife, the 2nd Complainant.
s. The Opposite parties have indulged in unfair trade practices and have been glaringly deficient in the performance of their services to the Complainants in respect of the Project.
t. The emails exchanged between the parties from and to the 1st Complainant’s email ID vinoo555@yahoo.com and the Opposite email ID viz. info@alliance.com, rafiq alliance.in.com, Angelin@ alliance.in.com. And CREDAI at gm@credaitamilnadu.org are set-out and identified below thereinafter, the Communications.
u. The complainant states that he confirm and certify that: (i) the computer output containing the Information was produced by the Laptop/Computer used during the period from 11/10/2016 to 24/03/2017 by me and the Computer were used regularly to store or process information for the purposes of any activities regularly carried on over that period by persons having lawful control over the use of the Computer, During the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the Computer in the ordinary course of the said activities; throughout the material part of thesaidperiod, the Computers were operating properly, and the information contained in the electronic record reproduces or is derived from such information fed into the Computers in the ordinary course of the said activities. I confirm that the contents of the hard copies of the Information are identical to the emails exchanged through the computer terminals. I further state and confirm that the contents of the hard copies of the emails annexed are identical to the hard copies of the emails filed along with the complaint a compilation of which have perused and enclosed. Based on the above submissions this complaint may be allowed.
3. Brief Averments of the 1st and 2nd Opposite Parties
a. The 1st and 2nd Opposite Parties respectfully state that it is admitted that they have developed a project of house sites named as 'Alliance Belvedere' in the total extent of 4.2 acres of land in Vallam and Vallakkotai Village, SriperumpudurTaluk. It is also admitted that the opposite parties are the owners of the land and they have obtained patta in their name in respect of the entire land. Further the opposite parties have also created a layout in the above project after obtaining necessary approval from the Directorate of Town and Country Planning (DTCP) and Chennai Metropolitan Development Authority (CMDA).
b. The opposite parties respectfully state that it is admitted that the complainant had approached them for booking a plot in the above housing layout measuring about 600 square feet of land and signed the booking form dated 28/08/2016 wherein it was agreed by the complainant that he was willing to purchase the housing plot in the above project measuring about 600 square feet at Rs. 2069/- per square feet and the total amount payable by the complainant was Rs. 12,41,400/- towards the total sale consideration,
c. The opposite parties respectfully state that the complaint alleging that the opposite parties have promised that the purchasers of the plots would be owning the common facilities and amenities including the Club House developed by them is denied as false. In this regard the opposite parties respectfully state that club house is common amenity developed and maintained by them for the benefit of all the purchasers and at no point of time the opposite parties have informed the complainant that the club house would be owned by the complainant as admittedly it is a common amenity which is not covered under the sale deed and club house and other amenities are developed in a property owned by the opposite parties. Therefore the contention of the complainant that the opposite parties have promised that the club house would be owned by the complainant is per se false and put the complainant into strict proof of the same.
d. The opposite parties submits that they have agreed to refund the entire advance amount of Rs. 50,000/- paid by the complainant in the event of the complainant failed to get the sale agreement executed in their favor is denied as false and put the complainant into strict proof of the same. The opposite parties respectfully state that even as per the booking form it was specifically stated that in the event of cancellation of the booking before execution of the sale agreement on the part of the complainant, the opposite parties have got right to deduct a sum of Rs. 25,000/- towards cancellation charges and refund the balance amount within a period of 60 days from the date of the cancellation. Having agreed to the said clause the complainants have signed the booking form and having agreed upon the terms and conditions, they have paid a sum of Rs. 50,000/- towards booking charges. Thus when the agreement is clear with regard to the refund of the booking amount paid by the complainant, the contention of the complainant that the opposite parties have agreed to refund the entire amount paid by the complainant is nothing but suppression of material fact and approaching this honorable forum with unclean hands by making false averment to suit their convenience. Therefore having approached this honorable forum with false averment and with unclean hands the above complaint is liable to be dismissed as not maintainable on this ground alone.
e. The opposite parties with the contention of the complainant that they have paid a sum of Rs. 50,000/- towards booking charges and balance sale consideration would be paid periodically after execution of the sale agreement.
f. The Opposite Party states that with regard to the averment made by the complainant in paragraph 5 of the complaint that the agreement of sale would be forwarded to the complainant by opposite parties within 21 days from the date of payment of the booking charges and the opposite parties have forwarded the draft sale agreement only in the second week of October 2016 only is denied as false and put the complainant into strict proof of the same. In this regard it is admitted by the opposite parties that the booking form was made clear that the agreement of sale would be executed within 21 days from the date of making necessary payments and in this regard was clearly mentioned in the booking form wherein the complainants were asked to come to the office of the opposite parties on 26/09/2016 for signing the sale agreement. However the complainants did not appear on 26/09/2016 as per the terms of the agreement and they have taken their own time to call upon the opposite parties requesting them to send the draft sale agreement for their perusal. Thereafter the opposite parties have sent the draft agreement of sale on 06/10/2016 to the complainant incorporating the common terms and conditions which is applicable to all the purchasers. Therefore the contention of the complainant that there was a delay on the part of the opposite parties in sending the draft sale agreement to the complainant is denied as false and having failed to approach the office of the opposite parties as per the schedule given in the booking form the complainant has got no right whatsoever to make allegation as against opposite parties as the complainants themselves are the party to the delay in preparing the draft sale agreement.
g. The opposite parties submit that they have incorporated new and fresh terms not agreed upon between the parties and also disclosed material suppression of facts and the agreement turned out to be a materially different contract is denied as false and put the complainant into strict proof of the same and it is stated that they have incorporated only the terms and conditions which is applicable to all the purchasers and at no point of time the executives of the opposite parties have given false promise or false hopes to the complainant and the terms of the agreement were duly explained to the complainants and having accepted all the terms and conditions only the complainants have signed the booking form by making the booking charges. Therefore the contention of the complainant that the opposite parties have suppressed the material fact and had Incorporated fresh terms is denied as false and put the complainant into strict proof of the same and it is reiterated that at no point of time the opposite parties have suppressed any material facts the complainant or to any of the purchasers as alleged by the complainant.
h. The Opposite Parties submit that with regard to the further averments made that the land which is developed as the layout actually an agricultural land and the approval from the competent authority to convert the agricultural land in to housing sites was not complete is denied as false and put the complainant into strict proof of the same. In this regard the opposite parties respectfully state that the entire land which is developed as the layout in the above project was duly approved by the directorate of town and country planning and was also duly approved by the Chennai Metropolitan development authority and no objection was also given by the principal authority for putting the layout. All the above approval was obtained by the opposite parties in the year 2015. Therefore the contention of the complainant that the conversion of agricultural land into housing sites is still pending for approval by the appropriate authority is per se false. It is strange to note that having admitted in the complaint that the opposite parties have obtained DTCP approval for the above project the complainant is making allegation that the conversion of the land is still pending. Thus it is very clear that the complainant is making such false allegation to unjustly enrich himself though they had knowledge about the approval by the appropriate authorities. Therefore there is no suppression of material fact by the opposite parties and they have given all the facts pertaining to the above project and that they have obtained all the necessary approvals from all the appropriate authorities.
i. The opposite parties have promised the complainant that the club house would be owned by all the purchasers are denied as false. As stated above was made clear at the time of booking itself that club also be an amenity and that will be maintained in the common area by the opposite parties which will not be included in the schedule to the sale deed and as all the purchasers have got right over the said clubhouse the same cannot be owned by the purchasers.
j. Further the complainants have failed to produce a single document to establish that the opposite parties have given false promise to the complainant with regard to the ownership of the club house. Further on perusal of the agreement of sale sending opposite parties to the complainant it would be very clear that the schedule to the sale agreement did not show the club house as part of the sale consideration and the clubhouse and other amenities were shown as common amenities in the schedule to the sale agreement. Therefore at no point of time the opposite parties have promise the complainant that the clubhouse would be included in the sale consideration. Therefore for not proceeding with the payment of the sale consideration, the complainants are making false and vexatious allegations as against opposite parties to unjustly enrich themselves.
k. The opposite parties did not inform the complainant with regard to the legal and documentation fee payable by the complainants at the time of booking terms and conditions. In this regard the opposite parties state that was made clear by the opposite parties the booking form that it is only in invitation for agreement and it is not the sale agreement and the opposite parties cannot incorporate all the terms and conditions in the booking form. However the opposite parties have orally informed to all the purchasers including the complainants about the amount payable by them over and above the sale consideration. Having accepted the said terms and conditions only the complainants have proceeded to make the payment towards the booking charges.
l. Further documentation charges would be charged to all the purchasers and on payment of such charges the purchasers would be provided with the copies of the entire title deeds and other relevant documents pertaining to the project. Therefore the amount charged by the opposite parties is for the benefit of the purchasers as it would be convenient for them to proceed further for obtaining the loan and for future sale of the plot as they will be provided with all the relevant documents pertaining to the project. Therefore the contention of the complainant that the said clause was not incorporated in the booking form is denied as false and therefore the said contention of the complainant is liable to be rejected as not maintainable.
m. The Opposite Parties state that the complainant alleging that the maintenance charges and Patta making charges were not disclosed to the complainant and if the Patta in respect of the then their property is available in the name of the opposite parties there is no necessity for the opposite parties for charging for Patta transfer in the name of the complainant. It is unfortunate to note that without even knowing the basic legal issues pertaining to Patta the complainant is making such a strange and vexatious allegation. It is admitted that the Patta in respect of the entire land is standing in the name of the opposite party and after the execution of sale deed in respect of the plot; the Patta would be transferred in the name of the purchaser. For the transfer of Patta after the execution of sale deed to make easier for the purchasers the opposite parties have undertaken the task of approaching the appropriate authorities for getting the Patta transferred in the name of the purchasers and the opposite parties have mentioned in the sale agreement that the Patta making charges would be payable by the complainants on the actual basis. Therefore the opposite parties did not charge any amount for the transfer of Patta and all that they have asked the complainant is to pay the actual charges for transferring the Patta in their name. Without even knowing the above basic legal position the complainant is making such a strange and false averment as against opposite parties and therefore the same is liable to be rejected as not maintainable.
n. The opposite parties respectfully state that they will compound in the entire layout and they will plant trees and maintain Park in the above layout and they will also engage proper personnel the layout for security and for gardening the plots and for that the opposite parties have agreed to maintain the same and for the same they have charged the maintenance charges which is payable by the purchasers on the actual basis till the forming of the Association and after the formation of the Association of the project, the maintenance would be handed over to the Association and they will fix the maintenance charges accordingly. The above clause was also duly informed to the complainant at the time of booking of the plot and no new conditions were imposed by the opposite parties in the sale agreement and all the said conditions are for the benefit the purchasers and the opposite parties have imposed the charges on the actual basis. Therefore there is no illegality or suppression of fact by the opposite parties as all those clauses are for the benefit of the complainant for keeping the plots safe and green.
o. The opposite parties respectfully state that all the above conditions and charges payable by the complainants were duly informed to them at the time of booking of the plots and the opposite parties cannot incorporate all the terms and conditions in the booking form and all the terms and conditions were duly explained and informed to the complainant and in this regard alone the opposite parties have called for the complainants to come to their office before finalizing the sale agreement with regard to the terms and conditions of the sale agreement. Further the booking form itself clearly mentioned by the opposite party that it is not an agreement to sell and all the clauses of be incorporated the sale agreement which would be executed at the later stage. Therefore by suppressing the above fact the complainants have approached this honorable forum with unclean hands and without even understanding the legal position by making false and vexatious averments to unjustly enrich themselves. Therefore on the said ground alone the above complaint is liable to be dismissed as not maintainable.
p. With regard to the claim made by the complainants for the refund of the amount of Rs. 50,000/-paid by them at the time of booking, it is respectfully submitted by the opposite party that clause 5 of the booking form makes it very clear that the month of cancellation of the booking prior to the execution of the sale agreement, the opposite parties have got right to retain a sum of Rs. 25,000/- towards cancellation charges and would be refunding the balance amount. Having agreed to the said terms and conditions the complainants have signed the booking form and paid a sum of Rs. 50,000/- and cancelled the booking before execution of the sale agreement though the opposite parties have sent the draft sale agreement to complainant. Therefore immediately and cancellation of the booking by the complainant, was duly informed to the opposite parties that as per the terms of the booking form they will be retaining a sum of Rs. 25,000/- as cancellation charges and they will proceed to refund the balance sum of Rs. 25,000/- to complainants as per the terms of the booking form.
q. The opposite parties respectfully state that they have acted as per the terms and conditions of the booking form and there is no illegality or deficiency in service on their part in charging the cancellation charges and it was also duly informed to the complainant that they are ready and willing to refund the balance amount of Rs. 25,000/-. When the booking form clearly stipulates that no condition of the cancellation charges, the complainant is bound by the said terms and conditions and he cannot approach this honorable forum to rewrite the agreed terms and conditions to incorporate new contract before this honorable forum. Therefore on this ground alone the above complaint is liable to be dismissed as not maintainable as the complainant and approached this honorable forum with unclean hands by suppressing material information.
r. It is incorrect and out of context to attribute any deficiency to the Opposite Party much less the alleged mental agony and the Complainant is put to strict proof of the same. It is pertinent to state that it is the Opposite Parties who suffered financially as the complainant had cancelled the agreement after booking the plot and denied the opportunity to the opposite parties to sell the plot booked by the complainant to a third party as most of the plots were already been sold and some of the plots were unsold due to the delay on the part of the persons like complainants in cancelling the booking at the later point. All the allegations and claims of the Complainant averred are baseless, unwarranted and made with ulterior motive to cause wrongful financial and reputational loss to the Opposite parties and the Opposite Parties denies the same in Toto and the Complainant is put to strict proof of the same.
s. The Opposite Parties submit that the Complainant deliberately had not paid the agreement charges and wanted to give a go by to the terms and conditions regarding the cancellation charges and is trying to escape the payment of the lawful charges for the cancellation charges under the guise of the instant complaint and the Complainant had not come before this Honorable Forum with clean hands and is only trying to gain wrongfully and is trying to cause wrongful loss to the Opposite Parties and to tarnish the image of the Opposite Parties and had approached this Honorable Forum by suppressing material facts. Therefore on this ground alone the above complaint is liable to be dismissed as not maintainable.
t. The Opposite Parties submit that the entire complaint is filed by the complainants are based on presumption and assumption and they wanted rewrite new contract by giving a go by to the earlier terms and conditions as not maintainable before this forum. Therefore the Complainant is not entitled for any compensation much less an amount of Rs.25, 00, 00/- as claimed. It is further submitted that the damages are not only imaginary, baseless and uncalled for but also clearly suggest that Complainant has resorted to unwarranted litigation and has filed the instant complaint with ulterior motive to arm-twist the Opposite Party for no fault and for the wrongful gain of the Complainant and to cause wrongful loss to the Opposite Party and to tarnish the Opposite Party' image and reputation.
u. The Opposite Parties respectfully state that there is no cause of action for the above complaint and the complainant had filed the above false complaint with imaginary and fictitious grounds. As the Complainant had approached this Honorable Commission with unclean hands and had suppressed material fact and the above complaint is liable to be dismissed by imposing cost under section 26 of Consumer Protection Act, for having filed the above frivolous complaint. In view of the above facts and circumstances, this Honorable Forum may graciously be pleased to dismiss the above complaint with costs.
4. Points for Consideration
1. Whether there is deficiency of service by the Opposite Parties?
2. Whether the Complainant is entitled for the relief prayed for?
A. Point No.1
a. The 1st and 2nd Opposite Parties are the developers of project of house sites named as 'Alliance Belvedere' developed as “Gated community in the next generation” in the total extent of 4.2 acres of land in Vallam and Vallakkotai Village, SriperumpudurTaluk. It is also admitted that the opposite parties are the owners of the land. Further the opposite parties have also created a layout in the above project after obtaining necessary approval from the Directorate of Town and Country Planning (DTCP) and Chennai Metropolitan Development Authority (CMDA).
b. It is observed that the Complainants have booked a house site plot no.126 measuring 600 sq ft facing South/ West in their name giving an advance of Rs. 20,000/- through credit card payment dt 25/08/2016 and Rs30, 000/-by way of cheque dt 31/08/2016, for a sum total of Rs.50, 000/-, with certain General terms and conditions duly signed by both the parties as envisaged in Exhibit A1.
c. is noted from the version of the complainant that the Opposite Parties had mentioned that the legal obligations will commence only on the execution of an “agreement of sale” within 21 days in evincing interest to enter into negotiations to purchase plot in the Project. To substantiate the contention the complainant has filed Exhibit A1.
d. With regards to the Refund of full amount on cancellation of Booking the Complainant has not been able to prove his contention as the Booking form duly signed by him clearly states that a sum paid of Rs. 25,000/- would be charged as cancellation fees.
e. It is envisaged from the versions of the Opposite Parties that on 26/09/2016 the Complainant was asked to come to the office of the Opposite Parties for signing the Sale agreement but no document has been filed by the Opposite Parties to prove their contention, thereupon the Complainant received the draft Sale Agreement only after 42 days by courier as per the complainants submission.
f. It is observed that being dissatisfied with the terms and conditions of the Draft Sale agreement the Complainant had raised issues which are envisaged in Exhibit A3 and requested the Opposite parties to refund the advance amount of Rs.50,000/-. After going through the draft Sale Agreement the Complainant has alleged that there have been mismatch between the Points of Agreement that were orally presented to him at the time of booking and the points that were found in the Draft of Sale Agreement therefore the Complainant had decided to cancel the booking of the Plot.
g. It is Perceived that the Opposite Parties had replied with the enclosed cancellation Letter and have requested the complainant to sign the letter as confirmation for cancellation and return the same by Fax/Email/Courier to CRM Department along with the original receipt and with the allotment letter to help them process the refund of Rs.25, 000/- to the complainant, which is observed in A16. It is Pertinent to state that there was no sale agreement between the Parties.
h. It is pertinent to note that the Opposite Parties based on the Exhibit A1 are acting upon and legalizing their stand of Refunding of Rs.25, 000/- out of advance amount 50,000/-after deducting 25,000/- as cancellation charges. Hence we per se no deficiency of service on the part of Opposite Parties. Therefore, we decide this issue in favor of the Opposite Parties.
B. Point No.2
a. The Complainant had booked a plot from the opposite Parties by paying an advance amount of Rs.50, 000/-. Being dissatisfied with the terms and condition of draft sale agreement the complainants cancelled the Booking of the Plot and seeked for Refund of the advance amount. For which the Opposite Parties relied on Exhibit A1 clause 5, terms and conditions. The Booking form was duly signed by both the Complainant and the Opposite Parties and it is presumed that on thorough analyzing and reading only the complainant would have signed the Booking Form.
b. It is clear from the letter dated17/11/2016 communicated by the Opposite Parties to the Complainant that on written request for cancellation, the advance amount after deduction of cancellation charges will be refunded.
c. Therefore the Opposite Parties are directed to Refund Rs.25, 000/- with interest to the complainant @ of 18% from the date of payment till the realization. Point no. 2 is answered in favor of the Complainant.
In the Result;
1. The Opposite Parties are directed to Refund Rs. 25,000/- with Interest @ of 18% p.a to the complainant from the date of Payment till the date of Realization within one month from the date of this order.
2. The opposite parties are directed to pay Rs.10, 000/- as cost towards the complaint to the Complainant within one month from the date of this order.
Corrected and pronounced by us in the open commission, on this the 18th day of November, 2022.
N.BALU. B.A.B.L V.LAVANYA B.A.B.L V. RAMARAJ. M.L, PhD.,
MEMBER I MEMBER II PRESIDENT
Complainant’s side Documents
S.No | Date | Description | Remarks |
Ex-A1 | 28/08/2016 | Brochure for the project | Copy |
Ex2 | 7/10/2016 | Proposed agreement of sale | Copy |
Ex-A3 | 11/10/2016 | E-mail- Complainants to opposite Party | Copy |
Ex-A4 | 11/11/2016 | Letter from Complainants to Opposite parties | Copy |
Ex-A5 | 17/11/2016 | Reply letter from Opposite Parties to Complainants | Copy |
Ex-A6 | 21/11/2016 | Letter from Complainants to Opposite Party | Copy |
Ex-A7 | 15/12/2016 | Email complainants to Opposite Parties | Copy |
Ex-A8 | 16/12/2016 | Email Opposite Parties to complainants | Copy |
Ex-A9 | 17/12/2016 | Email-Complainants to Opposite Parties seeking refund | Copy |
ExA10 | 27/12/2016 | Complainant to opposite Party seeking refund | Copy |
ExA11 | 04/01/2017 | Complainants to Opposite Party | Copy |
ExA12 | 05/01/2017 | Complainants to opposite Party | Copy |
ExA13 | 18/01/2017 | Complainants to opposite party | Copy |
ExA14 | 19/01/2017 | Complainants to Opposite parties | Copy |
ExA15 | 20/01/2017 | Email Opposite Parties to Complainants | Copy |
ExA16 | 01/02/2017 | Opposite Party to Complainants with Cancellation letter | Copy |
ExA17 | 05/02/2017 | E-mail Complainants to Opposite Parties | Copy |
ExA18 | 11/02/2017 | E-mail Complainants to Opposite Parties | Copy |
ExA19 | 14/02/2017 | E-mail Complainants to Opposite Parties | Copy |
ExA20 | 07/03/2017 | E-mail Complainants to Opposite parties | Copy |
ExA21 | 15/03/2017 | E-Mail Complainants | Copy |
ExA22 | 24/03/2017 | E-Mail Complainants to CREDAI reg. Opposite Party | Copy |
ExA23 | 24/03/2017 | E-Mail Opposite Party to Complainants undertaking to pay Rs.25,000/- | Copy |
ExA24 | 10/05/2017 | Notice through Counsel complainants to opposite parties | Office Copy |
ExA25 | 13/05/2017 | Postal Acknowledgement card- Opposite Parties and Net Tracking Report | Copy |
ExA26 | 02/08/2017 | Certificate Under Section 65B of Indian Evidence Act | Copy |
Opposite Parties side Documents :- NIL
Complainant Side Witness:-
1. Mr. Varkey Ittyerah
2. Mrs.I.Varkey (Complainants)
Opposite Parties Witness:-
Mr. Srinivasula Reddy Dega
N. BALU V.LAVANYA V.RAMARAJ
MEMBER I MEMBER II PRESIDENT
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