Tamil Nadu

South Chennai

CC/391/2016

C.J.Siva Shankar - Complainant(s)

Versus

M/s.Ambojini Property Developers Pvt Ltd - Opp.Party(s)

V.Uma,

18 Dec 2019

ORDER

                                                                             Date of filing      : 07.12.2016

                                                                               Date of disposal : 18.12.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.391/2016

DATED THIS WEDNESDAY THE 18^TH DAY OF DECEMBER 2019

                                 

Mr. C.J. Siva Shankar,

S/o. Mr. P. Jagadeesan,

D-7, Utsav Block,

The Grove City Link Road,

Adambakkam,

Chennai – 600 088.                                                        .. Complainant. 

                                                                                                 ..Versus..

 

 

1. Ambojini Property Developers Pvt. Ltd.,

Having its registered office at:-

Ambojini 17-1, Poes Road, 2^nd Street,

Teynampet,

Chennai – 600 018.

 

2. M/s. Real Value Promoters Pvt. Limited,

Rep. by its Managing Director,

Having its office at:-

AMARASRI,

No.455, Anna Salai,

Teynampet,

Chennai – 600 018.

 

3. M/s. Real Value Ambojini Developers Pvt. Ltd.,

Having its office at:-

Ambojini 17-1, Poes Road, 2^nd Street,

Teynampet,

Chennai – 600 018.                                                 ..  Opposite parties.

 

Counsel for the complainant                   : M/s. V. Uma & others

Counsel for the opposite parties 1 to 3  : Mr. A. Palaniappan

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to return a sum of Rs.8,00,000/- with interest Rs.1,32,000/- calculated on the aforesaid amount at 18% from December 2015 to November 2016 to till the date of filing of this complaint and to pay a sum of Rs.5,00,000/- towards compensation for mental agony with cost of the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that after seeing the wild advertisement and representations made by the opposite parties and after seeing the brochure etc booked a flat on 29.10.2012.  The opposite parties also allotted a flat No.A, Block-2, 3^rd Floor measuring 1179 Sq. ft. for a sum of Rs.76,33,042/-.  The complainant also paid a sum of Rs.5,00,000/- on 29.12.2012 towards booking and allotment charges.   The complainant also paid another sum of Rs.5,00,000/- on 16.12.2013.  Thereby, the complainant paid a total sum of Rs.10,00,000/- as per the allotment. The complainant submits that on 14.02.2014, the opposite parties issued a modified booking form showing the total cost of the flat of Rs.84,08,587/- measuring of 1259 sq. ft.  But the opposite parties have not started the construction proceedings within the stipulated time. The complainant also not satisfied with the manner of construction of the opposite parties.  Hence, the complainant sent an e-mail dated:01.06.2015 regarding the cancellation of booking and requested for refund of the advance amount. Since, the opposite parties has not responded properly repeated email remainders sent by the complainant.  At long last, the opposite parties refunded a sum of Rs.2,00,000/- alone and informed that the balance amount will be paid later.  Due to unavoidable reason, it is getting delay and email dated:13.04.2016 sent by the opposite parties.   Then, the complainant issued legal notice dated:12.08.2016 for which, the opposite parties has not sent any reply.  The act of the opposite parties 1 to 3 amounts to deficiency in service and unfair trade practice which caused great mental agony.   Hence, the complaint is filed.

2.      The brief averments in the written version filed by 1^st opposite party is as follows:-

The 1^st opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.   The 1^st opposite party states that the complainant wrongly mentioned the name of the 3^rd opposite party by including the names of two companies into one.   The complainant purchased the property from the 1^st opposite party Ambojini Property Developers Pvt. Ltd. which is a separate entity.  The 1^st opposite party states that the complainant booked 2 bed room apartment at No.A, Block No.2 measuring 1179 sq. ft. in the project “SAI PEACE AND PROSPERITY” in Taramani with the total cost of the flat at the rate of Rs.76,33,042/-, the complainant opted to swap the same for 2 bed room apartment at No.12 A, Block No.2 measuring 1259 sq. ft with the total cost of the flat at the rate of Rs.84,08,587/-.  It is pertinent to mention that the cost of the flats will be varying according to the floors.  The complainant accepted for the change of rate and executed fresh booking forms agreeing the terms and conditions.   

3.     The 1^st opposite party states that on 29.10.2012 the complainant brought a cheque for Rs.60,000/- and cash payment of Rs.4,40,000/- towards the booking advance and booked the flat and executed the same after going through the terms and conditions  of the booking form and the opposite party duly informed him that on encashment of the cheque, the  opposite parties will pass on the receipt.  The complainant by his own statement, agreed that out of Rs.10,00,000/- payment made by him and he has made the initial payment of Rs.5,00,000/- on 29.10.2012  and the remaining payment of a sum of Rs.5,00,000/- on 16.12.2013 which is more than 1 year and 2 months from the date of booking.   The entire cost of the said flat is duly mentioned in the booking form.   The opposite parties have duly informed the complainant that as per the terms and conditions agreed by the complainant in the event of cancellation, the opposite party will get the refund of a sum of Rs.25,000/- from the booking amount with necessary taxes as applicable which will be deducted from the amount received and the balance sum will be released only on resale of the apartment.  It is pertinent to mention that after the incident at Mugalivakkam the sanctioning authorities were very vigilant in processing and approving the construction of flats.   The complainant was duly informed that Planning Permit has been obtained from CMDA and the advice amount paid to the tune of Rs.33 crores. 

4.     The 1^st opposite party states that the payments and amounts that were received from the flat purchasers were duly utilized towards construction of the flats.   The opposite party has duly invested the same in raising the flats after getting all sanctions and approvals by duly paying the statutory payments.   The complainant has sent a communication to the opposite party informing that their booking may be cancelled and sought for refund of the advance amount.   It is pertinent to mention that on receiving the same, he has been duly informed that the project is going on in full swing.   It is an admitted fact that if the complainant desire to cancel their booking the advance amount will be refunded once his flat is resold to any other person.   While executing the booking form, the complainant has duly agreed for the same and booked the flat.  The payments and amount that were received from the flat purchasers were duly utilized towards construction of the flats.   The opposite party has duly invested the same in raising the flats after getting all sanctions and approvals by duly paying the statutory payments.   Therefore, there is no deficiency in service on the part of the 1^st opposite party and hence, the complaint is liable to be dismissed with exemplary costs.

5.      The brief averments in the written version filed by opposite parties 2 & 3 is as follows:-

The opposite parties 2 & 3 specifically deny each and every allegations made in the complaint and put the complainant to strict proof of the same.  The opposite parties 2 & 3 state that the complainant purchased the property from the 1^st opposite party; Ambojini Property Developers Pvt. Ltd. which is a separate entity.   The complainant himself has given the cheque towards the advance amount in favour of Ambojini Property Developers Pvt. Ltd., but the complainant with ulterior motive to mislead this Forum has given a wrong description of the 3^rd opposite party.   The complainant approached this opposite party to purchase a flat and the officials of the opposite parties had duly received and rendered all possible help and service without any delay up to the satisfaction of the complainant. The complainant approached the 1^st opposite party to purchase a flat.   There is no cause of action to file this complaint against the opposite parties 2 & 3.    ‘Peace & Prosperity’ at Taramani (OMR), near TIDEL Park, Chennai is developed by the 1^st opposite party.   It seems from the documents that the complainant has paid the advance amount to the 1^st opposite party.   It is pertinent to mention that the opposite parties 2 & 3 are in the field of construction for the past 20 years and rendering service to the customers with utmost care and diligence.  Hence, there is no deficiency in service on the part of the opposite parties 2 & 3 and the complaint is liable to be dismissed.

6.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A10 are marked.  The opposite parties 1 to 3 after filing written version, failed and neglected to file proof affidavit to prove their contentions raised in the written version for a long time.  Hence, proof affidavit of the opposite parties 1 to 3 is ‘Closed’.    

7.      The points for consideration is:-

1. Whether the complainant is entitled to get refund of a sum of Rs.8,00,000/- with interest at the rate of 18% p.a. as prayed for?
2. Whether the complainant is entitled to a sum of Rs.5,00,000/- towards compensation for mental agony, deficiency in service with cost as prayed for?

8.      On point:-

The opposite parties 1 to 3 after filing written version, failed and neglected to file proof affidavit to prove their contentions raised in the written version for a long time.   Hence, proof affidavit of the opposite parties 1 to 3 is ‘Closed’.  Thereby, there is no evidence on the part of the opposite parties 1 to 3.  The complainant filed proof affidavit, documents, written arguments etc.    Heard the complainant’s Counsel also.  Perused the records namely; the complaint, written version, proof affidavit and documents of the complainant.  The complainant pleaded and contended that after seeing the wild advertisement and representations made by the opposite parties, and after seeing the brochure etc booked a flat on 29.10.2012.  The opposite parties also allotted a flat No.A, Block-2, 3^rd Floor measuring 1179 Sq. ft. for a sum of Rs.76,33,042/- as per Ex.A1.  The complainant also paid a sum of Rs.5,00,000/- on 29.12.2012 towards booking and allotment charges as per Ex.A2.  The complainant also paid another sum of Rs.5,00,000/- vide receipt dated:18.12.2013 as per Ex.A3.  Thereby, the complainant paid a total sum of Rs.10,00,000/- as per the allotment.   Further the contention of the complainant is that on 14.02.2014, the opposite parties issued a modified booking form showing the total cost of the flat Rs.84,08,587/- measuring of 1259 sq. ft. as per Ex.A4.  But the opposite parties has not started the construction within the stipulated time proves deficiency in service.  The complainant also not satisfied with the manner of construction of the opposite parties.  Hence, the complainant sent an e-mail dated:01.06.2015 as per Ex.A5 regarding the cancellation of booking and requested for refund of the advance amount.  Since, the opposite parties has not responded properly repeatedly e-mail reminders were sent to the opposite parties as per Ex.A6.  At long last, as per Ex.A7, the opposite parties refunded a sum of Rs.2,00,000/- alone and informed that the balance amount will be paid later proves unfair trade practice.  Due to unavoidable reason, it is getting delay and Ex.A8, e-mail sent by the opposite parties to the complainant.  Thereafter, the complainant issued legal notice dated:12.08.2016 as per Ex.A9 for which, the opposite parties has not sent any reply.  Hence, the complainant was constrained to file this case for refund of the balance amount of Rs.8,00,000/- with interest and compensation.  

9.     Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite parties 1 to 3 are jointly and severally liable to refund a sum of Rs.8,00,000/- with interest at the rate of 9% p.a. from the date of complaint to till the date of this order and to pay a compensation of Rs.20,000/- for mental agony with cost of Rs.10,000/- to the complainant.

In the result, this complaint is allowed in part.   The opposite parties 1 to 3 are jointly and severally liable to refund a sum of Rs.8,00,000/- (Rupees Eight lakhs only) along with interest at the rate of 9% p.a. from the date of filing of this complaint (i.e.) 07.12.2016 to till the date of this order (i.e.) 18.12.2019 to the complainant and to pay a sum of Rs.20,000/- (Rupees Twenty  thousand only) towards compensation for mental agony with cost of Rs.10,000/- (Rupees Ten thousand only) to the complainant.

The above amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 18^th day of December 2019. 

 

MEMBER                                                                                PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	29.10.2012	Copy of booking form for allotment of apartment
Ex.A2	29.10.2012	Copy of receipt issued for payment of advance
Ex.A3	18.12.2013	Copy of receipt issued for payment of advance
Ex.A4	14.02.2014	Copy of booking form for re-allotment of apartment
Ex.A5	01.06.2015	Copy of email issued by the complainant cancelling the booking and seeking refund
Ex.A6	11.07.2015, 10.08.2015, 24.09.2015, 04.06.2016 & 09.04.2016	Copy of email reminders issued by the complainant to the opposite parties for refund
Ex.A7	13.10.2015 & 23.12.2015	Copy of part payment made by the opposite parties towards refund of advance
Ex.A8	13.04.2016	Copy of email from the opposite parties to complainant confirming their liability to pay
Ex.A9	12.08.2016	Copy of legal notice issued by the complainant
Ex.A10		Copy of photographs taken in the site

 

OPPOSITE PARTIES SIDE DOCUMENTS:-  Proof Affidavit – Closed

 

 

MEMBER                                                                                                                PRESIDENT