Tamil Nadu

South Chennai

208/2011

Deepak Gothi - Complainant(s)

Versus

M/s.Annai Builders Real Estates Pvt Ltd - Opp.Party(s)

M/s.Triveni Associates

20 Jul 2015

ORDER

                                                                        Date of Filing :    20.07.2011

                                                                        Date of Order :    20.07.2015

 

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 II

 

                                         C.C.NO.208/2011

MONDAY THIS 20^TH  DAY OF JULY 2015

 

Deepak Gothi,

No.7, High Court Colony,

Villivakkam,

Chennai 600 049.                                           ..Complainant

                                                 ..Vs..

 

M/s. Annai Builders Real Estates Pvt. Ltd.

Rep. by The Manager,

Alpha Centre,

4^th Floor,

No.150 & 151 North Usman Road,

T.Nagar,

Chennai 600 017.                                         .. Opposite party.

 

 For the Complainant            :  M/s. Triveni Associates.  

 

For the  Opposite party        :  M/s. R. Gopinath & other

 

        This complaint is being filed by the complainant u/s 12 of the C.P. Act 1986 to refund the amount of Rs.1,00,000/- with interest and also to pay a sum of Rs.5,00,000/- as compensation  to the  complainant.

 

ORDER

 

THIRU. B. RAMALINGAM PRESIDENT

 

         

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

           After seeing the advertisements placed by the opposite party in daily papers, the complainant has contacted the opposite party about the housing project to be developed at Atulya II, Anakaputhur near Chennai.  They have convinced the complainant into booking two flats in the above project and the complainant has immediately made a payment of Rs.1,00,000/- on 19.4.2010 by way of cheque.  The opposite party has assured that the Poomi Puja for the construction of the above flats would be fixed during the first week of May 2010.    At the time of receipt of the payment from the complainant, the opposite party has assured that the project will be completed and the flats will be handed over on 10.12.2010.  Believing their words and assurances given in their letter dated 17.4.2010, the complainant has made the above payment and planned to shift to the above flats in the new year occasion of 2011. 

2.     The opposite party has mentioned that the next payment of  Rs.1,40,000/- within 30 days of booking of the above flats.  When the complainant had contacted the opposite party to make the above payment and enquired about the exact date  fixed for the Poomi Pooja they have given lame excuses and informed the complainant that further payments may be made after intimation  from their end.    The opposite party has fixed the date for Poomi Pooja only on 20.8.2010, nearly three months after the date actually told by them to the complainant.   When the complainant has enquired whether the plans have been got approved from the authorities, the opposite party has again evaded to give specific reply and also avoided to receive payment from the complainant.     He has enquired on various dates about the commencement of the work regarding the above project, but the opposite party has not given any concrete reply to him.  The opposite party’s constant reply was that the work will be started soon.  But only in the end of January 2011 they have got the plans approved from the authorities and sent a draft agreement for approval to the complainant.    When the complainant has enquired about the delay of nearly 10 months from March 2010 to commence the project and  when he  has required to know the exact date of completion of the project as the plans he already made in this regard has been spoiled by the enormous delay committed by the opposite party.   All of a sudden the opposite party has sent a notice dated 23.3.2011, that the complainant has failed to make further payments even after the lapse of eleven months and suppressed the whole truth.  They have also threatened that the allotment will be cancelled.  Accordingly the complainant has sent a legal notice through his lawyer dated 21.5.2011 to the opposite party in this regard and requested him to accept the payment as agreed and to handover the flats in time.  The opposite party has received the notice on 24.5.2011 but has not taken any fruitful action till the filing of this complaint.   As such the act of the opposite party is  amounts to deficiency of service and which caused mental agony and hardship to the complainant.   Hence the complaint. 

 

 

3.  Written version of   opposite party  is   as follows:-

The complaint filed by the complainant is not maintainable in law and on the facts of the case.   The opposite party does not admit any of the allegations contained in the complaint except those that are expressly admitted herein.    It is correct to the effect that the complainant had booked two residential Units namely 8A3 and 8A4 on 17.4.2010 in the project called Atulya II, Anakaputhur promoted by the opposite party and had paid a booking advance of Rs.1 lakh is correct.    The opposite party had issued an allotment confirmation letter to the complainant subject to terms and conditions of allotment and the complainant had signed the endorsement in the registration cum allotment form, as acceptance thereof, which is as follows:

        “I request you to grant allotment as mentioned above.  I confirm  having read and accept the terms and conditions laid out elsewhere in this registration cum allotment form and shall be binding on me”.

Hence it is evident that the complainant is fully aware of the fact that he has booked the Units subject to terms and conditions and it is pertinent to note that the complainant has not entered into any sale agreement or any such agreement with the opposite party, confirming the transaction.   Since the complainant failed to adhere to the stage payments the opposite party after having waited patiently for one year from the date of booking by the complainant, had put the complainant on notice vide their letter dated 23.3.2011 that they cannot wait indefinitely and hence they have no option expect to cancel the allotment made to the complainant.   The complainant had received the first letter dated 23.3.2011 sent by the opposite party by registered Post and had sufficient time to respond until May 13^th which he has failed to do.   Hence there is no deficiency in service on the part of the opposite party and  prays to dismiss the complaint.

4.     Complainant has filed his Proof affidavit and  Ex.A1 to Ex.A8 were marked on the side of the complainant.   Opposite party has filed his proof affidavit and Ex.B1 to Ex.B4 were marked on the side of the opposite party.

 

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

1. Whether there is any deficiency in service on the part of

    the opposite party?

 

2. To what relief the complainant is entitled to?
3.  

6.  POINTS : 1 & 2

Perused the complaint, written version filed by the opposite party, proof affidavit filed by both side  and the documents Ex.A1 to Ex.A8 filed on the side of the complainant and Ex.B1 to Ex.B5 filed on the side of the opposite party and also considered the both side arguments.   Considered the both side case there is no dispute that the complainant have approached for purchase of two flats proposed to be constructed and to be sold by the opposite party under the proposed project, for purchase of two flats as mentioned  in Ex.A1 by the complainant  booked for the same with sanction of allotment and payment of Rs.1,00,000/- towards booking for the said two flats have been paid by the complainant and received by the opposite party.  The complainant further stated that without taking any steps for starting construction of the said flats the opposite party have sent notice dated 23.3.2011 stating that the complainant have failed  to make further payment even after lapse of 11 months and suppressed whole truth and also threatened the complainant that the allotment would be cancelled.   However the opposite party having made delay in starting construction and get approval for the plan for the construction, the above notice sent by the opposite party is not maintainable.   Further the complainant stated that the opposite party have sent letter dated  13.5.2011 by which unilaterally cancelled the allotment of the flats booked by the complainant which is not proper on the part of the opposite party.   The opposite party without sending any demand for payment as mentioned in the draft agreement the said cancellation of our booking of flats by the opposite party in the said notice is not valid in law.  Further despite of several approach made by the complainant, the opposite party have not got the approval for the construction of the building and not entered into a construction agreement with the complainant and not started the construction.   Having defaulted on their part the opposite party have also cancelled the allotment booked by the complainant for purchase of the flats is also not valid in law and as such the opposite party have committed deficiency of service and the complainant claims to return of the said amount of Rs.1,00,000/- paid towards the booking of the flats to the opposite party with 24% interest and also compensation of Rs.5,00,000/- to the complainant. 

7.     Whereas the opposite party have stated that as per the condition mentioned in the receipt for the booking of flats by the complainant the further payment of Rs.1,40,000/- to be paid within 30 days from the date of booking and also another payment are to be made by the complainant without default as mentioned in the schedule of payment in Ex.A1 booking receipt.  Having defaulted by the complainant not making further payment till 23.3.2011 the opposite party has sent notice to the complainant dated 23.3.2011, requesting to make further payment despite of the said receipt of the notice by the complainant they neither paid the amount nor given reply, they remain without response.    The opposite party again issued notice dated 13.5.2011 by cancellation the booking of allotment of the complainant for the purchase of the said flats and also due to non-payment of further payment as per the schedule of payment mentioned in allotment.  Therefore the act of opposite party’s in accordance to the agreed terms mentioned in the allotment receipt and there is no deficiency of service on the part of the opposite party.  Therefore the complaint is to be dismissed.

8.     The Ex.A1 the allotment receipt proves that there is a payment schedule for the further payment of the allottee i.e. complainant the said allotment.  As such the complainant would have paid a sum of  Rs.1,40,000/- within 30 days from the date of this booking as mentioned in the payment schedule mentioned in Ex.A1.   Further apart from the payment of Rs.1,00,000/- made by the complainant for booking.   There is also another particular of payment within 60 days at the stage of foundation, roof, flooring and handover etc. this has not been denied or disputed by the complainant.  However though the complainant raised grievances that the opposite party having allotted for purchase of the flats for the complainant at the receipt of payment of booking of the said flats a sum of Rs.1,00,000/- the opposite party have not taken any steps for construction of the building.   But not averred  anything about the further payment to be paid by the complainant as mentioned in the allotment receipt Ex.A1 as per the payment schedule. 

9.     Further though the complainant has stated in the complaint that the complainant has approached several times to the opposite party regarding starting of construction and entered into an agreement etc there is no iota proof for the same on the side of complainant.  But it is the fact that cannot be denied by the complainant that they have not made further  payment as per the payment schedule mentioned in Ex.A1 the allotment by  the opposite party.  Therefore as contended by the opposite party that the complainant have not paid any further payment as mentioned in the above schedule in the allotment receipt Ex.A1 the opposite party have sent notice to the complainant on 23.3.2011 which is filed as Ex.A5 by the complainant itself is proved that after made payment of booking and got allotment on 17.4.2010 have not paid any further payment despite of their demand and it is also mentioned in notice that the opposite party cannot wait indefinitely as such they have no option except to cancel the allotment  and the sum  of Rs.1,00,000/-  paid by the complainant would be refunded.  There is no evidence on the part of the complainant that even after receipt of this notice the complainant have made any attempt to make further payment to the opposite party as admitted in the said notice.  

10.    The opposite party again sent notice Ex.A6 dated 13.5.2011 mentioning that even after receipt of notice dated 23.3.2011 and 24.3.2011 the complainant have not paid any  further payment  towards the said allotment, they cannot wait indefinitely to hear from the complainant and the opposite party there by cancelling the housing allotment with immediate effect.  Therefore as contended by the opposite party the complainant have not come forward to make further payment as agreed by them under Ex.A1 the allotment order mentioned terms.  Therefore the opposite party has no other option except to cancel the said allotment by sending proper notice to the opposite party by Ex.A5 & Ex.A6 and as such the act of the opposite party is not considered to be a unlawful act or  considered to be a deficiency of service on their part.  Therefore even the notice sent by the complainant to the opposite party dated 23.3.2011 which is after the above said notice issued by the opposite party to the complainant i.e. Ex.A5 & Ex.A6.   Therefore the complainant having remained without  making further payment as per the allotment for which the opposite party had to issue notice of further payment even for such notice since the complainant has not responded properly and not paid further payment the opposite party has compelled to cancel the allotment by notice Ex.A6, dated 13.5.2011 is acceptable.    Therefore the complainant having committed default in making payment as agreed with the opposite party at the time of booking of flats, finding fault with the opposite party  has not started the construction and not even entering the construction agreement  are not sustainable as not on valid reason.   Therefore the deficiency of service attributed by the complainant against the opposite party in this regard is not on valid ground and also not proved.   Therefore the complainant claim of compensation against the opposite party on that ground is not sustainable.

11.    However the booking of flats made by the complainant with the opposite party for purchase of two flats mentioned in the allotment Ex.A1 was cancelled as per Ex.A6 which is proper as mentioned in Ex.A5 notice issued by the opposite party the complainant is entitled for the return of the payment of Rs.1,00,000/- which was paid by the complainant to the opposite party towards the booking of the flats.  Though the booking was cancelled as Ex.A6 notice issued by the opposite party, the said amount has not been refunded to the complainant till this date.  As such the amount was retained by the opposite party till this date and out of which the opposite party would have benefited.  Therefore the opposite party is liable to return the said amount of Rs.1,00,000/-along with interest at the rate of 12% per annum from 13.5.2011 to till the date of payment and also to pay a sum of Rs.3,000/- towards the litigation expenses to the complainant and as such the points 1  & 2 are answered accordingly.   

  In the result the complaint is partly allowed.   The opposite party is  directed to return the amount of Rs.1,00,000/- (Rupees one lakh only) along with the interest at the rate of 12% per annum from 13.5.2011   to till the date of payment and also to pay a sum of Rs.3,000/- (Rupees three thousand only) towards the litigation expenses to the complainant  within six weeks from the date of receipt of this order.

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the 20^th day of July 2015.

 

MEMBER-II                                                                                                       PRESIDENT

Complainant’s side documents :

Ex.A1- 17.4.2010 – Copy of letter from the opposite party.

Ex.A2-            -         - Copy of letter intimating Bhoomi pooja.

Ex.A3-            -         - Copy of approved building plan.

Ex.A4-            -         - Copy of draft agreement.

Ex.A5- 23.3.2011   - Copy of letter from  the opposite party.

Ex.A6- 13.5.2011   - Copy of cancellation letter from the opposite party.

Ex.A7- 21.5.2011   - Copy of legal notice by the complainant.

Ex.A8- 24.5.2011   - Copy of Ack. card.

Opposite party’ side documents : -

Ex.B1-  17.4.2010 - Copy of registration cum allotment form.

Ex.B2-           -         - Copy of customer statement with ledger account extract.

Ex.B3-           -         - Copy of terms and conditions.

Ex.B4-  23.3.2011  - Copy of letter and ack. card issued to complainant.

Ex.B5- 13.5.2011   - Copy of letter and Ack.  for cancellation.

 

MEMBER-II                                                                                                       PRESIDENT