Tamil Nadu

South Chennai

CC/198/2017

T.N.Jyothi Mani - Complainant(s)

Versus

M/s.Arun Excello Homes Pvt Ltd - Opp.Party(s)

Party in Persion

12 Sep 2022

ORDER

Date of Complaint Filed : 20.04.2017

Date of Reservation      : 18.08.2022

Date of Order               : 12.09.2022

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,    : MEMBER II

 

CONSUMER COMPLAINT No.198/2017

MONDAY, THE 12^th DAY OF SEPTEMBER 2022

1.T. N. Jyothi Mani,

   S/o T.V. Natarajan.

 

2. T.J.Ravikumar,

   S/o T,N,Jyothimani,

  Represented by his power of attorney,

  49/1194, Jeevan Bima Nagar,

  Anna nagar West Extension,

  Chennai-600 101.                                                        ... Complainants                

 

..Vs..

M/s Arun Excello Homes Pvt.Ltd,

Represented by its GM-(Mktg),

Bhattad Towers,

18,west Cott Road,

Royapetth,

Chennai-600014.                                                         ...  Opposite Party

******

Counsel for the Complainant          : M/s. T.N. Jothi Mani

Counsel for the Opposite Party       : M/s. R. Kamala Rani

 

On perusal of records and after having heard the oral arguments of the Counsel for the Complainant and on endorsement made by the Opposite Party to treat written argument as oral arguments, we delivered the following:

ORDER

Pronounced byMember-I, Thiru. T.R. Sivakumhar., B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to pay a sum of Rs.2,00,000/- towards hardship and mental agony  and to pay a sum of Rs.1,00,000/- for deficiency of service and for the intension to cheat and for unethical practices along with cost of Rs.20,000/- towards litigation cost.

2.     The averments of Complaint in brief are as follows:-

The Opposite Party has floated a residential flats layout scheme under the name Four Greens @Temple Green -Phase 7 "in Mathur Village, Sriperumbudur Taluk, Kancheepuram District (Ex-1), and the Opposite Party has sent an SMS offering 915 sq.ft,double bedroom flat for an all inclusive price of 25 lakhs to attract customers. The Complainants visited the site on 07-01-2007 and the second Complainant filled up an application to book the flat 104 in I floor of the block 2 in the above layout in advance, provided he satisfies with the title after receiving the parent document from the Opposite Party. He did not pay any initial payment towards the booking advance and agreed to pay the same on receipt of Mother Document and after verifying the title deeds. For the same reason, the first Complainant even did not fill up and sign the application to book a flat. Moreover, the cost of the above flat 104 is quoted as Rs.30,46,950 which includes incidental charges of Rs.3,93,450/-as against Rs 25,00,000/- promised in the SMS. The Opposite Party insisted on an initial payment to enable him to send the parent document for our verification. The first applicant gave a cheque bearing no, 000009 drawn on Andhra Bank, Anna nagar, Chennai-600 040 for Rs 50,000/- and told him not to account the cheque till he provides us the mother document. He agreed to the same. But till date he has not sent the parent document. Having received the application for booking a flat signed by the second Complainant, accounted the cheque as booking advance for the above flat No. 104 and sent a provisional allotment which was not accepted by the second Complainant. He insisted on parent document to verify the title. Since the parent document was not sent to verify the title, he requested to refund the amount which was accounted in the second Complainant's name, though he has not made any payment. The Opposite Party has sent an acceptance letter imposing terms and conditions and asking the second applicant to return the letter to him within 5 days failing which the allotment letter together with terms and conditions attached thereto shall become a duly concluded contract and is binding since initial advance has been paid. The letter states that the allottee has examined the plans designs and specifications of the residential apartment and has agreed for the same which is entirely false. In either way, the Opposite Party says that the contract is concluded, even if the Complainant has not accepted the terms and conditions or not. In the allotment letter, it states In case of the cancellation of booking or withdrawal of application after allotment with in the next 30 days, the total amount paid by the allottee will be refunded in full without interest after deduction of prohibitive service charges of rs. 25,000/-. The second applicant has not made any payment: The first applicant has not submitted any application for booking a flat. Deduction of service charges of Rs.25,000/- from the payment made by the first applicant to the booking of the flat by the second applicant is unethical and highly deplorable. The Opposite Party's insistence of an initial payment to send the parent document for our verifying the title deeds and terming it as booking advance for the flat is illegal and unethical. The contract is concluded, whether the Complainant accepts the terms and conditions or not is again contradictory to the contract act. Again deduction of a large amount towards service charges which does not form part of the agreement is invalid and illegal, when the agreement is not accepted. When the agreement is not signed and accepted, the contract is void ab initio. Till date, the Opposite Party has not provided the Complainants the mother document to verify the title. Only when the title is clear, then only the flat will be booked and it forms part of the agreement. The agreement will be signed only when the Complainants accept the terms and conditions of the Opposite Party. When the agreement is accepted and signed, the contract is concluded. The agreement then provides the schedule of payments to be made including the booking advance, the penal provisions for various towards service charges which does not form part of the agreement is invalid and illegal, when the agreement is not accepted. When the agreement is not signed and accepted, the contract is void and initio. Till date, the Opposite Party has not provided the Complainants the mother document to verify the title. Only when the title is clear, then only the flat will be booked and it forms part of the agreement. The agreement will be signed only when the Complainants accept the terms and conditions of the Opposite Party. When the agreement is accepted and signed, the contract is concluded The agreement then provides the schedule of payments to be made including the booking advance, the penal provisions for various acts of both parties is mentioned. Hence the Complaint.

3. Written Version filed by the Opposite Party in brief is as follows:-

        This Opposite Party accepts the fact that the project "Four Greens @ Temple Green Phase 7", in Mathur Village, Sriperumbudur Taluk, Kancheepuram District, was launched by this Opposite Party for  construction of residential flats at an affordable cost to the public. With regard to the same advertisements were made in all social medical networking including by way of sending messages to make aware of the project of the housing scheme to the public at large. This Opposite Party submits that the Complainant had fixed up a date for visiting the site on 07.01.2007 and on full satisfaction opted to book a flat in the said project. Pursuant to the understanding arrived between the parties, the 2^nd Complainant signed the "Application for Allotment", on perusal of the entire form along with terms & conditions incorporated in the same. The 2^nd Complainant was allotted with flat No. 104, in 1" floor in block '2' of the said project. As per the stipulations the buyers should pay an amount of Rs.50,000/- as booking advance inorder to block the flat for the respective purchaser. It is pertinent to mention at this juncture that the 2^nd Complainant had also manually written in the application form that he would make the payment only on satisfaction of certain conditions on his own volition. The complaint has been field on a false pretext that the application was not signed by the Complainants. The Complainant had signed the same on the same date of booking the flat knowing fully well of the terms and conditions mentioned therein. The booking advance of Rs. 50,000/- was also paid by the 1^st Complainant vide Cheque No. "000009", dated 07.01.2017 drawn on Andhra Bank, Anna Nagar Branch, on 07.01.2017 on the same day of booking of the flat i.e on 07.01.2017. Per contra the 1^st Complainant has come forward with a false statement stating that no initial amount was paid. It is a fact to state that once a cheque is issued the same cannot be a namesake one and the issuance amounts to acceptance of the offer. On request made by the Complainant, the parent document had been sent to the Complainant by way of CD. Only after that this Opposite Party had sent the agreement for the acceptance to be given by the 2^nd Complainant who had booked the flat.  It is only after the parent document sent by CD, the Opposite Party had sent the agreement to be signed by the 2^nd Complainant, with the stipulated terms and conditions along with a time frame of 5 days for the contract to be concluded. It is only after the parent document sent by CD, the Opposite Party had sent the agreement to be signed by the 2^nd Complainant, with the stipulated terms and conditions along with a time frame of 5 days for the contract to be concluded. It is only after the Complainants having examined the plans, designs and specifications of the residential apartment, the agreement was expected to be signed and accepted by the Complainants. The Complainants are estopped from going back from their stand. The Complainants were fully aware that only 50% of the booking advance will be refunded on any cancellation made after the deduction of processing service charges of Rs.25,000/-. Further it is submitted that the Complainant on his own volition had also written in the form that "the balance amount of Rs.2,50,000/- will be paid on 28.02.2017 and the possession of the flat will be made before 31.03.2017 The 2^nd  Complainant has also mentioned by hand written statement that "If there is no rental compensation clause for delayed possession, full booking amount refunded”. Hence the Complainant having fully understood the terms and conditions, and having signed the "Application for Allotment", and also made the payment of Rs.50,000/- as booking advance, cannot go against the same on an ulterior motive without any fault on this Opposite Party. Even before the Complainant had booked the flat, the 70% of the entire construction of the apartments were completed and the completion certificate was also obtained from the authorities concerned. It is pertinent to mention at this juncture this project does not come under the purview of the recently enacted RERA,Act, 2016. Even assuming to be so the project comes under the non-planning area which would not fall under the said Act. Further the flats had also been handed over to the respective buyers even before the Complainant had booked the flat. It is to be mentioned that all the buyers had signed the agreement with the same terms and conditions and there can be no alteration made to this Complainant alone. If the Complainant is not willing to purchase the flat, he can as well cancel the flat and get the 50% ie.25,000/ of the booking advance as refund as per the terms and conditions, Mentioned in the Application for Allotment. The Complainant has represented himself as the Power of Attorney of the actual buyer of the flat i.e., the 2^nd  Complainant without filing any valid document to that effect. Hence prayed to dismiss the complaint.

4.   The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, Ex.A-1 and Ex.A-2 were marked. The Opposite Party submitted his Written Version and Proof Affidavit of Opposite Parties Ex.B1 to Ex.B4 was marked.

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:-

        The contention of the Complainants are that on 07.01.2017 they visited the site at Mathur Village, Sriperumbudur Taluk, Kancheepuram District, of the Opposite Party residential flats layout scheme under the name Four Greens @ Temple Green-Phase 7. The 2^nd Complainant had filled the application to book Flat No.104 in 1^st floor in block 2 in the above layout in advance, provided he satisfies with title after receiving parent documents from the Opposite Party. The cost of said flat was quoted at Rs.30,46,950/- with incidental charges as against Rs.25,00,000/- promised in SMS. The Opposite Party insisted for initial payment to provide parent documents, hence the 1^st Complainant gave a cheque bearing No.000009 for Rs.50,000/- drawn on Andhra Bank, Anna Nagar Branch and told not to account the cheque till the mother documents are provided. The mother/parent documents were not sent to them. Hence he requested to refund the amount which was accounted in 2^nd Complainants’ name, though the 1^st Complainant had not paid any amount. The Opposite Party had sent an acceptance letter imposing terms and conditions and to return the same within 5 days by the 2^nd Complainant, failing the contract would be concluded since the initial advance has been paid, as even  if the Complainant has not accepted the term and condition or not, the contract would be concluded. Further in the allotment letter in case of cancellation of booking as withdrawal of application after allotment with the next 30 days, it was agreed that total amount paid by the allottee will be refunded in full without interest after deduction of prohibitive service charges of Rs.25,000/-. Further contended that the 1^st Complainant has not submitted any application for booking and the 2^nd Complainant has not made any payment. Deduction of Rs.25,000/- towards service charges from the payment made by the 1^st Complainant to the booking of flat by the 2^nd Complainant was unethical and highly deplorable. Further contended that till date, the Opposite Party has not provided the mother documents to verify the title, only when the title is clear, then only the flat will be booked and it form part of the agreement, only when the agreement is accepted and signed, the contract is concluded, the agreement then provides payment schedule including booking advance and the penalty towards service charges which does not form part of the agreement is invalid and illegal. When the agreement is not accepted, when the agreement is not signed and accepted the contract is void ab initio.

        The contention of the Opposite Party in this regard is that only on full satisfaction the Complainant opted to book a flat in their said project. The 2^nd Complainant had signed the Application for Allotment on perusal of entire form along with terms and conditions incorporated. The 2^nd Complainant was allotted flat No.104 in the 1^st Floor in Block 2. To block a flat a sum of Rs.50,000/- to be paid as booking Advance by the purchasers, the 2^nd Complainant  had also written certain conditions and only on satisfaction he would make payment to the Opposite Party. The 1^st Complainant paid a sum of Rs.50,000/- towards booking advance on 07.01.2017 by way of cheque on the same day of booking and per contra had submitted that no initial payment was made. The issuance of cheque amounts to acceptance of offer. On request made by the Complainant, the parent documents had been sent by way of CD, only thereafter had sent the agreement for acceptance to the 2^nd Complainant who booked the flat. The terms and condition along with time frame of 5 days stipulated for conclusion of the contract. The Complainants were expected to sign and accept the same, as they have verified the plans, designs and specification of the residential Apartments. Hence the Complainants were estopped from going back from their stand. They are also fully aware of 50% of booking advance will be refunded on any cancellation made after deducting of processing  service charges of Rs.25,000/-. Further contended that the 2^nd Complainant on his own violation had agreed to pay a sum of Rs.2,50,000/- on 28.02.2017 and the possession of the flat will be made before 31.03.2017, further if there is no rental compensation clause for delayed possession, full booking amount to be refunded. Hence the Complainant having signed and made booking advance of Rs.50,000/- under Application for allotment, seeking refund in full without any fault on them, was only with ulterior motive, even before the Complainant had booked the said flat, 70% of construction were completed, completion certificate was also obtained. Further contended that if the Complainant was not interested to purchase the allotted flat he can cancel the booking and get 50% of refund as per the terms and condition of the application for Allotment. The 2^nd Complainant being the actual buyer of the flat, filed this complaint representing himself as power of attorney.

        On the discussions made above and on considering the facts and circumstances of the case as well as on perusal of the Exhibits marked on either side, it is clear that a flat No.104 in First Floor in Block-2 in project “Temple Green – Four Greens” located in Oragdam of the Opposite Party was  booked in the name of the 2^nd Complainant, as found in Ex.A-1. Receipt dated 10.01.2017 to confirm payment details and payment schedule, to be signed and sent within 5 days time failing which the said letter attached with the term and conditions would become a concluded contract since a booking advance of Rs.50,000/- had already paid. Further from Ex.B-1, it is clear that the 2^nd Complainant had signed the Application for allotment and paid a sum of Rs.50,000/- towards booking of the above said flat, by way of cheque, in fact the 2^nd Complainant had agreed to pay a balance amount of Rs.2,50,000/- and on 28.02.2016 (it should be 28.02.2017), and insisted for possession to be made before 31.03.2016 (it should be 31.03.2017) and also insisted that if there is no rental compensation clause for the delayed possession full booking amount to be refunded. From Ex.B-1 it is very clear that the 2^nd Complainant had accepted the terms and conditions mentioned in the Allotment application and the opposite Party had also agreed for the terms and conditions insisted by the 2^nd Complainant and only thereafter the 2^nd Complainant had signed the Allotment Application and booked Flat No.104 in 1^st Floor in block 2 and thereby had issued a cheque for Rs.50,000/- towards booking advance of the said flat. The Complainants though contended that they were not provided with the parent documents and had denied the submission made in the written version filed by the Opposite Party, they had not denied the version of the Opposite Party that “only on request the parent documents had sent by way of CD”, in spite of request made to send the parent documents by way of CD, pleading that the parent documents were not provided till date is not acceptable, as Ex.B-4, CD was marked and not objected by the Complainants. The Complainants had came out with fresh and new averments in the Proof Affidavit filed by them, after filing of the written version by the Opposite Party, which would clearly show that the Complainants had not approached this Commission with real and actual facts and even had not produced evidence in support of the averments made in the complaint. Further the Complainants had not approached or communicated seeking clarification regarding Ex.A-2 and had approached this Commission purely on assumption without obtaining any information or confirmation with regard to the repayments of the booking advance, and had filed a premature complaint, if not, the Complainants are well aware of that on cancellation of the booking of the subject flat would result in forfeiture of Rs.25,000/- after having agreed and signed the Allotment Application and paid Rs.50,000/- towards booking advance, Complainants are estopped from claiming refund of entire booking advance of Rs.50,000/- and the same is not legally  sustainable, when there is no fault on the Opposite Party. Hence, we are of the considered view that the Opposite Party had not committed any deficiency of service. Accordingly, Point No.1 is answered.

Point Nos.2 and 3:-

As discussed and decided point No.1 as against the Complainant, the Complainant is not entitled for any relief claimed in the Complaint and/or for any other relief/s. Accordingly, Point Nos. 2 and 3 are answered.

 

 

 

In the result the complaint is dismissed. No costs.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 12^th of September 2022.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	10.01.2017	Receipt for Rs.50,000/- issued by the Opposite Party which was paid by cheque dated 07.01.2017 drawn on Andhre Bank, Anna Nagar, Chennai – 600 040 by the Complainant.
Ex.A2	10.01.2017	Provisional allotment letter for the flat 104 in I floor of Block 2 in their Four Greens@Temple Green-phase 7.

 

List of documents filed on the side of the Opposite Party:-

 

Ex.B1	07.01.2017	Application for allotment
Ex.B2	07.01.2017	Cheque issue by the Complainant for an amount of Rs.50,000/- towards booking of a flat
Ex.B3	10.01.2017	Receipt issued by the Opposite Party
Ex.B4	-	Parent document CD

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT