Tamil Nadu

South Chennai

CC/93/2017

K.Chandrasekar - Complainant(s)

Versus

M/s.Casa Grande Pvt Ltd. - Opp.Party(s)

Shivakumar and Suresh

03 Aug 2022

ORDER

Date of Complaint Filed : 21.02.2017

Date of Reservation      : 11.07.2022

Date of Order               : 03.08.2022

 

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.93/2017

WEDNESDAY, THE 3^rd DAY OF AUGUST 2022

 

K.Chandrasekar,

59/5, Flat A, Nutech Mangalam,

Third Main Road,

Alwarthirunagar Annexe,

Chennai – 87.                                                                                                                                                                         ... Complainant                   

 

..Vs..

M/s. Casa Grande Private Limited,

Rep. by its Managing Director,

NPL Devi, III, 5^th Floor,

LB Road, Thiruvanmiyur,

Chennai – 600 041.                                                                                                                                                            ...  Opposite Party

 

******

Counsel for the Complainant          : M/s. Shivakumar and Suresh

Counsel for the Opposite Party       : M/s. S.R. Sudhanraj

 

        On perusal of records and after having heard the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Party, we delivered the following:

ORDER

Pronounced by Member-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 Return the advance amount of Rs.2,00,000/- with interest @ 18% p.a from 02.02.2016 to till the date of payment and to pay a sum of Rs.3,00,000/- towards compensation for retaining the Booking Advance amount from February 2016 to May 2016 and to pay a sum of Rs.3,00,000/- for the mental agony, time, effort, costs and physical strain caused to the Complainant along with cost.

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

The case of the complaint is that the Opposite Party had promoted a conglomeration of plots in the name of Casa Grande – Aldea in the land situate at Thoraipakkam in the year 2015 and they had given advertisements on various dates through websites and had also brochures about the sid project. The said advertisement and brochures gave a clear picture of the features that would be provided as part of the project within the complex.  The Complainant having been attracted by the advertisements and the brochures, he was willing to purchase the flat in the above said project and he had paid a sum of Rs 36 Lakhs on 17.11.2015 and 20.11.2015 as advance amount and signed the Booking Form in which the Opposite Party had also issued the receipt for the above payments. It is pertinent to mention that at the time of signing the Booking Form one Mr.Mohammed Imran, who came to Complainant residence and got his signature in the booking form, the Complainant requested the Opposite Party many times to provide the copy of the same in which they had also agreed and failed to provide the copy. The Opposite Party sent the allotment letter dated 17.11.2015 stating that the Complainant had allotted the flat in the Project called CG aldea, Unit Type 4BHK+3T for the extent of Super Built Area (sft) 1,919.00. Subsequently he had visited the site on 27.11.2015 and sent a mail on 01.12.2015 about the observation and few correction of their workmanship which has been replied by on 11.12.2015 stating that that whatever extra work beyond the specification will be done at extra cost. On 06.01.2016 the Complainant had a meeting with one Mrs. Suganya Mahesh at the Opposite Party head office and immediately on 07.01.2016 had had sent a mail asking for the clarification about the Over Head Tank Provision, installation or borewell pump to take care of crisis situation, water test report for the water brought in by tankers, with regard to the amenities and indoor games which is mentioned in the technical specification. On 14.01.2016 the Opposite Party had sent a mail that will clarify about the amenity by end of January 2016 and on 19.01.2016 once again received a mail stating that indoor games will be expected and also reminding him about his payments. On 25.01.2016 he had received a mail from one Mrs. Jyothika, AVP- customer care replied that they have installed pneumatic system and hence there will not be any Over Head Tank even though the same is mentioned in the technical specification. Because of the above technical deviation against the one mentioned in the technical specification, the Complainant was not interested to proceed with the project and hence sent a mail dated 02.02.2016 for cancellation of his booking of the flat mentioning about the technical and also for sentimental.casons. After receiving the mail from the Complainant for three months ie. tn May, 2016 for the reasons best known to them. The Complainant states that the Opposite Party had repaid two cheques on 12.05.2016 for a sum of Rs. 32,80,796/- and another cheque on 21.05.2018 for a sum of Rs. 19,204/-totally for a sum of Rs. 33 Lakhs without mentioning about the deduction of charges as mentioned in the alleged booking form On 10.06.2016 he had sent a letter to the Opposite Party asking for the repayment of deducted amount of Rs 2 lakhs with interest and reasons for retaining the advance amount for more than three months. On 25.06.2016 the Opposite Party had replied through their legal department that as per the Booking Form Cated 15.11.2015, which clearly mentions the 20% of charges against the cancellation of booking, which accepted by him as mentioned under the Payment Details in the Booking Form. It is pertinent to mention that at the time of booking the flat the Opposite Party had obtained signature from the Complainant in the alleged Booking Form which was not provided to him and hence he was not aware of the terms and conditions mentioned therein and the Opposite Party have put into strict proof of the same. Obtaining signatures in forms and not providing copies of the same is clearly misuse of the Opposite Party dominant position and contrary to established best consumer practices. Court have held that proper and due information should be share and furnished to the customer. The Complainant states that even though the Opposite Party had received the mail in the month of February 2016 they had retained his booking advance till May, 2016 illegally without any valid reasons and deducting a sum of Rs. 2 Lakhs as 20% of the cancellation booking is grossly negligent, insensitive and reckless apart from being a bad consumer practice. Inspite of repeated reminders through letters, mails and phone calls they have not com forwarded to settle the same and he has not received any refund of the above said amount till date. The Complainant states that the act of the Opposite Party in not refunding the balance advance amount of Rs. 2 Lakhs and also delay in refunding the advance amount of Rs. 33 Lakhs is nothing but clear deficiency in service their part. The Complainant further states that because of the poor service and delay in refunding the advance amount he has been put to great hardship and unbearable mental agony by running pillar to post for no fault on his part and hence the Complainant is claiming a sum of Rs. 3,00,000/- towards compensation and also claiming a sum of Rs. 3,00,000/- for the mental agony, time effort, costs and physical strain caused to the Complainant. The Complainant states that he had sent the legal notice through his counsel on 12.09.2016 calling upon the Opposite Party to return the advance amount of Rs. 2,00,000/- with interest @ 18% p.a. from 02.2.2016 to till the date of payment along with the a sum of Rs. 3,00,000/- towards compensation within ten days, the notice has been received by the Opposite Party, but they have neither sent any reply nor settled the amounts as claimed in the notice and therefore the Complainant once again send the Reminder Notice on 2.11.2016 which is also received by them but the Opposite Party has not come forward with a response. In view of the above, the act of the Opposite Party also clearly amounts to unfair trade practice and hence they are liable to refund the amount with interest along with compensation. Hence the complaint.

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

        The Opposite Party are the reputed Builders and Villa Developers, having completed more than 50 projects and having a very good customer track record for more than a decade. The Opposite Party states that, in the due course of their business, they had initiated villa project known as "Casa Grande Aldea" at Thoraipakkam, Chennai. The Complainant personally knowing abou the Opposite Party reputation has approached the Opposite Party out of his own wish and intended to buy a Flat, bearing No.B23, Block 1. Il floor, from the Project. The Complainant has paid a sum of Rs.35,00,000/-, as the Complainant was personally aware and satisfied with the terms and conditions of the Opposite Party. The Complainant has submitted a booking form for the Flat with personal relevant information, The Complainant after going through the stipulated conditions for cancellation charges has verified, signed and submitted the Booking form to the Opposite Party for purchasing the Flat. The Opposite Party states that, paragraphs 1 and 2 of the Complaint is about the Complainant personal details and that of the Opposite Party which does not require any reply. With regard to the allegation that the advertisement and Broucher gave clear picture of the features of the project, the Disclaimer clause in the broucher clearly envisages that "Visual representation such as layout plans, finishes, illustrations, pictures, photograph and drawings contained in the materials are artists impression only and not representation of fact. Such materials are for general guidance only and should not be relied upon as accurately describing any specific matter. All information, specifications, plans and visual representations contained in the materials are subject to changes from time to time by the developer and/or the competent authorities and shall not form part of the offer or contract." The Complainant wantonly has not filed the entire broucher along with the Complaint as a document in order create an impression that the Complainant is an innocent person. The Complainant himself has admitted that having been attracted by the advertisements and brouchers he booked the flat with them by submitting the booking form and payment of Rs.35,00,000/ during the month of November 2015. It is pertinent to point out that the Complainant never demanded Opposite Party to provide the booking form as falsely alleged by him. Further the Emails sent by the Complainant clearly shows that the Complainant requested for some modifications and alterations in his flat. They through their reply have clearly stated some of the alterations works as demanded by the Complainant shall be done at an extra cost and some of the alteration works could not be done since all the works completed in the flat. After receipt of clarification mail from the Opposite Party the Complainant vides his mail dated 23.12.2015 has confirmed that he will enter into sale and construction agreement on a day which will be later communicated. Believing the representation of the Complainant the Opposite Party has prepared and set all the paper works and formalities to be entered between the Complainant and them. All the subsequent emails and queries sent by the Complainant have been replied by their executives, has been responded and replied properly either orally or by emails. The Complainant by email dated 05.01.2016 has confirmed that he will enter sale agreement on 06.01.2016, for his flat. The Complainant all of sudden wilfully dragged on execution of agreement for the best reason known to him, but in order to escape from his liability the Complainant sent emails to them to create an impression that the delay of entering agreement is because of them. The real fact of cancellation of the flat by the Complainant is self explained in his email dated 02.02.2016 and 11.03.2016 which are filed by the Complainant as document number 4 bearing page No.20 and 21 and the Complainant has instructed and aware about the charges for the cancellation. Besides the Complainant himself has felt sorry for withdrawing the flat booking from the Opposite Party. The Complainant has clearly stated that due to his personal and financial reason he decided to withdraw the booking of flat. But, the now Complainant in this complaint has falsely alleged that due to technical reason he has withdraw from the project, which is not at admissible either by evidence submitted by the Complainant or on law and facts.  They has clearly explained in their reply notice dated 25.06.2016 to the Complainant that the basis of deduction has been done from the amount paid by him for booking the flat. The Complainant vide his email dated 02.02.2016 and 11.03.2016 has clearly consented for cancellation charges. Upon his request for minimum cancellation charges they deducted only a sum of Rs.2,00,000/- on humanitarian grounds has waived the stipulation for forfeiture of the entire amount paid by the Complainant, for not entering agreement within the stipulated time of 40 days from the date of booking. They were never negligent, insensitive and reckless as falsely alleged by the Complainant. It is the Complainant who has grossly violated all the stipulated conditions for his own whims and fancies by throwing mud against them for the fault of the Complainant. The deduction done by the Opposite Party to the tune of Rs.2,00,000/- is proper and maintainable under law. The Complainant is not at all entitled for any claim as alleged in these paragraphs. The deduction has been done by them within the purview of stipulated condition and upon consideration of request made by the Complainant in his emails for minimum cancellation charges, now it is not open to the Complainant to run back from his words and liability for the loss incurred to them due to the cancellation of the flat by the Complainant for his own reasons. As per the disclaimer clause they have reserved their right to alter, modify and change the plans, designs, specifications etc., of the flat in their project and the same is known to the Complainant on perusal of the broucher and booking form. Since the Complainant is an educated person who is aware about the stipulations in booking the flat, now he cannot claim innocence for his faults and liabilities. This fact is well known to the Complainant, but now the Complainant to throw mud on their reputation has come out with an unacceptable allegation. They highly deny the allegation of deficiency in service, because as stated earlier they are well reputed builder who has committed to its customer and having good relationship with their customer society at large, in order to hide his default, the Complainant now purposefully making allegations against the Opposite Party. Being an educated person the Complainant without any basis shifting his liability to the Opposite Party. They being customer oriented reputed builder have never cheated any of their customers including the Complainant. The Complainant has suppressed many material facts and has approached this Hon'ble Commission with unclean hands. The cancellation charges raised by the Opposite Party are not at all illegal at any point of time as alleged. It is the Complainant in order to save his skin has come out with imaginary allegations. This Opposite Party invokes the Complainant to remember about the Opposite Party's support in every point of time through its employees, without remembering the support rendered by them, now the Complainant in order run out from his responsibility has throwing baseless allegations against the Opposite Party.  They strongly object to the allegation that they have been involved in a bad consumer practice. They holds a good reputation for the past decade and their brand image speaks about their clients satisfaction. In order to tarnish their image the Complainant had taken all illegal methods and back end measures. They strongly and vehemently deny the allegations in the Complaint as devoid of merits. They  never being negligent and deficient in rendering its services as alleged by the Complainant. Further, the Complainant in order to escape from his liability has alleged about monetary loss and mental agony which he has not suffered at all. The notice sent by the Complainant was duly replied by them with thorough information. There is no deficiency of services on their part and on the other hand it is only the default of the Complainant which clearly proves the attitude of the Complainant from changing his demands at his own whims and fancies and shall compel them to act according to his own wishes.  Hence the complaint is to be dismissed.

4.      The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-10 were marked. The Opposite Party submitted its Proof Affidavit and Written Arguments. On the side of the Opposite Party, documents Ex.B-1 to Ex.B-2  were marked.

5.     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:-

It is not in dispute that the Complainant had booked a 4BHK Flat measuring super built area of 1919 sq.ft together with Undivided share in land measuring 846 sq.ft, with Opposite Party for a total Sale Consideration of Rs.36 Lakhs and had paid said total Sale Consideration on various dates to the Opposite Party.

The Dispute arose when the Complainant had enquired about various issues as found in Page nos.6 to 32 of Ex.A-4, on specific enquiry about  the Over Head Tank (OHT) it was informed by the Opposite Party about pneumatic water system and the same would be provided instead of over head tank, as found in Page No.18 of Ex.A-4, as the Complainant sentimentally was very much needed Over Head Tank as agreed by the Opposite Party had approached the Opposite party and the Opposite party was stubborn in their stand of providing modern technology, the Complainant was left with no other option to cancel the allotment of his Flat for sentimental and technical reasons and had sought for refund of consideration paid by him after deducting minimum charges. The opposite Party had refunded a sum of Rs.32,80,796/- after deducting a sum of Rs.2 Lakhs, being claimed by the Complainant in his complaint.

The Point to be considered by this Commission is that the deduction of Rs.2 lakhs made by the Opposite party is legally valid and to what amount the Opposite Party is entitled for deduction.

        As per the Brochure, the Opposite Party had agreed to provide Over head Tank (OHT) to the Flat booked by the Complainant as found in Ex.A.3 and when the Opposite Party without informing the Complainant had decided to provide pneumatic water system without providing Overhead tank, which resulted in cancellation of flat by the Complainant. The Contention of the Opposite Party that they have deducted a meagre sum of Rs.2 Lakhs as they are entitled for deduction of 20% on the total consideration which was paid in advance and the Complainant too had agreed for deduction.

On careful reading of the Exhibits on both side, Ex.A-3 Brochure, wherein the Opposite Party had agreed to provide a over head tank and by Ex.A.4 (Page nos.12, 13, 15, 16, 17) the mail Communication on various dated during January, 2016 sent by the Complainant to the Opposite Party, enquired about the provision of Over head tank, the Opposite Party by Email dated 25.01.2016 as found in Ex.A.4(page no.18) informed about provision of Pneumatic water system other than Over head tank, the Complainant had intended to cancel on sentimental and technical reasons as found in Ex.A.4 (Page no.20), though the Complainant by Ex.A-4 (Page No.21) expressed to keep the minimum amount for procedural working, the Opposite Party is entitled in the event of cancellation 20% of the Booking amount will be charge, as evidenced from Ex.B-1 filed by the Opposite party and as per Ex.B-1 a sum of Rs.2,00,000/- has been paid as advance at the time of booking and hence the Opposite Party is entitled for 20% deduction on Rs.2,00,000/- as cancellation charges, which amounts to Rs.40,000/- and the deduction of Rs.2,00,000/- by the Opposite Party is not justifiable and against the agreed terms and conditions and the same is not legally sustainable.

On the facts and circumstances of the case, this Commission holds that the deduction made by the Opposite party as against the agreed terms and conditions in spite of failing to provide the Overhead tank as agreed by the Opposite Party which resulted in cancellation by the Complainant, clearly amounts to deficiency of service and thereby had caused mental agony and monetary loss to the Complainant. Therefore, this Commission is of the considered view that the Opposite Party had committed deficiency of service.  Accordingly Point No.1 is answered.

Point Nos.2 &3:-

As discussed and decided point no.1 against the Opposite Party, the Complainant is entitled for refund a sum of Rs.1,60,000/-, being a sum of Rs.2,00,000/- deduction made by the Opposite Party as against the entitled deduction of 20% on booking amount, i.e, 20% on Rs.2,00,000/- amounting to Rs.40,000/-, together with interest on Rs.1,60,000/- at the rate of 9% per annum from 02.02.2016 till the date of order and entitled for a sum of Rs.25,000/- towards mental agony caused to the Complainant, along with cost of Rs.5,000/-.Except the reliefs granted herein, the Complainant is not entitled for any other relief/s. Accordingly Point Nos.2 and 3 are answered.

In the result this complaint is allowed in part. The Opposite Party is directed to refund a sum of Rs.1,60,000/- (Rupees One Lakh Sixty Thousand Only) (as  Rs.2,00,000/- is deducted instead of Rs.40,000/- which the Opposite Party is entitled) together with interest @ 9% p.a from 02.02.2016 till the date of this order, and to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) towards mental agony along with costs of Rs.5,000/- (Rupees Five Thousand Only) within 8 weeks from the date of the order, failing which the Complainant is entitled to recover the above said amounts with interest at the rate of 9% per annum from the date of the order till the date of realization.

In the result the Complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on  3^rd day of August 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	17.11.2015	Copy of Allotment Letter issued by the Opposite Party
Ex.A2	17.11.2015 & 20.11.2015	Copy of Receipts issued by the Opposite Party
Ex.A3		Copy of Specification mentioned in the Brochure of the project issued by the Opposite Party
Ex.A4		Copy of Mail communications between the Complainant and the Opposite Party
Ex.A5	30.05.2016	Copy of Letter from the Complainant to the Opposite Party
Ex.A6	01.05.2016 & 07.05.2016	Copy of Cheques issued by the Opposite Party
Ex.A7	25.05.2016	Copy of Letter from the Opposite Party to the Complainant
Ex.A8	12.09.2016	Copy of Legal Notice sent by the Complainant through his counsel to the Opposite Party
Ex.A9	28.11.2016	Copy of Reminder Notice sent by the Complainant through his counsel to the Opposite Party with ack.
Ex.A10	11.02.2016	Copy of email sent by the Complainant to the Opposite Party

 

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

 

Ex.B1	-	Copy of Booking Form
Ex.B2	-	Copy of Photocopies

 

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT